text:
    PEOPLE v. SCHOTTEY.
    Intoxicating Liquors — Sunday Closing.
    A saloon is open, within the contemplation of 3 How. Stat. § 2283e, requiring saloons to be kept closed during Sunday, where a door leading from the saloon into a hallway is left open, and people are allowed to enter the hallway, which does not connect with any room other than the saloon.
    Exceptions before judgment from superior court of Grand Rapids; Burlingame, J.
    Submitted January 28, 1898.
    Decided February 16, 1898.
    John Schottey was convicted of violating the liquor law.
    Conviction affirmed.

      Dunham & Thornton, for appellant.

      Fred A. Maynard, Attorney General, and Frank A. Rodgers, Prosecuting Attorney (Rodgers, McDonald & Corwin, of counsel), for the people.
   Long, J.

The respondent was convicted on a jury trial in the superior court of Grand Rapids upon the charge of having kept his saloon open on Sunday, the 1st day of August, 1897. The cause comes into this court upon exceptions before sentence. The assignments of error are all based upon portions of the charge of the court.

It appears that the saloon of the respondent is a building about 25 by 40 feet. In the front part is the saloon. Back of this are the living rooms. There is a front door to the saloon, opening out upon the street, and at the rear is a door opening into the living rooms. On the north side of the saloon is a hallway about 5 feet wide by 16 feet long, with a front door to the street and a side dooi opening into the saloon. There is no way of getting from this hallway into the living rooms except through the saloon. The people introduced as a witness Mr. Hale, a police officer of the city, who testified that on the morning in question he saw the respondent, with three others, go into this hallway, the side entrance to the saloon; he followed, stepped into the hallway, and saw the three men there, with the door of the saloon wide open, and the respondent’s bartender near the bar; that the respondent said he was not there for any business, but that the men were there to inquire about some men from Jackson. The respondent testified that the men came into the hallway, but did not go into the saloon; that one asked for tobacco, and he stepped into the saloon, got it, and gave it to him. He further testified that the bartender passed through the saloon that day, though the bartender himself denied that he was there on the occasion testified to by Mr. Hale.

In view of the testimony of the respondent, it is unnecessary to discuss the questions raised upon the charge. Upon that testimony it appears that the saloon was not closed, within the meaning of section 2283e, 3 How. Stat.; and the court might very properly have directed a verdict of guilty. People v. Richmond, 59 Mich. 570; People v. Kirsch, 67 Mich. 539; People v. Lyng, 74 Mich. 579; People v. Ackerman, 80 Mich. 592; People v. Neumann, 85 Mich. 98; People v. Repke, 103 Mich. 459; People v. Hawkins, 106 Mich. 479. In the last case it was said:

“It is settled by former adjudications that it is the duty of the jury to take the law from the court, and that, where there is no conflict in the evidence, and the defendant in open court admits facts legally constituting an offense, the court may so state, and even go so far as to direct a verdict. In this case the defendant had practically sworn to his own guilt.”

So in the present case the respondent admitted that the saloon was open on the occasion when these men were in the hallway, and that the bartender passed through the saloon on that day.

But it is contended by the learned counsel for the respondent that the facts shown do not warrant the conclusion that the saloon was open for the purpose of doing business, and that the respondent and his family had the right to go into the saloon, or pass through it; and also that the bartender was a member of respondent’s family. The situation of the rooms in this building is very peculiar. This hallway has no opening, aside from the outside entrance, except into the saloon. In order to go into the living rooms in the rear it is necessary to pass through the saloon, and in passing from the living rooms to the front of the building it is necessary to go into the saloon. Both this side entrance from the hallway and the door to the living rooms were open on that day. The statute means that saloons shall be kept closed the first day of the week, and compliance with it means that all the doors and openings shall be kept closed, whether in the front or rear. It is apparent that this hallway was made the runway from the street into the living rooms by passing through the saloon. It was immaterial whether any liquors were sold there that day or not. As was said by Mr. Justice Morse in People v. Cummerford, 58 Mich. 331:

“When the statute requires the doors to be closed, it means that no one shall be inside, or get inside thereafter, before lawful hours, at least with the consent of the defendant or his authorized agents. We had supposed the meaning of the term ‘closed door,’ under the statute, had been fully heretofore set forth by this court in the cases of Kurtz v. People, 33 Mich. 282, People v. Waldvogel, 49 Mich. 337, People v. Blake, 52 Mich. 566, and others. It is not alone the intent or purpose for which the saloon is kept open that is offensive to the law, but also the opportunity furnished persons to obtain liquors at the hours and on the days prohibited by the statute.”

The object of the statute was to cut off all subterfuges or excuses for the violation of the statutory inhibition, and tbe keepers of such places must keep them closed at their peril. People v. Higgins, 56 Mich. 159. There was a front door to this saloon, opening from the street. To go into the saloon, the hallway was not necessary. The hallway did not lead into the living rooms, but into the saloon. It was into this hallway the young men were taken .on the morning in question. Confessedly, that door was open, and the door from it into the saloon was open. This was a plain violation of the act.

The conviction must be affirmed, and the court below directed to proceed to judgment.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    TRITT v. HOOVER.
    Boundaries — Government Survey —Dispute—Parol Adjustment.
    The rule that a boundary line, long treated and acquiesced in as the true line, becomes the legal boundary of the premises, regardless of the result of new surveys, is applicable to a case where the owners of premises divided by a township line, agreeing that the government surveyed line was crooked and incorrect, established by parol, and marked by a fence, a different line, in which they acquiesced for upwards of SO years.

    Error to Cass; Coolidge, J.
    Submitted February 1, 1898.
    Decided February 16, 1898.
    Ejectment by Peter A. Tritt against Michael W. Hoover. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John E. Carr and Edward Bacon, for appellant.

      Harsen D. Smith, for appellee.

       On the question of adverse possession due to ignorance or mistake as to boundaries, the authorities are collected in a note to Preble v. Maine Cent. R. Co., (Me.) 21 L. R. A. 829.

   Long, J.

This is an action of ejectment for a strip of land about 8 feet wide by 40 rods long, between the two farms of the parties. Each claims the land. It appears that in 1830 William Garwood and Lewis Edwards, Sr., became the owners of adjoining farms in Cass county. The Edwards farm was immediately north of the Gar-wood farm, and in the town of P.okagon, while the Gar-wood farm was in Howard township; the two farms being divided by the township line. For many years there was no division fence between them, but some time prior to 1840 a lane was laid out, east and west, between the farms, supposed to be near the township line. This lane was used in common by the parties. About the year 1840, Edwards and Garwood decided to establish a division line, so that a line fence might be erected. Mr. Edwards claimed that the survey made by the government surveyor was run too far north, and was crooked. For the purpose of ascertaining the true line, the parties employed Mr. Woolman, a surveyor, to run out the line. This survey was made, and stakes placed along the line. The matter thus rested until 1852, no division fence having been erected in the meantime. In 1852 Mr. Edwards was about to go to Oregon, when Garwood asked him to stake out the line before he went away. This Edwards did, and he and Garwood divided the line, and each erected his portion of the division fence. This fence, as agreed upon by the parties, remained there over 30 years; each occupying the lands up to the fence thus established.

In '1867 Beeson and Wood became the owners of the Garwood farm, and claim that, in order to ascertain the true line, they caused a survey to be made by Mr. Banks, who located the corner of the section about 8 feet north of the division fence erected by Edwards and Gar-wood. Mr. Beeson claims that he called the attention of Mr. Edwards to this new corner found by Banks, and that Edwards then told him it certainly must be the line, and it was all right. The defendant thereafter, through mesne conveyances, became the owner of the premises formerly owned by Garwood. In 1883 the plaintiff purchased the Edwards farm of the heirs of Lewis Edwards; and he claims that the line as marked and established by Edwards and Garwood in 1852, and upon which the fence was built, is the true line. In 1887 the defendant, without any notice to ihe plaintiff, caused this fence to be set over upon the land claimed by plaintiff about 8 feet, for the distance of 40 rods. The plaintiff put it back again where it originally stood, when the defendant again moved it over where he claimed the true line was located. ’

On the trial, Mr. Beeson was called as a witness, and testified that, after the survey by Mr. Banks, in 1867, he had a talk with Mr. Edwards, the then owner of the premises, but now deceased, in which it was agreed between them that, when the fence needed repairing, they would set it over on the line surveyed by Mr. Banks. Plaintiff introduced testimony tending to show that Mr. Edwards had departed this life, but that, soon after the Banks survey, he stated that he and Garwood had established the line, and that he had never consented, and never would consent, to its being moved. The jury found a verdict in favor of the plaintiff, and defendant brings error.

It is the contention of the defendant that the court erred:

1. In refusing to direct a verdict in favor of defendant.
2. In disregarding the application of the statute of frauds.
3. In charging the jury so that they might find for the plaintiff because of some parol agreement for establishing the line between Garwood and Edwards, although there was no dispute or doubt as to the location of the United States survey.
4. In charging so that they might find that plaintiff was entitled to recover without the aid of the statute of limitations.
5. In charging so that they might find plaintiff was entitled to recover because of title acquired by adverse possession.
6. In charging so that they might disregard the evidence on the part of defendant as to the transaction of 1867, although the jury might believe this evidence to be true.

The court charged the jury, substantially, that if the agreement was entered into between Garwood and Edwards as claimed by plaintiff, the fence built as claimed, and the parties occupied up to the fence as claimed, Mr. Edwards acquired title by acquiescence before the year 1867; that the material fact in the case was whether the acts of Mr. Edwards, and the transaction between him and Mr. Beeson in 1867, estopped Mr. Edwards and his grantees from making any claim to this land; and that if they found there was an agreement, definite and fixed, at that time, that Edwards was to surrender this piece of land to Mr. Beeson, or an agreement by which he was to surrender the possession, and it was a definite and well-understood agreement, then the adverse possession of Mr. Edwards ceased, and his title by acquiescence was abandoned ; that, if something further remained to be done to make it a definite agreement, then there was no surrender of possession, nor was there any act which created an estoppel. It appears that this fence remained there some 20 years after this agreement was claimed to have been made.

