author: Montgomery, J.

text:
    COLE v. LEE.
    1. Wills — Construction—Trusts—Creation.
    A will, providing that after the payments and disbursements therein directed shall have been made, the residue of the property shall be divided among the testator’s grandchildren, examined, and held, in view of directions concerning the management of the estate and of payment of the living expenses of the testator’s son and his wife during their lives, to create a trust in the hands of the executors for the lives of the testator’s son and his wife and not to vest the estate in the residuary legatees upon payment of funeral expenses and specific disbursements.
    2. Perpetuities — Restraint of Alienation — What Allowable.
    Where a trust is created for the lives of two persons by a will, an annuity in favor of another person charged upon the same property, being for a definite sum, does not. suspend alienation for a longer period than two lives in being.
    Appeal from Wayne; Donovan, J.
    Submitted November 14, 1905.
    (Docket No. 127.)
    Decided March 5, 1906.
    Bill by Darius Cole, Jr., and others against Adelbert R. . Lee and Robert Maxwell, executors of the last will and testament of Darius Cole, deceased, Carrie L. Humphrey, and Carrie Cole to obtain a construction of said will. From a decree for complainants, defendant’s executors appeal.
    Reversed, and decree entered for defendants.

      C. K. Latham {John J. Speed, of counsel), for complainants.

      Fred C. Harvey, for appellants.
   Montgomery, J.

This bill is filed to obtain a construction of the will of Darius Cole and to require a distribution of the estate to the surviving children of Frank D. Cole. The provisions of the will are as follows:

First. I give and bequeath to my son, Frank D. Cole, the sum of twenty thousand dollars, the same to be paid to him by my executors as soon as the same can be paid without injury to my estate.
Second. I give and bequeath to my grandson, Darius Cole, Jr., the sum of one thousand dollars, to be paid to him when he attains the age of twenty-one years.
Third. My executors are hereby directed to pay to my niece, Phebe Simons, the sum of two hundred dollars each year during the term of her natural life.
Fourth. My executors are hereby directed to furnish to Mrs. Carrie L. Humphrey a home at a cost not exceeding two thousand dollars, and they are also directed to pay her the sum of fifty dollars per month each and every month during the term of her natural life, and, inasmuch as the said Carrie L. Humphrey has been a member of my family for nearly thirty years, and was the associate and confidante of my deceased wife, I direct my executors to give such attention to her pecuniary circumstances as may be necessary; to ascertain her wants and to make such further expenditures as may be necessary to secure her maintenance in ease and comfort.' I also give 'and bequeath to said Carrie L. Humphrey the sum of five hundred dollars, payable to her after my decease.
“Fifth. I give and bequeath to each of my nieces, Mary Devine and Melissa Devine, the sum of two hundred dollars each.
“Sixth. I hereby appoint Frank D. Cole, Adelbert R. Lee, and Robert Maxwell my executors, and having full confidence in their ability and integrity, I request the court before whom this will may be proved that no bonds be required of the said executors to secure the faithful performance of their duties. In case of the death of either of such executors, their survivors or survivor shall continue to execute the trusts hereby created.
Seventh. I direct my personal estate, largely consisting of steamboat property, be managed as near as may be the same as I have heretofore managed the same, until the same can be sold on terms favorable to my estate, and permission is hereby expressly granted to my executors to use, run and operate such vessels as I may own at the time of my death for the benefit of my estate until a favorable sale can be made.
“Eighth. I give my executors power and authority to sell and convey any of the lands of which I may die seised, but hereby express the opinion that said land had better be held as assets of my estate for a considerable time to come.
“Ninth. I direct my executors to furnish funds from my estate to pay all reasonable expenses of living of my son Frank D. Cole and his wife and children during the lifetime of each of the said Frank D. Cole and his wife, and sufficient also to secure the education of all the chil-. dren of said Frank D. Cole now living or that may hereafter be born; and in case said Frank D. Cole should die before all of his children shall become of age, or in case Frank D. Cole shall for any reason become incompetent to properly care for the said children, I direct my executors to see that said children are properly supported and educated.
Tenth. I direct my executors to invest such funds belonging to my estate as may at any time accumulate and not be needed for the uses herein mentioned at interest in first mortgages on improved real estate at not to exceed one-half of its appraised value.
“Eleventh. After the payment of my funeral expenses and all my just debts, which my said executors are hereby directed to pay, and after the payments and disbursements herein directed shall have been made, I give and bequeath all the rest and residue of my estate, both real and personal, to my grandchildren, the children of said Frank D. Cole, both those now living and such as may hereafter be born, if any, share and share alike, the same to be equally divided between them by my executors, and in case of the decease of any such grandchildren or children leaving a child or children as heirs before such division shall have been made, such child or children shall take the share which its or their parents or parent would have been entitled to if still living.
Twelfth. When any of my said grandchildren shall arrive at the age of twenty-one years my executors may make to such grandchild such advances towards their prospective share of my estate as they shall deem safe and proper by and with the consent and approval of the proper court.”