The claim of defendant is that there was no testimony showing, or tending to show, that the line established by Garwood and Edwards was on the original government surveyed line; that there was no evidence that the govern, ment surveyed line was in dispute between the parties, or that there was any uncertainty about the true location of that line. We think this contention cannot be sustained. It appears that one Brookfield made the original United • States survey. The testimony shows that Mr. Edwards claimed that the Brookfield line had been run too far north, and that it was a crooked line, and the parties acquiesced in the idea that the Brookfield line was too far north, and. was crooked, and they entered into an agreement, not only to make it a straight line, but to put it where it should be according to the rights of the parties. The fence, as we have said, was built in 1852, and remained there for over 30 years before any one attempted to move it. It has been repeatedly held by this court that a boundary line, long treated and acquiesced'in as the true line, ought not to be disturbed on new surveys, and that 15 years’ recognition and acquiescence, are ample for this purpose. Smith v. Hamilton, 20 Mich. 438 (4 Am. Rep. 398); Joyce v. Williams, 26 Mich. 332; Stewart v. Carleton, 31 Mich. 270. In Dupont v. Starring, 42 Mich. 492, it did not appear that any dispute, or even uncertainty, existed before the owners agreed upon the true line. In White v. Peabody, 106 Mich. 148, it was said:

“The rule is well settled in this State that when parties, by mutual agreement, and for that express purpose, meet, and fix. a boundary line, and thereafter acquiesce in the line so established, such line will be considered the true line, although the period of acquiescence fall short of the time fixed by the statute of limitations for gaining title by adverse possession.”

The court below was therefore not in error in submitting the question to the jury as to the arrangement between Garwood and Edwards in 1852, and it would have been error to direct the verdict in favor of the defendant.

The defendant has no cause to complain of the charge of the court in reference to the claimed agreement between Beeson and Edwards in 1867.' The fence had been erected upon a line agreed to between the parties upon a claim made by Mr. Edwards that the original line was too far north. Mr. Garwood acquiesced in that claim. The rule is well settled that, before the possession has ripened into an actual title, the continuity of possession may be broken in several ways: By an entry of the legal owner; by abandonment of the possession by the occupant; by a subsequent recognition of the owner’s title, or an acknowledgment, made before the statute has run in his favor, that he has and claims no title to the lands occupied. 2 Wood, Lim. § 270. The court left the question to the jury to determine whether Edwards made an agreement as claimed with Mr. Beeson. The jury having found against that contention, the question must be regarded as settled.

The judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    SANDS v. MANISTEE CIRCUIT JUDGE.
    Trespass — Judgment—Costs.
    The defendant in an action for trespass to.lands, brought in the circuit court, is entitled to costs, where the title is not put in issue by the pleadings, or contested upon the trial, and the verdict is less than §100.

      Mandamus by Louis Sands to compel James B. McMahon, circuit judge 'of Manistee county, to set aside a judgment for costs against relator, as defendant in an action for trespass.
    Submitted February 1, 1898.
    Writ granted February 16, 1898.

      Glassmire & Erb, for relator.

      George L. Hilliher, for respondent.
   Per Curiam.

Frederick Schulke brought suit against the relator in the circuit court in an action of trespass on the case for overflowing his lands, and recovered a verdict of six cents damages. Upon the trial title was conceded in the plaintiff. The court awarded costs to the plaintiff on the ground that title to land was in issue, and based his decision upon Thorn v. Maurer, 85 Mich 569. In Ostrom v. Potter, 104 Mich. 115, this question received a careful examination in an opinion by Mr. Justice Long, and it was there held that the plea of the general issue did not put in issue the title to lands in an action of trespass. In Thorn v. Maurer, the title in plaintiff was disputed, as appears from the record, which we have examined. The defendant requested the court to instruct the jury that plaintiff had not established such a title as to enable him to maintain the suit. In Druse v. Wheeler, 22 Mich. 439, the defendant gave notice of title with his plea. The rule established in this case is this: That where the title is not put in issue by the pleadings, or contested upon the trial, costs will not be allowed to plaintiff where the verdict is less than $100, but the defendant will recover costs.

The writ will issue.


author: Grant, C. J.

text:
    YOUNG v. KENT CIRCUIT JUDGE.
    1. Depositions — Statutes—Staying Suit.
    The court should not stay the further prosecution of a suit by a nonresident until he shall appear before a notary of the State of his residence, in pursuance of a notice to tkke his deposition, given under Act No. 180, Pub. Acts 1895, where he is in the State for the purpose of attending the trial, and offers to testify as a witness, and to produce all books and papers in his possession relating to the subject in litigation.
    2. Same — Preparation for Trial.
    Where the plaintiff in a civil action notifies defendant of his willingness to appear as a witness at the trial of the cause, and to produce all books and papers in his possession relating to the subject in litigation, he cannot be compelled to sub- ' mit to the taking of his deposition under Act No. 180, Pub. Acts 1895, merely to enable the defendant to inquire into the truth of his testimony before the case is brought on for trial.

      Mandamus by Owen Young to compel Allen C. Adsit, circuit judge of Kent county, to set aside an order staying the prosecution of a suit at law.
    Submitted February 1, 1898.
    Writ granted February 16, 1898.

      Taggart, Ganson & Taggart, for relator.

      Crane, Norris & Stevens, for respondent.
   Grant, C. J.

Relator resides in North Dakota, and is plaintiff in a suit pending in the circuit court for the county of Kent. The suit is brought upon a promissory note, transferred to the relator by the payee before due. The case was noticed for trial last December. Plaintiff came from North Dakota to attend, and he, through his counsel, urged the case for trial. The defendant’s counsel objected, and the trial was postponed two weeks. Again plaintiff insisted upon trial, and at the request of the defendant the trial was again postponed. On December 9th plaintiff served a written notice upon the attorneys for the defendant, as follows:

Gentlemen-. As you have expressed a desire to have me as one of your witnesses on the trial of the above claim, I hereby notify you that you can now subpoena me at 379 Fountain street, in the city of Grand Rapids, and I will obey the requirements of any subpoena legally issued and served. Yours, etc.,
“Owen Young.”
On January 10, 1898, the attorneys for plaintiff served upon the attorneys for defendant the following notice:
“The attorneys and counsel for plaintiff and appellant offer, as they have before offered, and as plaintiff has offered, to produce plaintiff as a witness at the trial of said cause, with whatever books, papers, or memorandum that he may have relating to or bearing upon the questions in issue, which defendant and appellee may give notice to have produced upon the trial of said cause.”

■ Defendant’s counsel had given notice to take plaintiff’s deposition in North Dakota on December 9th. Plaintiff swears that he left North Dakota to come to Grand Rapids to attend the trial, being unaware of the steps taken to secure his deposition. A subpoena was duly served upon plaintiff, calling him to appear before the notary in North Dakota for examination on December 21st, and notice thereof served on his attorneys on December 15th. He declined to appear before said notary, or to produce the books and documents called for. Thereupon the circuit court, upon petition of the defendant, entered an order perpetually staying the further prosecution of the suit until plaintiff appeared before the notary in North Dakota, and gave his testimony.

The notice to take this deposition was given under Act No. 180, Pub. Acts 1895. This act authorizes the taking of depositions of witnesses generally. It includes the parties to the suit, and under it either is entitled in good faith to take the deposition of the party residing outside the State. Kidder v. Blaisdell, 45 Me. 461; Hart v. Eastman, 7 Minn. 74; Abshire v. Mather, 27 Ind. 381; Ex parte Priest, 76 Mo. 229. It is apparent from the affidavits made by the attorneys for the defendant that they are not aware what they can prove by the plaintiff. One of the affidavits expressly states that it is “ important that plaintiff’s testimony be taken before the trial of the said cause, in order that the truth of his testimony in respect to the facts and circumstances stated by him may be inquired into between the time of the giving of said testimony and the trial of said cause.” We do not think the defendant made such a case as authorized the entry of the order staying the trial of the cause. 1 Thomp. Trials, § 753. Defendant’s attorneys were proceeding in good faith to secure plaintiff’s deposition; but when the plaintiff was present, ready and willing to be examined upon the trial, and tendered himself as a witness, we do not think they were entitled to his deposition. The order must be set aside. If plaintiff refuses hereafter to appear as a witness, the court may then make such order as may be necessary. We are not to be understood as holding that the defendant may be deprived of the testimony of the plaintiff. We simply hold that he is not entitled to it when the party offers himself as a witness in court, and the purpose of taking his deposition is to discover whether there is any defense, and to prepare for trial. The defendant has token the deposition of the payee. The writ.» will issue as prayed.

The other Justices concurred.


author: Moore, J.

text:
    FULLER v. EHLE.
    Appeal — Findings op Fact — Evidence—Review.
    The findings of the court in a case tried without a jury will not be disturbed on appeal if there is evidence fairly tending to establish them.
    Error to Kent; Grove, J.
    Submitted February 2,1898.
    Decided February 16, 1898.

      Assumpsit by William Fuller against Lyman W. Ehle for professional services. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Neionharn & Fyfe, for appellant.

      E. M. Ferguson, fqr appellee.
   Moore, J.

This case was commenced in justice’s court, and was appealed to the circuit court, where it was tried before the circuit judge, who rendered a judgment in favor of plaintiff for $36.45, from which judgment defendant appeals.

The circuit judge made a finding of facts in substance as follows: That the plaintiff was a physician living at Grand Rapids, and was called by,the attending physician to go to Dorr Center to assist in performing a surgical operation upon the person of Birney Ehle, who had just passed his majority, and was then at the home of defendant, who is his father; that after the operation was performed, and before he left the house, the plaintiff was paid $15 for his services by the defendant, who then informed him that, if he desired his services further, he would notify him; that later the attending physician telephoned the plaintiff that the young man again needed his attention, and to come; that plaintiff - at once responded to the message, when another operation was performed, at which time defendant paid plaintiff in part for his services, and agreed to pay the balance later; that, about a year later, defendant again promised to pay plaintiff the balance due him. It was for this balance that judgment was rendered. It was the claim of the defendant that the services were rendered for the son, and not for the defendant, and that the young man should pay the doctor. The testimony in relation to the hiring was conflicting. It was for the trial judge to determine the weight of the testimony, and we cannot disturb his findings if there is evidence fairly tending to establish them. The record discloses that there was such testimony.

The judgment is affirmed.

The other Justices concurred.


text:
    QUICK v. RAYMOND.
    1. Mortgages — Foreclosure — Satisfaction of Decree — Deficiency.
    At the request of the administrator of a mortgagor’s estate, the mortgagee, who had secured a decree in foreclosure proceedings, consented to postpone the sale as long as the administrator should k«ep the yearly interest paid and take good care of the premises. Two years later, the administrator found himself unable to pay the interest, and an arrangement was made whereby the heirs of .the mortgagor quitclaimed the premises to the mortgagee, and the latter leased the same to the administrator under an agreement that the estate should be entitled to a deed upon payment of the amount due under the decree, with interest, taxes, and insurance. A year later, the administrator, being unable to make the payment, voluntarily surrendered possession to the mortgagee. Upon the final account of the administrator, the amounts paid as interest money were disallowéd, and these payments were thereafter recovered back in an action instituted on behalf of the estate. Subsequently the heirs of the mortgagor filed a bill in equity to declare the foreclosure decree satisfied by reason of their quitclaim to the mortgagee. Held, that complainants’ contention was inequitable; that the mortgagee, having been obliged to refund the interest money, the payment of which by the administrator was an essential part of the transaction, should be permitted to pursue his remedy under his decree, and to enforce against the estate a claim for a deficiency arising after sale.
    2. Same — Merger.
    It is the rule in equity that a mortgage is not merged by a purchase by the mortgagee of the equity of redemption where the interest of the mortgagee requires the titles to be kept separate.
    Appeal from Jackson; Peck, J.
    Submitted February 4, 1898.
    Decided February 16, 1898.
    Bill by Lucy Quick and others against Jane E. Raymond, executrix of the last will and testament of Mahlon H. Raymond, deceased, to declare a foreclosure’ decree satisfied, and to enjoin further proceedings thereunder. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Grove H. Wolcott, for complainants.

      Melville McGee (Charles A. Blair, of counsel), for defendant.
   Long, J.

The following statement of facts, set out in the brief of defendant’s counsel, is substantially correct:

“Isaac C. Quick, in his lifetime, gave to Dr. 'Raymond his promissory note for <$4,000, payable in two years, with interest at 6 per cent. To secure the payment thereof, Quick and his wife gave Raymond a mortgage upon certain lands. Afterwards Quick died, and, as nothing had been paid on the note and mortgage, Raymond commenced a foreclosure in chancery. The bill for the foreclosure of the mortgage was taken as confessed by all the defendants, and on or about the 17th of January, 1893, a decree was entered for the sale of the mortgaged premises at any time after the 30th of January, 1893. The amount found to be due on the 5th of January, 1893, was $4,711.35. No question is made as to the proceedings, or the amount found to be due.
‘ ‘ At the request of Augustus O. Quick (the then administrator of the estate of Isaac C. Quick), Raymond consented to postpone the sale under the decree, only upon the condition, however, that Quick should pay the interest and costs, and secure the payment of the next year’s interest by a chattel mortgage on all the wheat and rye then growing upon the place; and, in order that Raymond should not be delayed in getting possession of the place in case Quick failed to pay the interest and costs by the 1st of April, 1893, Raymond required that the complainants should execute a quitclaim deed of the premises, and leave it in one McGee’s hands, to be delivered to him if they failed to pay. The interest and costs were paid April I, 1893, and McGee delivered the quitclaim deed back to Quick, and he burned it. In making this arrangement, Quick acted in good faith, believing that by so doing he would be able to pay all the debts of the estate, and save the farm for the heirs. Raymond, on his part, in postponing making sale of the premises and allowing Quick further time, acted in good faith, and consented to postpone the sale as long as Quick kept the yearly interest on $4,000 paid, and did not allow the farm to run down.
“Raymond allowed the Quicks to go on for nearly two years longer, and until January 25, 1895. Then, Quick being unable to pay the yearly interest on the $4,000, and at Quick’s request, they executed and delivered to Dr. Raymond their quitclaim deed. Quick was still confident that he could pay Raymond the amount of the decree and interest, and Raymond agreed to lease him the place for another year, and if Quick would, during the year, pay or secure to be paid the amount of the decree, with inter-' est, taxes, and insurance, then Raymond would deed the place back. Quick had possession of the place until the spring of 1896, when, being unable to pay Raymond, he voluntarily left the place, and gave up the possession to him. Before the lease expired, and in December, 1895, Raymond told Quick that he would take $4,100, and deed back the farm, and give him until the following March to pay it; thus throwing off several hundred dollars °from the amount actually due him.
“ Some time in the spring or early summer of 1896, it seems that Mr. Wolcott, complainants’ solicitor, was employed by Quick or by the creditors of the Quick estate. He prepared Quick’s final account as administrator of the estate of Isaac C. Quick, deceased, appeared before the judge of probate on the hearing, and secured the disallowance of about $1,200 of Quick’s credits; but, notwithstanding such disallowance, the judge of probate found only $47.07 in Quick’s hands which had not been administered properly, besides some farming tools: . Quick resigned, and John W. Miner was appointed administrator de bonis non of the estate of Isaac C. Quick, deceased. Complainants’ solicitor thereupon filed the bill in this case to enjoin the sale, and declare the decree satisfied. The circuit judge refused to grant an injunction, and on the final hearing dismissed the bill. • Raymond went on, and sold the premises under his decree, and bid them in for $4,000, leaving a deficiency of $896.64. Complainants’ solicitor afterwards brought suit in the name of John W. Miner, administrator de bonis non, against Raymond, to recover back the money paid by Quick to Raymond for interest money due him under the decree, and recovered a judgment against him for about $750, which has been filed as a claim against his estate, he being now deceased; Having failed to get an injunction to restrain the sale under the decree, complainants’ solicitor now asks a decree declaring that the acceptance of the deed by Raymond from the Quick heirs in January, 1895, paid and satisfied the decree. The court below, after hearing all the testimony, refused to make such a decree, and dismissed complainants’ bill, with costs. Complainants appeal.”

It is complainants’ claim, substantially, that, when Dr. Raymond took the quitclaim deed from Mr. Quick, his mortgage became merged in the greater title, and he cannot, under the circumstances here stated, now assert his mortgage claim, make sale thereunder, and bid the property'in for less than the amount due on the mortgage, thereby putting him in the position where he may now present a claim for such deficiency against the estate of Isaac C. Quick, or set the same off against the judgment obtained by the administrator de bonis non. We think this contention cannot be sustained in the law, and that it would be inequitable to permit it. When the deed was taken by Dr. Raymond, a large payment had been made on the mortgage by the then administrator of the estate. This amount was recovered back by the administrator de bonis non; and Dr. Raymond, or his executrix, is now seeking only to be placed in the same position as before that recovery. It is equitable that this estate should be so placed. The proofs do not establish the fact that any agreement was made by Raymond to accept this deed of January 14, 1895, in full payment and satisfaction of his decree. The rule in equity is that a mortgage is not merged by a purchase by the mortgagee of the entire interest in the equity of redemption where the interests of the mortgagee require the titles to be kept separate; and the intent to keep them separate will be presumed when it is to the interest of the mortgagee so to keep them. Cooper v. Bigly, 13 Mich. 478. The rule is this:

“At law, when a greater and lesser, or a legal and equitable, estate coincide in the same person, the lesser or the equitable estate is immediately merged and annihilated. But this rule is not inflexible in equity; whether or not a merger takes place depending upon the intention of the parties and a variety of other circumstances. Notwithstanding the technical rule of law, equity will prevent or permit a merger, as will best subserve the. purposes of justice, and the actual and just intention of the parties; and, in the absence of an expression of intention, if the interest of the person in whom the several estates have united, as shown from all the circumstances, would be best subserved by keeping them separate, the intent will ordinarily be implied.” 15 Am. & Eng. Enc. Law, 314, and cases there cited.

See, also, Cook v. Foster, 96 Mich. 613; Gibbs v. Johnson, 104 Mich. 124; Tower v. Divine, 37 Mich. 443.

The court below very properly held there was no merger of the mortgage, and dismissed complainants’ bill. That decree will be affirmed, the defendant to recover the costs of this court.

The other Justices concurred.

       See Miner v. Raymond, 113 Mich. 28.


text:
    NORTHWAY v. NORTHWAY.
    Divorce — Desertion—Evidence.
    The testimony of the husband in divorce proceedings based upon the wife’s alleged desertion, that he never assented to her leaving him, and that she went away against his will/ supports a finding that the separation was against the will of the husband, although it appears from his cross-examination that he did not object to her taking her things and going, where his conduct in this respect is explained by his statement that he knew it would do no good for him to object.
    Appeal from Ionia; Davis, J.
    Submitted February 3, 1898.
    Decided February 16, 1898.