The complainants contend that under the eleventh clause the estate vested in the residuary legatees after the payment of funeral expenses and the payment of the specific disbursements provided in other clauses of the will. The defendants contend that a trust was created terminable at the death of Frank D. Cole and his wife, and that, as Carrie Cole, wife of Frank D. Cole, is still living, the trust continues. The circuit judge adopted the construction contended for by complainants, and, after creating a fund to provide an income to meet the requirements of the fourth and ninth clauses, directed a distribution of the remainder. The executors appeal.

The provisions are somewhat obscure, but we are agreed that the intention of the testator to create a trust to continue until the decease of both Frank D. Cole and his wife can be gathered from the four corners of the instrument. Bv the ninth clause the executors are directed to furnish funds to pay all reasonable expenses of the testator’s son Frank D. C,ole and his wife and children during the lifetime of each said Frank D. dole and his wife. The purpose is clear to vest in the trustees a discretion (subject to review by the court) and to ■ leave the control of the estate in the hands of the trustees. As indications that such control was intended may be cited the tenth clause, providing for the investment at interest of such funds as “ may not he needed for the uses herein mentioned the second clause, which gives a legacy to Darius Cole, Jr., on his reaching his majority; and the twelfth, which authorizes advancements to any of the grandchildren whenever they attain the age of 21 years. We think the intention to create a trust to continue until the death of Frank D. Cole and wife is manifest. This was not a suspension of the power of alienation for a longer period than two lives in being.

The charge of an annuity in favor of Mrs. Humphrey does not prevent the vesting of the estate, as the amount is fixed. See Buchanan v. Little, 154 N. Y. 147.

The decree will be reversed, and a decree entered in accordance with this opinion.

Grant, Blair, Ostrander,'and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    PEOPLE v. NEAL.
    1. Fish — Illegal Fishing — Prosecution—Conviction.
    Where, in a prosecution for taking and attempting to take fish with nets, contrary to section 5865, 2 Comp. Laws, the respondent admits on the witness stand that he was fishing with nets on “ about ” the date alleged, the attempt, which is equally an offense with taking fish, is made out.
    2. Criminal Law — Direction of Verdict.
    Where, in a criminal case, all the essential facts are admitted, a verdict of guilty is properly directed.
    3. Fish — Illegal Fishing — Waters Prohibited.
    Section 5865, 2 Comp. Laws, prohibiting fishing with nets in any of the waters of this State except the Great Lakes and the bays and harbors connected with said lakes, Saginaw Bay, etc., does not permit net fishing in the bays and harbors connected with Saginaw Bay, etc., but only in those bays and harbors connected with the Great Lakes.
    ■4. Same — Information—Issues.
    An averment in an information for unlawful fishing contrary to section 5865, 2 Comp. Laws, that respondent was fishing in a certain named river, does not require proof that the water named'was in fact a river, or require proof of anything in that respect other than that the water was not within the excepted class.
    Exceptions before judgment from Tuscola; Beach, J.
    Submitted November 16, 1905.
    (Docket No. 237.)
    Decided March 5, 1906.
    John Neal was convicted of violating the fish law.
    Affirmed.

      Pulver & Smith, for appellant.

      Walter S. Wixson, Prosecuting Attorney, for the people.
   Blair, J.