      Bill by Albert Northway against Laura A. Northway for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Chaddoch & Scully, for complainant.

      V. H. & H. H. Smith, 'for defendant.
   Moore, J.

The complainant was granted a decree of divorce upon the ground of desertion, from which decree the defendant appeals.

It is claimed by the solicitors for the defendant that:

“To constitute desertion which will be sufficient cause for a divorce, there must be satisfactory proof of three things: First, cessation of cohabitation; second, an intent in the mind of the defendant to desert; and, third, that the separation was against the will of complainant.”

It is admitted that the proof establishes the first two of these essentials, but it is claimed that the evidence does not show that the separation was against the will of the complainant. The proofs show that the defendant left the house of her husband at Smyrna, where they were then living, more than two years before the bill of complaint was filed. The defendant was sworn as a witness, and testified', in substance, that she would never live with her husband again, and that she so determined when she left Smyrna. The husband testified that he never consented to her moving, and that she took her things away against his will. It is true, on the cross-examination he testified that he did not object to her taking her things and going, and did not forbid the man who moved her furniture from doing so; but he added, as explanatory of his conduct, that he knew it would do no good for him to object. The circuit judge had the witnesses and parties before him. He saw their manner in giving their testimony, and came to the conclusion — which we think is fairly warranted by an examination of the record — that complainant had proven his case.

The decree is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    FYFE v. ENGLISH.
    Appeal — Review—Cancellation op Mortgage.
    Upon a review of the evidence, a decree canceling a mortgage and a sheriff’s deed on foreclosure thereof was affirmed.
    Appeal from Berrien; Coolidge, J.
    Submitted October 13, 1897.
    Decided March 1, 1898.
    Bill by Lawrence C. Fyfe, trustee for the heirs of Mary A. Thresher, deceased, against Peter English and James Baley, for the cancellation of a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      Edward Bacon (George M. Valentine, of counsel), for complainant.

      Gore & Harvey, for defendants.
   Hooker, J.

To determine whether this decree was warranted, it becomes necessary to understand the business relations of English and the Threshers, which were considerably involved, and include the transfer to English of several parcels of land which the Threshers claim that he never paid for. An outline of these transactions is as follows: On May 18, 1885, the Threshers made a mortgage for upwards of $4,500, upon all of the property, to Lucy M. Dickinson, and on April 29, 1893, this mortgage was assigned to Horace M. Olney. Previous to August, 1891, English had organized the Excelsior Gas Company, and held some of its stock. He and Thresher had become interested in some business affairs, and Thresher had deeded to him lots 5 and 16, block 6, the consideration mentioned in the deed being $800. On behalf of Thresher it is claimed that these lots were never paid for, and lie testified that the only money that English ever paid him, that he could recall, was the sum of $1,500, which will'be explained later. English testified that on January 15, 1891, he paid Thresher by check $500, and that this was secured by chattel mortgage, and was finally repaid by the deed mentioned, dated March 4, 1891. The check was produced upon the hearing. In December, 1890, English, Thresher, and others had associated under the name of the Benton Harbor Improvement Association, for the purpose of advancing the interests of the village, and attempted to incorporate. It is claimed by counsel for the Threshers that they did not organize a valid corporation ; but, whether they did or not, it entered into a contract, on May 25, 1891, with Thresher, acting for himself and children, whereby the association conditionally purchased all of the Thresher property, and proceeded to replat it, by a plat called the ‘ ‘ Benton Harbor Improvement Company’s Third Addition,” which was filed in December, 1891. By inadvertence the old plat was not vacated, it is said. It was after the making of this contract, and before the making of the new plat, that the mortgage to English hereinbefore mentioned was made. The Threshers retained possession of the property.

About January 1, 1892, a new scheme was evolved, in which both English and Thresher took a lively interest, —English, because he was a promoter of the enterprise; Thresher, because of its prospective advantage in the disposition of his lots, if for no other reason. The Benton Harbor Land & Improvement Company was formed, with the view to the sale of 1,400 village lots, at the uniform price of $200, regardless of value, the parcels to be distributed by lot among the several purchasers, after all had been sold. Life was to be infused into this project by the building of a large hotel, which was expected to materially advance values. Under this scheme, much of the identical property which was under contract to the Benton Harbor Improvement Company was to be included in the 1,400 lots to be sold by the new company, and it is obvious that it was necessary that the Threshers should be released from the first contract. This brings us to a transaction whereby 18 lots were conveyed by Thresher to English. The deed was dated January 28, 1892, and the consideration was one dollar. On the same day, and as part of the same transaction, English made a quitclaim deed of the same lots to John Bell, Albert R. Nowlan, J. H. Lee, and J. Stanley Morton, for the nominal consideration of one dollar. Lee, at least, was a director of the improvement association, and it is said that all were, and English testified that he acted for the accommodation of the association and Thresher, and received no personal benefit or interest in the land conveyed. This is a portion of the property conveyed to English for which counsel for the complainant claim that he did not pay. English testified that it was conveyed by Thresher in pa3rment for $5,000 stock, for which Thresher was indebted to the association. There is other testimony to the same effect. Two days later, on January 30, 1892, a contract was made between English and the Threshers, in furtherance of the scheme. This contract was in writing, and by its terms the Threshers were to sell to English 158 lots, being a portion of the property originally contracted to the improvement association, and perhaps all, with the exception of the 18 lots deeded two days before. For this property English was to pay $52,500, as follows: $1,500 on the signing and delivering of a duplicate of the contract, $25,000 on or before August 1, 1892, and $26,000 on or before January 1, 1893. English gave his notes for the last two payments. English also agreed to give a bond for $5,000 as security, and for liquidated damages in case of his failure to perform. Title was not to pass until one-half of the consideration was paid. The contract contained the further provision:

“Also, that this agreement is wholly contingent upon a settlement being made with the Benton Harbor Improvement Association, and cancellation of a certain contract for same premises here named between them and aforesaid first party. If no settlement can be amicably made, this instrument becomes void. And it is further agreed that the party of the first part hereby conveys to the party of the second part the rigid to sell four of the above-described lots for the purpose of making the first payment of $3,500 to the party of the first part on the said property, if sold at actual value, and first payment is made on delivery of this contract.”

The premises were to be conveyed “free and clear from all incumbrances whatever, by good and sufficient warranty deed.”

On February 1, 1892, English drew his check for $1,500, which was paid on February 3d. On February 4th the Threshers conveyed to English four lots, — 1, 2, 17, and 18, block 7. The consideration mentioned in the deed was $1,500. On the same day they'conveyed to him the west half of lots 11 and 12, block 8, the west half of lots 5 and 11, and the west fraction of lots 6, 7, 8, 9, and 10, block 17, being all the lands east of Nowlan street. The consideration stated in this deed was one dollar. English testified that the fractions and parcels east of Nowlan street were conveyed as a part of the same transaction in which the four lots were conveyed, and were part of the property conveyed to enable him to raise the first $1,500 payment under the contract, and that such was the understanding between him and Thresher. Thresher stated that English sold lots and raised the $1,500, but could not state what lots they were. His counsel claim that the lots conveyed to English on February 4th produced more than $1,500. The record shows that the four lots were sold by English to Fifield for $1,800, and the land east of Nowlan street to Lee for $1,000. The bond mentioned in the contract of January 30th was not given, but in lieu thereof English delivered 100 shares of Excelsior Gas Company stock, of the par value of $10,000.

The hotel scheme was a failure, and the affairs between the improvement association and the Threshers remained unsettled, and the whole land improvement project appears to have been abandoned. May 14, 1892, Thresher deposited the gas stock in bank as collateral security for his obligation. A quarrel arose between Thresher and his children, and, as already stated, on May 18, 1892, Frank Thresher revoked his power of attorney, and like action was taken by George on June 3, and Hattie on July 30, 1892. The payment upon the English contract was not made when it fell due, on August 1, 1892. On August 26th, Thresher’s children commenced a suit in chancery against him. A written indorsement, signed by Thresher and English, appears upon the contract, extending the time for making payment one year. It is dated May 17, 1892, being the day before the first revocation of the power of attorney. English testified that he signed this indorsement some time in September, at the request of Thresher, to aid him in his suit with the children, to which English was made a party defendant. English was promptly informed of the revocation of the power of attorney, and Baley was directed not to deliver the gas stock to any one without an order from the younger Threshers. This occurred before the bill was filed. An answer was filed on behalf of English (though he says it was without his knowledge or instigation), admitting the executing of the contract, but alleging that nothing was due thereon, and “that on or about May 17, 1892, a valid contract was entered into by and between this defendant and Joseph P. Thresher, by which the time of payment on said contract was extended on the payments provided for in said contract for one year.” On or about September 30, 1892, English obtained from Thresher ap order, of which the following is a copy •

“James Baley,
“Cashier First National Bank,
“ Benton Harbor, Mich.
“Sir: Whereas, on or about the 14th day of May, 1892, I deposited in your bank 200 shares of stock of the Excelsior Gas Company as collateral to a joint note made by myself as attorney in fact for George M. Thresher, Mrs. Hattie D. Fitzgerald, and Frank L. Thresher, and myself, and which stock was standing in the name of Peter English, and was not assigned by him; and whereas, the purposes for which he left said stock with me have been accomplished, and I have no interest in it, either as attorney for the above-named parties or myself: Now, therefore, you are hereby instructed to deliver the same to Peter English.
[Signed] “J. P. Thresher.”

Thresher says that this was delivered upon a promise by English that he would pay the $1,224 note at the bank, and the agreement to return the stock to him as soon as acquired. English claims that he was about selling the gas works, and needed this stock to transfer, and that Thresher knew and assented to this, and that there was no promise to assume and pay the note, and thereby relieve the Threshers from liability thereon, or to return the stock to Thresher. English did pay the note in order to get the stock, and received the stock from the bank. October 15, 1892, Frank Thresher conveyed his interest in the property to Ankeny. In May, 1893, Mr. George S. Clapp, counsel for the Threshers, on their behalf, presented to English a writing admitting that the contract of January 30, 1892, was canceled, and containing a release of all claims against the Threshers, with the request that he sign it. This was refused. In October, 1893, English began foreclosure, and in January, 1894, received the sheriff’s deed, and in October, 1894, he assigned his interest to Baley. In November, 1894, Thresher and his children settled their difficulties. During the time intervening between January 30, 1892, and January 11, 1894, a controversy existed between the improvement association and the Threshers over their respective rights. This does not appear to have been settled. The Olney mortgage was never paid. Fyfe, the complainant, is a trustee under a deed from the proper parties, and he filed this bill for the “ cancellation of the mortgage, adjustment of equities, and an accounting.”

The learned circuit judge who heard the cause filed an opinion, in which he stated his conclusions of fact. He gives prominence to the confidential relations which existed between Joseph P. Thresher and English. It is stated therein that the contract became forfeited, and English thereby became liable to Thresher in the sum of $5,000 as liquidated damages, the gas .stock being chargeable as security therefor; and that in May, 1892, this stock was deposited as collateral by Thresher, with the consent of English, and that the order for the stock was delivered to English upon the promise to pay the $1,224 note. The opinion also states that English sold lots and received money for them in excess of the $1,500, and re. ceived $1,000 for Thresher’s stock in the association.

The case was elaborately argued in both courts, and, to our minds, there is ample justification for the decree made by the learned circuit judge. We are of the opinion that his decree should be affirmed, with costs; and it is so ordered.

The other Justices concurred.


text:
    CHOATE v. STEVENS.
    1. Promissory Notes — Added Recitals — Conditional Sale.
    An instrument in the form' of a promissory note, which contains a recital that the consideration for it and for certain other notes is a soda fountain, described in a contract of sale of even date; that the maker, to whom the apparatus has been delivered, is to acquire no title thereto until all the notes are paid; and that the payee is to have the right, in case of nonpayment at maturity of either of the notes, to “enter and retain immediate possession of the property, * * * and remove the same,” — imports an absolute, not a condi- ' tional, sale, with reservation of title by way of security.
    2. Same — Negotiability.
    The negotiability of such note is not impaired by the recitals as to the consideration and reservation of title.

      3. Same — Construction—Surrounding Circumstances.
    Whether the written contract of sale, executed some days before, in accordance with the terms of which the notes in question were given, could properly be examined by the court for the purpose of determining the character of the transaction as bearing upon the negotiability of the note, in case the recitals in the note had left the matter in doubt,— qucere.

    Error to Wayne; Hosmer, J.
    Submitted October 15, 1897.
    Decided March 1, 1898.

      Assumpsit by Rufus M. Choate against Frederick D. Stevens and Frederick J. Todd upon promissory notes. From a 'judgment for plaintiff, defendants bring error.
    Affirmed.

      Frank D. Andrus, for appellants.

      Boioen, Douglas & Whiting, for appellee.
   Hooker, J.

The defendants have appealed from a judgment upon two written instruments, substantially alike, of one of which the following is a copy:

“ $115. Detroit, July 25, 1893.
“For value received, March 16, 1895, after date, I promise to pay to the order of Low’s Art Tile Soda-Fountain Co. one hundred and fifteen dollars, with interest 6 per cent.
“ The consideration of this and other notes is the sodadraught apparatus described in contract of same date as this and other notes, which soda-draught apparatus the undersigned has received of said Low’s Art Tile Soda-Fountain Co. Nevertheless it is understood and agreed by and between the undersigned and the said Low’s Art Tile Soda-Fountain Co. that the title to the above-mentioned property does not pass to the undersigned, and that, until all said notes are paid, the title to the aforesaid shall remain in the said Low’s Art Tile Soda-Fountain Co., who shall have the right, in case of nonpayment at maturity of either of said notes, without process of law, to enter and retain immediate possession of said property, wherever it may be, and remove the same. Payable at the Preston National Bank.”

Each bears, as an indorsement, the name of the payee. The defendants say that they were improperly admitted in evidence, for the reason that they are not promissory notes, and that, if the indorsements are to be treated as an assignment of the chose in action, it should have been alleged in the declaration; and, further, that there was no evidence that the plaintiff was the owner of the notes sued upon. Both briefs indicate that the question considered most important, if not decisive of the case, is that of the negotiability of the notes.

The instruments — to the end of the fifth line — are in form promissory notes. If there were nothing more, they would be as perfect and complete promissory notes as it is possible to make. The writing proceeds to state the consideration for said notes, which, though not essential, was harmless. Wright v. Irwin, 33 Mich. 32. This is followed by the statement that the parties agree that the title to the property for which the notes were given shall remain in the payee, who, in case of nonpayment at maturity of either of said notes, “may enter and retain immediate possession of the property, without process of law, wherever it may be, and remove the same.” If it can be said that this writing shows a sale of the soda fountain, as contradistinguished from a contract to sell, the provisions as to title amount to no more than a chattel mortgage. Mr. Justice Harlan said in the case of Chicago Railway Equipment Co. v. Merchants’ Bank, 136 U. S. 280:

“The fact that, by agreement, the title is to remain in the vendor of personal property until the notes for the price are paid, does not necessarily import that the transaction was a conditional sale.”

In that case the court was able to find from the evidence that the parties intended to effect a sale, and that the title reserved was merely the title of a mortgagee. The distinguished juxúst added that “each case must depend upon its special circumstances,” which proposition is emphasized by the case of Harkness v. Russell, 118 U. S. 663, where the facts were held to show a conditional, and not an absolute, sale. If we can place this construction on this transaction, — i. e., that it was a sale, — there is no difficulty in sustaining the negotiability of this note, under our own decisions. See Brooke v. Struthers, 110 Mich. 562; Wilson v. Campbell, Id. 580.

The record shows that the soda fountain was furnished under a written contract, and that these notes were given some days later after delivery, in accordance with its terms. If we were to consider the provisions of this contract, we should not hesitate to say that this was a sale with a reservation of title by way of security. As said in Brooke v. Struthers, supra, there are cases which hold that a contemporaneous writing may be examined to determine the negotiability or nonnegotiability of a note. See cases cited. While, perhaps, this contract is not strictly a contemporaneous writing, it was one of the surrounding circumstances under which the notes were made. But we find it unnecessary to pass upon that question, as we think the same is implied by the notes. These being negotiable notes, a declaration upon the common counts was sufficient, under our well-settled rule. The judge allowed the jury to consider defendants’ right to damages by way of recoupment, and, apparently, such damages were allowed. We think the ownership established. No question appears to have been raised at the trial over the genuineness of the indorsements.

We find no error in the record, and the judgment is affirmed.

The other Justices concurred.


text:
    BURROWS v. LEECH.
    1. Partnership — Insolvency — Mortgages — Common Partner.
    A mortgage given by. an insolvent firm to another firm to secure a valid indebtedness is not fraudulent, as a matter of law, as against unsecured creditors, by reason of the fact that the firms have a common partner.
    2. Same — Equity—Scope op Examination.
    The disposition of equity, when once it acquires jurisdiction of a controversy, to make its examination broad enough to do full and exact justice between the parties, would not necessarily impel it, in a suit involving an indebtedness between firms having a common partner, to go beyond the adjustment of the claim as between the firms, for the purpose of ascertaining, by taking an account of the business of the creditor firm, what, if any, balance could be found in favor of the common partner, in order that such balance might be deducted from the amount of the recovery.
    3. Same — Basis op Adjustment.
    The argument, therefore, that firms having a common partner cannot have their controversies adjusted at law, nor in equity except upon the basis of individual, as contradistinguished from firm, rights, is of no force when invoked by unsecured creditors of the debtor firm in support of a contention that ' security given to the creditor firm should -be applied to the claims of general creditors to the extent that it benefits the common partner.
    4. Same — Firm Note — Presumption.
    A note executed by a partnership will be presumed, in the absence of a contrary showing, to be a valid claim against the firm, although it was given for the debt of one of the members.
    5. Debtor and Creditor — Security—Fraud.
    Evidence of the invalidity of a single claim sought to be secured with other valid claims by a mortgage executed by an insolvent is insufficient to show an intent to defraud unsecured creditors, where the amount of the invalid claim is trifling in proportion to the whole amount secured.
    6. Same.
    Unsecured creditors of an insolvent cannot complain because assets of the debtor were applied by the secured creditors to the payment of an invalid claim, where the total assets were insufficient to satisfy the valid claims secured.
    7. Same — Priorities—Adjudication.
    The adjudication of the rights of secured creditors of an insolvent under their several securities, postponing them to a certain mortgage, will not preclude them from asserting, as against unsecured creditors, their superior claim to a fund appropriated by the trustee under the prior mortgage to the payment of an invalid claim.
    Appeal from Wayne; Lillibridge, J.
    Submitted November 4, 1897.
    Decided March 1, 1898.
    Judgment creditor’s bill by George L. Burrows and Amasa Rust, copartners as Burrows & Rust, against Edward W. Leech, survivor of himself and Patrick M. Gamble, deceased, copartners as E. W. Leech & Co., and Archibald G. Lindsay, individually and as receiver. Complainant Rust died pending the hearing, and the cause was revived in the name of complainant Burrows as survivor. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Thomas S. Jerome (U. E. Spalding, of counsel), for complainant.