Respondent was convicted in justice’s court upon a complaint and. warrant charging that:

“ On the 20th day of October, 1904, at the township of Wisner, in the county aforesaid, one John Neal did unlawfully then and there, with a certain pound net, take and catch and attempt to take and catch a large number of fish in the waters of the Quanicassee river; the said pound net not being then and there a dip net used in and for catching mullett, red sides and suckers or any or either of them, and the said Quanicassee river not being then and there Lake Huron, Lake Superior, Lake Erie, Saginaw Bay, Sault Ste. Marie, St. Clair, Saginaw and Detroit rivers or any or either of said rivers, lakes or bays, nor being then and there a bay or harbor connected with said Lake Michigan, Lake Superior, Lake Huron, Lake Erie, Saginaw Bay, Sault Ste. Marie, St. Clair river, Saginaw river and Detroit river or with any or either of said rivers, lakes or bays, contrary to the form of the statute,” etc.

From this conviction respondent appealed to the circuit court, where a verdict of guilty was directed by the court, and he has brought the case to this court for review upon, exceptions before sentence.

The errors relied upon for a reversal are:

First. That the court directed the jury to find a verdict of guilty without leaving their seats.
Second. That the court did not submit to the jury, as a question of fact, whether the respondent was guilty of the offense specified in the complaint and warrant and identified by the people’s witnesses.
Third. That the so-called Quanicassee river is not a river under the complaint and the proofs, but is either a harbor or bay connected with Saginaw Bay.
Fourth. That the Quanicassee river so-called is an integral part of Saginaw Bay.

We shall consider the second point first.

The offense complained of comprises two distinct branches: (1) To “ take or catch ” fish with nets; (2) “to attempt to take or catch ” them. Section 5865, 2 Comp. Laws. It was not essential that the prosecution should prove the commission of both branches of the offense alleged upon the precise day charged, but, having directed their entire proofs to occurrences on certain days, it was necessary to prove sufficient facts to justify a conviction of one branch of the statutory offense on the chosen day. The complaint Was made by one of the State deputy game wardens, who testified upon the trial that he went to Quanicassee upon October 18th, but did not see respondent on that day.

“I found the nets that respondent is charged with having illegally used opposite Mr. Neal’s fishhouse. There were two pound nets and a submarine. I saw Mr. Neal lifting those nets on the morning of the 19th; on the morning of the 20th, we went down and seized them. * * * I stayed at the hotel all night and went out there again the morning of the 19th about 5 o’clock. I saw Mr. Neal about 6 o’clock in a scow. There was another man with him, who I afterwards learned was his son. I saw him taking up some nets while I was on the bridge about half a mile from them. I knew Mr. Neal when he went under the bridge, and their boat was about 'two-thirds full of fish. I went to Bay City and got the deputy fish warden there and returned about 7 o’clock the next morning. We seized all the nets we found in the water of this river and put them on board our tug. This was on the 20th, and we stayed overnight. * * * They were placed on the tug, and he came and said his nets were there, and he wanted them.”

The Bay City deputy, referred to, testified that:

“Mr. Neal came to the boat and said he wanted his nets, and said if he had been there we would not have lifted the nets.”

This is, in substance, all of the testimony given by the prosecution as to the actual commission of the offense. Respondent testified in his own behalf, as follows:

“I saw Hoyt, Trudell, and Summerfield the morning of the 20th of October.
Q. Did you tell him at that time that those were your nets ?
(‘A. I don’t think I did.
Q. Did they have your net there that morning ?
“A. They had my son’s net.
“ Q. Did they have any nets belonging to you ?
“A. No, sir; I had been fishing at Quanicassee since I bought my place there. I haven’t fished there steady. The land would be of no value for anything except fishing. I bought it on purpose to catch what fish I could there.”