      De Forest Paine and Hoyt Post, for defendant Lindsay.
   Hooker, J.

One Gamble was a member of two co-partnerships, viz., - E. W. Leech & Co., consisting of E. W. Leech and himself, and Lindsay & Gamble, consisting of the defendant Lindsay and himself. The firm of E. W. Leech & Co. and its individual members became insolvent, and Gamble, for and on behalf of the firm, gave mortgages upon the firm property, to secure certain creditors. The first mortgage was given to the Michigan Savings Bank, the second to Lindsay for the purpose of securing claims of Lindsay & Gamble and the People’s Savings Bank, and these were followed by several others, given to persons and firms not parties to this record, Some questions arise upon the nature of two of the claims covered by the second mortgage,- but there is no doubt that one of these represents an indebtedness from E. W. Leech & Co. to Lindsay & Gamble, for lumber purchased by the former from the last-mentioned firm. Proceedings were commenced in chancery to foreclose the mortgage given to Lindsay, and to convert the mortgaged property (which was mostly personal) into money, that it might be applied upon the several mortgage claims, in proper order, so far as it would go. It seems to be admitted that there was not sufficient to pay all of the mortgages. All of the mortgagees were made parties, and Lindsay was appointed receiver, and sold the property under an order of the court. A final decree was made, directing the order and amounts in which the fund should be applied to the several mortgages. The complainants (unsecured creditors of E. W. Leech & Co.), having procured a judgment upon their claim, applied to the court having jurisdiction of the proceedings mentioned for leave to levy execution upon the property, subject to the mortgages, and this was granted. The execution was subsequently returned with a small collection from another source, and unsatisfied as to the residue. The bill in this cause was then filed, attacking the mortgage given to Lindsay as fraudulent, and.asking that the receiver be required to account to the complainants, upon the ground that, inasmuch as there was a common partner, the mortgage given secured a debt in which one of the mortgagors was interested as creditor, and that, if held valid, it would have the effect of withdrawing some of the assets of E. W. Leech & Co. from their creditors, and applying them to the purpose of one of the members of the firm, i. e., Gamble. It is also claimed that the mortgage was made with an intent, upon the part of Gamble, to defraud the creditors óf Leech & Co.

The first contention rests upon the well-known principle of the law that, while copartnerships are treated as distinct entities in the mercantile world, they are not in the law, all common-law actions being brought for or against persons constituting the firm, in their individual names, and upon the rule that one cannot be both plaintiff and defendant in an action at law. The authorities are therefore uniform to the effect that one firm cannot maintain a common-law action against another having a common partner, though the law does not treat contracts between such firms as void, and it is only necessary for the creditor firm to make an assignment of its claim, to make it collectible by an action at law. Evidently, as the technical rules mentioned are the only obstacle to collection of a debt by one firm against another in an action at law, the prohibition does not rest upon any obvious injustice, but is a good illustration of that inelasticity of the common law which it is the province of equity to remedy. The authorities agree that equity may take cognizance of these cases in a suit between the parties. Still equity follows the law in both respects. It does not treat the partnership as an entity, nor does it make the common partner both complainant and defendant; but, all being before the court, it so frames its decree as to grant proper relief.

Counsel for the complainants do not dispute the jurisdiction of equity in a suit arising between, and restricted to the members of, the debtor and creditor firms. They do, however, maintain that in such a suit a court of equity would not content itself with treating the two firms as distinct entities, and make a decree' for the whole amount of the debt, but that, inasmuch as it is dealing with individuals, it must sift out individual, as contradistinguished from firm, rights, and that it must therefore take an account of the business of the creditor firm, and ascertain what, if any, balance can be found in favor of the common partner, that such balance may be deducted from the amount of the complainants’ recovery. Here we may pertinently inquire why equity should be so strenuous to leave the interest of the common partner in the debtor rather than the creditor firm, where, as in this case, he might prefer to have it left, and where justice to persons not members of hither firm might imperatively require that it should be left. Again, it would seem to logically follow that if it is dealing with individuals, rather than partnership entities, and is going to do complete justice to all, it must go further, and take an accounting of the business of the debtor firm, in order to know what member is to have the benefit of this deduction. Counsel cite, in support of this proposition, an anonymous article published in 5 Am. Law Rev. 47, which contains the best exposition of this theory that we have seen. The author reaches the conclusion by a process of reasoning from admitted premises, and his aim seems to be, not to maintain the justice or expediency of such a rule, but its existence as a logical necessity, growing out of the legal status of the copartnership, with which it is evident that he is not in sympathy. The article concludes as follows:'

“ On the whole, therefore, it seems to us that a dissolution of the plaintiff firm is necessary, and, as incident thereto, an account between its members, before this debt can be recovered. That no more direct remedy can be had seems evident from the entire absence of adjudication upon the subject in the English equity courts, where such cases would certainly be frequent were there any remedy short of a dissolution. Like so many other anomalies in the law of partnership, this springs entirely from the failure of the courts to recognize the personality of the firm; and until that is done, and until the courts in their rules of practice cease to make the relation of partnership conform to a code of rules adopted in a state of society where mercantile usages had little influence, no change for the better will be made.”

We may agree with him that matters would be simplified by the adoption of the rule of the civil and Scottish law that copartnerships, like corporations, should be treated as legal persons, and that the harmony of our jurisprudence would be thereby made more perfect; but we are not convinced that there is no escape from the hard logic by which his result is reached. The difficulty with it seems to be that it ascribes to equity some of the inelasticity pertaining to legal remedies. - If the author is correct, in addition to the “anomaly” that he mentions, we have another, viz., a case where, by reason of the rigidity of legal rules, equity cannot find a way to afford merited relief, which it is the especial boast of equity that it can always do^ and this seems to stand entirely upon the proposition that in no case will equity “do things by halves,” but that, having jurisdiction of a subject, it will refuse to deal with it, unless it can settle finally all questions appertaining to or growing out of the subject. We are not disposed to deny that in a proper • case equity might go to great lengths to do full justice between the parties, but not to do injustice; rather than to do which it might better “do things by halves,” and doubtless would. As will be seen by the article mentioned and the cases therein cited, it is 'admitted on all hands thac equity has jurisdiction in such cases in suits between the members of the two firms. We disagree with the conclusion that it must in all cases settle the partnership affairs of one or both concerns before making a final determination. Were this a suit between the two firms, both being solvent, brought merely to settle a disputed claim, it would be a hardship to compel both to submit to accounting, that equity might settle innumerable and infinitesimal questions that neither cared to have settled, as incident to some relief which neither party desired, because of their ability to adjust their own affairs after the disputed question should be disposed of. It would be quite time enough to go into these matters when the pleadings should show that justice required it.

Conceding that equity may require an accounting if justice requires it, with a view to setting off against the debt the interest of Gamble therein, we will examine the situation. Leech and Gamble owed Lindsay & Gamble $16,000 or thereabout. It was an honest and valid debt. In a suit by an assignee, no question of Gamble’s interest could be raised by way of set-off. If Gamble had seen fit to pay it, Leech must have accounted with him for his share. No creditor could dispute the validity of such payment. Had pi-operty been given in payment, it would have been a valid transaction. But, instead of this, property was pledged, by way of mortgage. Leech appears to have consented to this when informed of it; but the firm creditors — i. e., these complainants — attack it, saying that it is a fraud upon them, because it applied firm assets to a claim of Gamble, a member of the firm, thereby using the assets to pay their (complainants’) debtor. The only foundation for this is that in judicial proceedings the copartnership is not treated as an entity for the purpose of procedure. But it is so treated for some purposes. We have seen that it is only necessary that the claim be assigned to show that the courts do 'not hold the contract invalid. It is a familiar rule that a partnership is so much of an entity that its assets may not be reached by a creditor of a partner until the creditors of the firm are satisfied, showing that its members are not treated as owners of aliquot portions of the property, as in cases of tenants in common. Even between themselves, an accounting must be taken before it can be determined that a partner’s interest amounts to more than a duty to pay the debts of the concern. Courts of bankruptcy uniformly allow a creditor firm to prove its whole claim against a debtor firm having a common partner, and make no account of the interest of the common' partner. We do not discover that this is limited to cases where the creditor firm is insolvent. If it were,' it would become necessary for the court to inquire into the solvency of all firms having obligations against the creditor, as well as the debtor, firm, where there was a common partner in such firms, and bankruptcy proceedings might be interminable. • In 17 Am. & Eng. Enc. Law, 918, it is said:

“While the common-law conception of a partnership was that it was not a thing in any way distinct or separate from the members composing it, the law of Scotland, the Roman law, and the system of continental Europe, as well as that of Louisiana, regarded a firm as a separate person, having distinct rights and interests, and capable of suing and being sued by its own members. Equity has treated partnerships as distinct from their members in some respects, and now judicial determinations that a firm, is a distinct entity are frequently found.”

A long list of cases support the statement.