Cross-examination:

Q. You were using these nets on about the 20th ?
“A. I was helping my son, yes.
“ Q. Fishing with them ?
“A. Yes.”

Roy Neal, a son of respondent, testified that he owned the nets seized, and that neither he nor his father lifted any nets on the 20th, but lifted their fish box at that time and took out fish which had been caught previously. Respondent, being recalled, testified:

“ I heard the testimony of Mr. Hoyt about my lifting nets on the 20th. I did not lift any nets on the 20th. I did not put any nets out there on the 20th. I did not handle any nets in any way on the 20th. I assisted my son in taking out some fish confined in a box. We have a box made of about six-inch boards. There is an inch space left between each board all along the sides and across the ends and the cover on the top and the bottom, Same space on the bottom, to give the fish fresh water. We keep the fish in there until we get enough of them to take to Bay City. The box is about 6 feet wide, 16 feet long, and 4 feet high. I did not take any fish or lift any nets on the 19th.”

Cross-examination:

“ Q. How long had you had these fish in the box, Mr. Neal?
“A. Probably a couple of days or such a matter, maybe longer, I can’t say.
Q. From what point were they taken? (Same objection for defendant. Objection overruled. Exception f:or defendant.)
“A. Well, the principal part of them, I don’t know. I think about half of them were taken from nets outside in the bay.
“ Q. Where were the rest of them taken from ?
A. From the nets in front of my place.
‘ ‘ Q. You assisted in taking them out ? (Same objection by respondent. Objection overruled. Exception for respondent.)
“A. Yes.
“Q. You say we have a box, who do you mean by ‘we ?’
“A. Me and my son.
“Q. You are engaged in fishing together ?
“A. I was helping him.”

So far as the actual lifting of the nets or the taking of fish therefrom on the 19th or 20th is concerned, there was a ■conflict in the testimony, presenting a question of fact for the jury, but it was equally an offense to have the nets out, attempting to take fish with them, and respondent admits that he and his son were fishing with them at “aboutthe 20th,” the time specified in the complaint, being the time when the State deputy actually took them from the water. The court properly held, so far as this question is concerned, that the offense was admitted as charged.

We are also of the opinion that there was no error in directing a verdict, if the facts proved will sustain a conviction as a matter of law. Respondent was charged with a misdemeanor. He admitted his intent to take the fish, and all the essential facts, upon the witness stand. The case is ruled by People v. Elmer, 109 Mich. 493.

We shall consider the third and fourth points together. The statute prohibits fishing with nets “in any of the waters of this State' except lakes Michigan, Superior, Huron, and Erie and the bays and harbors connected with said lakes, Saginaw Bay and the Sault Ste. Marie, St. Clair, Sagináw, and Detroit rivers.” It is immaterial, therefore, that the waters where the offense was alleged to have been committed were described as “the waters of Quanicassee river,” so long as the proofs showed that they were not within the excepted waters. The waters in question, as appears from the testimony, are commonly known by the name of the Quanicassee river. “The name cannot alter the thing. It cannot be received as a proper definition of the character of the water.” State v. Gil manton, 14 N. H. 477. Calling these waters a river in the complaint did not require the prosecution to prove any more than the statute required, viz., that they were “waters of this State,” not included within the excepted waters. The “bays and harbors connected with said lakes” plainly refers to the lakes previously mentioned, and not to Saginaw Bay and the rivers mentioned after-wards, and the language negativing the so-called Quanicassee river, being a bay or harbor connected with Saginaw Bay, was mere surplusage. We do not think, however, that, under the evidence in this case, a jury would have been justified in finding that the Quanicassee was a bay or harbor of the Saginaw Bay. We are also well satisfied that, giving the evidence the most favorable construction that it will bear, it does not support respondent’s contention that the Quanicassee is a part of Saginaw Bay, within the meaning of the statute. It is not necessary to determine whether the Quanicassee is a river, a drainage channel, a pond, slough, or bayou. It is sufficient that it does not come within the enumeration of the waters excepted by the statute.

We find no errors, and the court will proceed to judgment.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    HAMILTON v. AMERICAN HULLED BEAN CO.
    1. Equity — Fraud—Bill for Relief — Parties.
    Persons who are separately induced to subscribe for stock in a corporation by means of the same fraudulent representations, may unite in a bill praying identical relief.
    3. Same — Cancellation—Adequate Remedy at Law.
    A bill, praying the cancellation of a subscription to the capital stock of a corporation and for return of money paid thereon, on the ground of fraud, states a case within the jurisdiction of equity, notwithstanding the same facts might be pleaded in defense of an action on the subscription, and an action at law might be maintained for the money already paid. Fred Macey Co. v. Macey, ante, 138, followed.

    3. Same — Laches.
    Subscribers to the capital stock of a corporation, praying cancellation of their subscriptions on the ground of fraud, are not guilty of laches where they subscribed in September,. 1901, first learned of the fraud in the latter part of October, 1903, and filed their bill February 29, 1904.
    Appeal from Kent; Wolcott, J.
    Submitted December 7, 1905.
    (Docket No. 160.)
    Decided March 5, 1906.
    Bill by. James L. Hamilton and Henry T. Heald against the American Hulled Bean Company, Limited, and Charles D. Fuller to set aside the sale of certain shares of •corporate stock on the ground of fraud. From an order sustaining a demurrer to the bill, complainants appeal. ‘
    jReversed.

      Drew & Heald, for complainants.

      Howard & Howard, for defendant Fuller.

       For false representations as ground for rescission of subscription to corporate stock, see note to Fear v. Bartlett (Md.), 33 L. R. A. 721.

   Blair, J.

The complainants filed their bill of complaint in the Kent circuit court, in chancery, against the American Hulled Bean Company,,Limited, and Charles D. Fuller, February '29, 1904. Defendant Fuller demurred to the bill of complaint, and the demurrer was sustained in the lower court, and the complainants bring the case here on appeal from the order sustaining the demurrer.

The bill of complaint states that: The defendant American Hulled Bean Company, Limited,is a partnership association organized on or about June 19, 1901. In the latter part of August, 1901, the company filed amended articles which providedfor a capital stock of $5,000,000, $3,000,000 of which was paid in, and the remainder was to be treasury stock. No money was actually paid in but the $3,000,000 purported to have been paid in by the assignment of letters patent issued by the United States of America on March 12, 1901, to defendant Charles D. Fuller. Between August 28, 1901, when the amended articles were filed, and September 4, 1901, all the subscribers to the articles of association agreed that $500,000 of the treasury stock should be perferred stock, and $1,500,000 common stock, and that the $3,000,000 paid in by the assignment of the patents should be common stock. On or about the 4th day of September, 1901, the defendant, American Hulled Bean Company, Limited, entered into an agreement with defendant Fuller to sell him $150,000 par value of the treasury preferred stock, and a like amount of the treasury common stock of the company, for the sum of $75,000 in cash, and the assignment of his Canadian patents on the process mentioned above, and as a further inducement to him to purchase the same, agreed to aid him in disposing of the stock at a profit to himself, and in pursuance of the agreement it was understood that Fuller would undertake to interest the general public in the sale of the stock, and that he might solicit subscriptions for preferred stock in the company in the name of the company, offering two shares of the common stock as-a bonus with each share of the preferred stock, and it was further agreed that he might represent that the preferred stock was being sold only for cash and at 100 cents on the dollar, and that the company had authorized $100,000 of the preferred stock to be placed on the market, and it was further agreed that the subscription lists used in obtaining the subscriptions might state that the stock to be issued to and received by the subscribers should be treasury stock, and that there was in the treasury of the company $500,000 of the preferred stock, and $1,500,000 of the common stock of the company. It was further agreed that when the subscriptions were obtained by Fuller they, should be filled by issuing to the subscribers stock from the block sold to Fuller, without the knowledge of the subscribers, and it was further agreed that the company should collect from subscribers obtained by Fuller the full amount of their stock subscriptions at par, and then, without their knowledge, should apply all amounts so received, first, in satisfying and canceling the purchase price of $75,000 to be paid by Fuller to the company, and thereafter all amounts in excess of that sum and the unsold portion, if any, of that block of stock was to be turned over to defendant Fuller: Fuller never paid in any part of the purchase price, except as it was paid by applying the amounts paid by the complainants and the other subscribers to stock on his debt to the company, and the scheme was conceived between Fuller and the company for the purpose of cheating, deceiving, and defrauding all the subscribers whom Fuller might secure by means thereof.