Lindsay & Gamble were, like these complainants, creditors of Leech & Co. The assets of that firm were subject to their claims. Either might be lawfully paid, and a court would treat them alike in proceedings in bankruptcy. The amount paid to Lindsay & Gamble might furnish a fund out of which these complainants could realize something more, if, upon adjustment of the affairs of Lindsay & Gamble, a balance should be found due Gamble. But, by the ingenious process of reasoning adopted, an effort is made to deprive the creditors of Lindsay & Gamble, and the surviving partner, Lindsay, of the right of collection of any portion of their claim out of the amount due from Leech & Co., notwithstanding the fact that Lindsay & Gamble were made preferred creditors by Leech & Co., and, unless by reason of Gamble’s common interest, might lawfully be such. By this course of reasoning they thwart Leech & Co. in their attempt to prefer another creditor, and succeed in getting themselves preferred. It must be conceded that, unless Gamble has some tangible interest in this debt, the complainants have no ‘ ‘ leg to stand onfor their equities against Gamble are in no way .superior to those of the creditors of Lindsay & Gamble, or, for that matter, Lindsay, and their claim against Leech & Co. is no better than Lindsay’s claim growing out of his partnership with Gamble; so their contention cannot, in any event, find a more substantial basis than the proposition that they have superior equities than Gamble’s personal creditors because this property belonged at one time to Leech & Co. By the transfer to Lindsay & Gamble it was taken from the assets of Leech & Co., and substantially became assets of Lindsay & Gamble; and thereafter the complainants were in as good and no better position than Gamble’s personal creditors, of which we think they have no reason to complain; for, whatever else may be said, Gamble’s interest, whatever it may have been, arising out of his connection with Lindsay & Gamble,'was not in any sense or at any time an asset of Leech & Co.

This conclusion practically settles the question of fraud so far as it is predicated upon the inability of Gamble to appropriate to his own use the assets of Leech & Co. through this mortgage. We should, however, advert to the case of Kayser v. Heavenrich, 5 Kan. 324, which is relied on by the complainants as sustaining their contention that legally this was a fraud, and it must be admitted to be closely in point. In that case J. Westenberger was a partner in the firm of J. Kallman & Co., in whose name he executed a deed of assignment to the plaintiff, whereby he conveyed to him all of the firm’s property, to be converted into money, with which he was to pay pro rata certain preferred creditors, among whom was one Loewéfithal. ! ‘ In this alleged claim, Westenberger was half owner, they being partners.” This was concealed. The trial court found these facts, and that, to the extent of his (Westenberger’s) part of the amount for which he preferred Loewenthal, the assignment was for his own benefit, and void, and that the deed was made with intent to defraud the creditors of Kallman & Co. We may note here that the opinion states the material question thus:

“The evidence, which makes part of a very voluminous record, fully sustains the findings of the court as to the facts, and the one material question for consideration is whether, the facts all being true, the conclusion of the court that the instrument of assignment is void is a just conclusion of law.”

Attention is directed to the fact that the court was careful to base its opinion on the truth of all of the facts, and not alone upon the fact that Westenberger was a partner of Loewenthal in the particular claim. Again, there is a possible distinction in the fact that the case does not show that Westenberger was a partner in any other sense than that of part owner of this particular claim. It is said that ‘ ‘ one-half of this amount is of right the property of one of the assignors [which would hardly be accurate if they were copartners], and is a secret trust for his benefit.” This would seem to imply that they were merely tenants in common of the claim, and that the relation of copartners may not have existed. The court determined that the facts in that case showed that there was a secret trust for the benefit of the maker of the instrument, and that it was void under a statute there cited. But, if we give this case the full force of the claim made for it, we shall find it unsupported, except as it may be thought to be supported by those authorities which hold that individual debts against partners are postponed to partnership obligations so far as partnership property is concerned, in which the decisions are uniform, but which we do not consider decisive of this question.

This conclusion does not settle the question of fact wherein lies the claim that this mortgage was given with the intent to defraud the creditors of Leech & Co., of which it is said the firm of Lindsay & Gamble were advised, because the knowledge of Gamble, who made the mortgage, was the knowledge of the firm of Lindsay & Gamble. We see no evidence of such intent, unless it is to be found in the fact that the mortgage covered the claims of the bank, $3,000, and Patterson, $725. If these were not debts of Leech & Co., they were improperly included. As to the former, we are satisfied that equity should treat it as a debt of Leech & Co. As to the Patterson claim, the facts are as follows: Patterson sold a monument to Gamble. In payment, he received some money and a note of $400, signed by Gamble, and one of $325, signed by Leech & Co., dated December 1, 1890. At the time the mortgages were given, both of these notes were unpaid, and in the hands of the bank, and are understood to have been covered by a note for $725, given with the mortgage, which mortgage, as stated, was understood to be given Lindsay in trust for the payment of the claims of Lindsay & Gamble and the bank. Lindsay knew nothing about the condition or possibly the existence of the Patterson claim when he took the mortgage. He did when he paid it. It is possible that the $325 note was a valid claim against Leech & Co. At least, we cannot say that the evidence shows it to be otherwise, though given for the debt of Gamble. See 1 Bates, Partn. § 565 et seq. The $400 note never was a valid claim against them, and the mortgage could not stand as security for that, as against the creditors of Leech & Co. This, however, would not benefit the complainants, as it would simply increase the fund for the payment of succeeding moi’tgages, which is shown to have been inadequate. Gamble was sick at the time, and died soon after, so we have not the benefit of his version of the affair; but the amount is so trifling in proportion to the entire transaction that it does not impress us as an intended wrong to creditors. As stated, the succeeding mortgagees would have had a superior right to this amount had they asserted it. But they did not, perhaps because ignorant of the fact. The complainants now claim that inasmuch as the court has adjudicated the rights of the succeeding mortgagees, and -postponed them to the mortgage of Lindsay, including the amount of the Patterson claim, they are cut off from making any claim to this fund, and, for that matter, to the amount of such mortgage to Lindsay, if it should be set aside, leaving it open to the complainants’ claim; but we think this an inequitable claim, and, before we should permit it, we should allow such mortgagees to be heard, to ascertain whether they were parties to any fraud against the complainants, of which this record furnishes no evidence. As to the Patterson matter, in view of the inadequacy of the fund to pay all of the mortgages, the mere fact, if it should prove to be a fact, that the later mortgagees consented to its payment, thereby lessening their own fund, is not a matter of which these complainants can complain.

Upon the whole record, we are satisfied that the decree of the circuit court has done substantial justice. It will therefore be affirmed, with costs.

The other Justices concurred.


text:
    KELLEY v. GUY.
    1. Promissory Notes — Want of Consideration — Evidence.
    Want of consideration for a note executed by defendant to decedent in her lifetime is established where it is shown that the note was executed merely as a memorandum of a previous transaction, whereby decedent paid to defendant the amount of the note in consideration of his agreeing to use the same in the construction of a house where she might make her home and receive maintenance and support, which agreement was carried out to the satisfaction of decedent.
    2. Same.
    A want or failure of consideration may always be shown in defense of an action on a note.
    Error to Berrien; Coolidge, J.
    Submitted January 4, 1898.
    Decided March 1, 1898.
    Trover by Samuel H. Kelley, administrator with the will annexed of the estate of Maria A. Rowe, deceased, against Juan M. Guy. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Trover for the conversion of a promissory note for $500, executed by defendant to Maria A. Rowe, dated October 25, 1893, and payable five years after date. The case made by the defendant’s testimony is that Mrs. Rowe, who was a sister of Mrs. Guy, came from her home in Ohio, in the summer of 1893, to visit the defendant and his wife at Benton Harbor. She was anxious to secure a home for the remainder of her life with her sister and her husband. It was finally agreed that the defendant should build a house, that Mrs. Rowe should contribute $500 for that purpose, and, in consideration therefor, should live with, and be taken care of by, the defendant and his wife. The house was built during that summer; the agreement carried out; Mrs. Rowe had her home with, and was taken care of by, the defendant until her death, in July, 1894. The entire arrangement rested in parol, and, when Mrs. Rowe paid the money, Mrs. Guy proposed that her husband execute a note to Mrs. Rowe, so that, if Mr. Guy died first, she would have something to show that she had let ‘him have the money. Mrs. Rowe did not want the note, but finally took it, placed it in an envelope, and wrote on the outside, “Juan, take this.” The evidence justified the finding by the jury that this arrangement was made, that it was carried out to the satisfaction of Mrs. Rowe, that she did not want the note, that she wanted it given up to Mr. Guy, and there was evidence tending to show that she understood that he had taken it as she directed. Soon after her death, defendant took the note in the presence of others, and, after^the appointment of the administrator, told him the facts. He was satisfied of their truth, did not include the note in the inventory of the estate, and did not bring suit until compelled to by some of the legatees. Verdict and judgment were for the defendant.

      Samuel H. Kelley (Edward Bacon, of counsel), in pro. per.

      G. M. Valentine, for appellee.
   Grant, C. J.

(after stating the facts). It is contended on behalf of the plaintiff that the consideration for this note was money loaned, and that parol evidence was inadmissible to show that the consideration was otherwise, under the authority of Phelps v. Abbott, 114 Mich. 88, and authorities there cited. It is contended by the defendant that the note was given up to him by the deceased, and that it was void for want of consideration. The court instructed the jury that there was not sufficient evidence of delivery to constitute a gift, but submitted the case to them upon the theory that there was no consideration.

A want or failure of consideration may always be shown in defense of a promissory note. If it were established that the money which defendant obtained from Mrs. Rowe was the consideration for the note, plaintiff’s position would be sound; but, according to the evidence on behalf of the defendant, this was not the consideration for the note, but was the consideration for defendant’s agreement to build a house, and provide a home and maintenance for Mrs. Rowe, which agreement had been executed by him up to the time the money was paid and the note given. The $500 could not serve as a valid consideration for both agreements. If it was paid pursuant to the first agreement, then there was no consideration for the note.

We think the case was properly submitted to the jury. Judgment affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    FENTON v. MILLER.
    1. Tenancy in Common — Use and Occupation — Allowance eor on Partition — Statutes.
    2 How. Stat. § 5778, which provides that one tenant in common may maintain an action for money had and received against his co-tenant for receiving more than his just proportion of the rents and profits, and which is construed to justify a recovery only for moneys actually received, exclusive occupancy not being sufficient to create a liability under the statute, does not impair the right of a tenant against whom the premises have been held adversely by his co-tenant to have an allowance made in partition proceedings for the value of the use and occupancy.
    2. Same — Death oe Co-tenant — Widow’s Homestead and Dower Rights — What Interest Subject to.
    The widow of a deceased tenant in common, who, after her husband’s death, holds the entire premises adversely to her co-tenant, will not be relieved from liability to such co-tenant for the rental value of his undivided interest, because of her homestead and dower rights in the undivided interest which belonged to her husband.
    3. Same — Demand for Possession — Ejectment.
    The commencement of an action of ejectment by one tenant in common against a co-tenant who has excluded him is a sufficient demand to be let into possession.
    4. Same — Partition—Recovery of Rents — Limitations.'
    W here, in partition proceedings between tenants in common, one of whom has for a number of years excluded the other from possession, the former asks credit for betterments and improvements made during the entire period, he cannot equitably have the statute of limitations applied against the excluded tenant’s right to an allowance for use and occupation during the same period.
    5. Same — Improvements and Betterments.
    A tenant in common who makes improvements upon the common property, which substantially increase its value, is entitled, after a sale of the property in partition proceedings, to have the improvements considered in determining his just share of the proceeds of the sale.
    6. Same — Adjustment of Equities.
    Where, in partition proceedings between tenants in common, one of whom has for a number of years excluded the other from possession, the excluded tenant is to be allowed for rental and the tenant in possession for betterments and improvements, equity requires either that the former should be limited in his credit for rents to the value of the premises in their original state, or, if he is to have the benefit of disbursements made in improving the premises to add to their rental value, be charged with his share of the cost of the improvements at the time they were made, rather than with their depreciated value at the time of partition.
    7. Same — Insurance.
    A co-tenant in possession is not entitled, upon partition, to an allowance for insurance claimed to have been paid by him, where it does not in any way appear that the insurance inured to the benefit of the excluded tenant.
    Cross-appeals from Mackinac; Adams, J.
    Submitted January 4, 1898.
    Decided March 1, 1898.
    Bill by Charles B. Fenton against Annie M. Wendell-Miller, Eva M. 'Wendell-McKinnon, and Romain I. Wendell, for a partition of real estate. From the decree rendered, complainant and defendant Romain I. Wendell appeal.
    Modified.

      Henry Hoffman (C. B. Brown, of counsel), for complainant.

      James McNamara (John Atkinson, of counsel), for defendant Wendell.
   Montgomery, J.

Complainant filed the original bill in this case, praying for a partition of lot 12 in the village Mackinac. An answer was put in, and subsequently proceedings were stayed until the title of complainant could be established at law. This complainant was able to do (see Fenton v. Miller, 108 Mich. 246); and thereupon, on the 5th day of October, 1896, an amended and supplemental bill was filed, setting up that, since the filing of the original bill, Annie M. Wendell-Miller and Eva M. Wendell-McKinnon had conveyed their interests in the property to Romain I. Wendell, and praying partition, or, if the property could not be divided without prejudice, that it be sold, and the proceeds divided, and that an account be taken of the rents and profits. The interest of complainant, as alleged in the bill, and as established on the trial, is 13-21. The remaining 8-21 was, after the conveyance to Romain I. Wendell, wholly vested in her. On the same day that the amended bill was filed, an answer was filed by Annie M. Wendell-Miller, which set up that the defendant had spent large sums in improvements, and asked a decree in her favor for the same. Mrs. McKinnon and Romain I, Wendell answer, alleging that their occupancy of the property was while they were minors and members of their mother’s family, at least up to November 4, 1895, when Romain I. Wendell became of age, and that they are not properly chargeable with rents and profits during this time. On the filing of their answer, a consent decree was made, reciting that Romain I. Wendell had succeeded to the interests of her co-defendants in the premises, defining the respective interests of the complainant and defendant as found in the suit at law, reciting that the premises were so situated that an equitable division could not be made, and providing for a sale of the premises, the payment of a portion of the purchase money into court, and a reference to take testimony touching the improvements made upon the premises, taxes paid thereon, the rents received, etc.

In pursuance of this preliminary decree, a sale was made, at which complainant became the purchaser, at the price of $7,500. Eight twenty-firsts of this sum, or $2,849.24, was paid into court, and remains in the hands of the register of the court, to abide the final order .of the court. The parties proceeded to take testimony touching the rents and profits, improvements, repairs, insurance, etc. The case was brought to a final hearing, and decree made, declaring: (1) That defendants Eva M. and Romain I. are not responsible for the rents and profits. (2) That defendant Annie M. Wendell should be charged with rents and profits amounting to $5,100 in the whole, 13-21 of which belongs to complainant, viz., $3,157.-05; that she should be credited with improvements and betterments, $4,737.21; with insurance paid, $266; taxes paid, $406.56, — making a total of $5,409.77, 13-21 of which is $3,348.80, leaving a balance against complainant of $191.75, from which was deducted 8-21 of certain taxes paid by complainant, $25.52, leaving the final balance $166.23, which was decreed to defendant Romain I. Wendell. (3) The costs were decreed to complainant. From this decree both parties appeal.

It is contended on behalf of defendants that no allowance should be made for the value of the use and occupancy of the premises by Mrs. Wendell. The statute (section 5778, 2 How. Stat.) limits recovery against a co-tenant to moneys actually received by the tenant in possession in excess of his just proportion of the rents and profits. This statute is a substantial re-enactment of the statute 4 Anne, chap. 16; and under the English decisions, to justify a recovery under this statute, the tenant must actually have received rents and profits. His exclusive occupancy is not enough to create liability. Henderson v. Eason, 17 Adol. & E. (N. S.) 701. See, also, Everts v. Beach, 31 Mich. 136 (18 Am. Rep. 169). But this statute has not been construed as impairing the common-law remedies existing in favor of the co-tenant who is excluded from possession by the occupying tenant. In such a case he may maintain ejectment, and in another action recover the profits. Indeed, the most forcible reason given against a right to recover on a showing of mere occupancy is that • plaintiff’s mere omission to occupy ought not to constitute a ground of action against one who occupies of right. In this case it appears by defendants’ answer to the original bill, filed by Annie M. Wendell-Miller, December 24, 1886, that the premises had been adversely held by defendants; and, on the defendants’ motion, the proceedings in this case were stayed until the title should be determined in ejectment. It is. settled that on a partition it is competent for the court to adjust the equities of the parties, including rent to the excluded tenant. Freem. Co-ten. § 512; Hoffman v. Ross, 25 Mich. 175; Hunt v. Hunt, 109 Mich. 399.

It is also contended that as Mrs. Wendell occupied these premises as the widow of her deceased husband, having a dower interest and a homestead right therein, it is inequitable to charge her with the rental value of complainant’s interest. The answer to this is that her dower interest and homestead right only attached to the 8-21 part, and that she had the use of the entire premises, including complainant’s share.

It is also claimed that there was no demand to be let into possession; but it appears that an action of ejectment was commenced in 1880, which we think a sufficient demand.

Some question is also made as to the effect of the statute of limitations; but, in the view we take of the accounting, this question is not of much importance, as, if the defendant is to have credit for the expenditures made since 1880 in betterments and improvements, it is apparent that it would be grossly inequitable to exclude all chai’ges for rental value during the same period, as this would result in permitting the defendant to devote the avails of complainant’s property to the purpose of creating a charge against him.

Complainant contends that defendant is not entitled to compensation for improvements; but we think, under the circumstances in this case, the circuit judge was right in holding that she is entitled to have the improvements considered in determining what is a just division of the proceeds of the sale. When premises are susceptible of division, the court will award to the party making the improvements the part on which the improvements are situated, and, when the entire premises are sold, it is equitable that the same result should be reached by awarding the increased value of the premises, by reason of the improvements, to the party making them. Freem. Co-ten. § 510. In such a case, however, it is but just to require that a party making claim for improvements offer to share their rents with his co-tenant. Id. § 511. For this reason, as before stated, the statute of limitations cuts no figure in this case, as complainant does not insist on it, and as defendant, as a condition to asking complainant for improvements, should be required to account for rental value.

What should be allowed as compensation ? The circuit judge allowed the present value of the improvements. This course is, doubtless, in accord with the general rule. Freem. Co-ten. § 510. But defendant contends that, as against the charge for rental, the improvements should be charged at cost, as the expenditure was a disbursement in order to make the premises rentable at the price charged in the accounting. We think this contention is just. Either the complainant should be limited in his charge for rent to the value of the premises in their original state, or, if he is to have the benefit of the increased rents, the defendant should have credit for tne expenditures which made it possible to receive these rents. This is exact equity between the parties. We are disposed to adopt the figures of the circuit judge as to the rental value, viz., $5,100. We think his figures are also substantially accurate as to the repairs and improvements, which include rebuilding of the homestead, and the building of an additional cottage, amounting to $0,316.27. Defendant has also paid $406.56 for taxes, making a total credit of $6,722.83, which, less rental, leaves $1,622.83. Complainant should be charged with-13-21 part of this, $1,004.61. Complainant at one time paid taxes, $67.19. He should be credited with 8^21 of this, being $25.52, which, deducted from allowance to defendant, leaves $979.09, which, with interest from date of sale, will be allowed to defendant.

That this case may not be misapprehended as a precedent, it should be stated that the present value of the improvements exceeds the sum allowed, and that the expenditures in excess of the present value of the improvements have in our computation been applied in the reduction of the rental. We make no allowance to defendant for insurance, for the reason that it does not in any way appear that the insurance inured to the complainant’s benefit, and we do not deem the charge proper. Peoria Marine & Fire Ins. Co. v. Hall, 12 Mich. 209.

Complainant will be entitled to costs of the court below, to be paid out of this sum. Defendant will recover the costs of this court.

The other Justices concurred.