Shortly after this agreement was made between Fuller and the company, Fuller called upon the complainants at Grand Rapids, Mich., and solicited them to subscribe for preferred stock in the company, and represented to them the things which it was agreed between him and the company that he might represent, as stated above, and, in addition, he represented that he had invented a process for hulling beans, and that he had sold and transferred all his right, title, and interest in that-invention, and everything else pertaining thereto which he might invent or which, might be secured by him, to certain persons in Battle Creek, Mich., for the sum of $100,000, and that the Battle Creek parties had sold back to him a one-fifth interest in the invention, and that he and his Battle Creek friends had organized the defendant company with a capital of $5,000,000, $4,500,000 of which was common stock, and $500,000 preferred stock, and that they had accepted from the company $3,000,000 in the stock of the company in full payment of all their right, title, and interest in their invention and patents on the same, and further Represented that the entire $500,000 of preferred stock and $1,500,000 of common stock was in the treasury of the company, and that no part of the same had been issued or disposed of, and that the board of managers had authorized the placing on the market of not to exceed $100,000 of the preferred stock, at par, and that he was acting in behalf of the company in endeavoring to place the stock on the market, and that he was authorized by the company to give two shares of the common stock as a bonus with each share of treasury preferred stock. Fuller presented to complainants at that time a subscription agreement, and requested them to sign it. The subscription agreement contained the statement that the American Hulled Bean Company, Limited, had been organized with a capital stock of $5,000,000, $4,500,000 of which was common stock, and $500,000 of which was 7 percent, preferred stock, and that all the preferred stock and $1,500,000 of the common stock was treasury stock. The subscription agreement further contained the terms of payment, which were par for the preferred stock. Complainant Hamilton signed the subscription agreement for 50 shares of the preferred stock, and 100 shares of the common stock, and agreed to pay therefor $5,000. Complainant Heald signed for 10 shares of preferred stock, and 20 shares of common stock, and agreed to pay therefor $1,000, and they both of them actually have paid in cash to the American Hulled Bean Company, Limited, the amount which they agreed to pay.

The bill of complaint expressly alleges that it was of the essence of said agreement that the preferred stock for which they subscribed and agreed to pay, and which was to be issued to them as above set forth, should be treasury stock, and that there should have been in the treasury of said company, at the time they made their subscriptions, $500,000 of preferred stock, and $1,500,000 in common stock of said company, and that all of said treasury preferred stock so disposed of should be sold at par for cash, and that they signed said agreement in reliance upon statements and representations of said Fuller, and the terms and conditions of said subscription contract, and believing the same to be true, that they should receive treasury stock, and that there was at that time $500,000 of preferred stock and $1,500,000 of common stock, not disposed of, in the treasury, and believing that the sums paid by them on said subscriptions would be used by said Hulled Bean Company in the development and furtherance of its operations. . If complainants had not relied upon the ■statements of Fuller and the statements contained in the subscription agreement, that the preferred stock for which they subscribed should be treasury stock, and that at the time they subscribed there was in the treasury $500,000 of preferred stock and $1,500,000 of common stock, and that all of the treasury stock to be disposed of should be sold at par for cash, they would not have signed the subscription agreement, nor would they have signed it if they had not supposed from the representations mentioned above that all the preferred stock and $1,500,000 ■of the common stock was undisposed of in the treasury, and that the sums paid by them and the others signing the subscription agreement would be paid into the treasury of the American Hulled Bean Company, Limited, and used by the company in the development and furtherance of its operations. Complainants were entirely ignorant of the scheme and plan of the defendants, and if it had "been made known to them, at the time they subscribed, that any part of the treasury stock had been disposed of io Fuller or any one else for less than its par value in cash, or, instead of receiving treasury stock in fulfillment of their subscription contract, they were to receive stock from the block set apart for Fuller, or that the sums paid by them on the contract were to be applied, first, to satisfy a debt of Fuller to the company, and second, the balance to be paid to defendant Fuller, they would have absolutely refused to sign the contract or to invest any money in the company. This was known to Fuller and the company, but the facts were concealed from and misrepresented to complainants by the defendants for the express-purpose of deceiving, cheating, and defrauding them and. obtaining their money.

Defendant Fuller succeeded in securing subscriptions for the preferred stock of the company amounting to 850 shares, or $85,000. Fuller reported his success to the company and directed them to collect in the money and apply $75,000 on the cash payment which he was required to make by the terms of his contract with the company, and'return the balance to him. The company agreed to do this. Complainants paid their subscriptions direct to the company, and it was applied, together with the sums, of money received from other subscribers, in satisfaction of the debt of Fuller, of $75,000, to the company, and the balance in excess of that amount was returned to defendant Fuller, without the knowledge or consent of the complainants.

It is alleged and charged that the action of the officers, and the board of managers of said Hulled Bean Company in applying and paying the funds received from the complainants and the other subscribers mentioned, in the matter aforesaid, constituted a gross violation of their duties to the members of the said company; that it was a. wrongful and illegal, diversion of funds belonging to said, company; that it amounted to a fraud upon the complainant which, in équity, should vitiate and warrant cancellation of said subscription contract; and that the entire scheme and plan of said defendants, through the active instrumentality of the said defendant Fuller, and the cooperation of the officers and board of managers of the Hulled Bean Company, was conceived and carried out with the intent and for the purpose of obtaining the money of the complainants under false pretenses, and with the intent and purpose to cheat, deceive, and defraud them. The payments of complainants on their subscriptions were never credited by the company on their subscriptions, and their subscriptions were never canceled, and complainants are still liable on their subscriptions to the company and will remain so until they are canceled. Complainants were ignorant of the arrangement between Fuller and the company until the latter part of October, 1903. At that time a committee of the stockholders went from Grand Rapids to Battle Creek, Mich., to investigate the affairs of the company in behalf of the complainants and other stockholders in the company. The committee returned and reported some of the facts mentioned above, and the report of the committee was the first intimation that complainants had of such agreement between Fuller and the company. Complainant Heald immediately wrote a letter to defendant Fuller, demanding repayment to him of $1,000, with interest, on account of the misrepresentations and fraud. Defendant Fuller came to Grand Rapids in response to the letter, and at that time complainant Heald offered to return his stock to Fuller, and demanded a return of his money. Fuller refused to do that, and stated that he did not consider himself liable either to complainant Heald or any of the other subscribers. Complainant Hamilton was kept informed of all the acts of complainant Heald in the premises. The complainants still hold, respectively, 50 and 10 shares of preferred and 100 and 20 shares of common stock in the company, and have deposited the certificates for the same in court, duly indorsed for transfer. It was further alleged that both the common and preferred stock was worthless at the time of filing the bill.

The complainants’ prayer for relief is as follows:

“Tour orators therefore ask the aid of the court in the premises:
“1. That the above-named defendants, the American Hulled Bean Company, Limited, and Charles D. Fuller, may appear and answer this, your orators’ bill, without oath (answer on oath being hereby expressly waived), and that said Charles D. Fuller may come to a just and fair account touching the amount due to your orators for said money paid to him as aforesaid.
“ 2. That their subscription to said stock of the American Hulled Bean Company, Limited, may be canceled.
“3. That said defendant, Charles D. Fuller, may be decreed to accept said stock herewith deposited with said clerk and to pay forthwith to your orators the amounts which they paid for stock so transferred to them as aforesaid, with interest thereon from the dates of payment, together with your orators’ reasonable costs and charges in this behalf sustained.
“ 4. And that your orators may have such other relief or such further relief in the premises as shall be agreeable to equity and good conscience.
“5. May it please the court, the premises being considered, to grant to your orators the writ of subpoena, to be issued out of and under the seal of this court, to be directed to the said American Hulled Bean Company, Limited, and Charles D. Fuller, defendants herein, and thereby commanding them and each of them, on a certain day and under a certain penalty to be therein inserted, personally to be and appear before this court, then and there to answer, all and singular, the said premises, and to stand to, abide and perform such order and decree as this court shall make therein and shall be agreeable to equity and good conscience. And your orators will ever pray, etc.”

The defendants’ demurrer reads as follows:

“Now comes the above-named defendant, Charles D. Fuller, by Howard & Howard, his solicitors, and says that the complainants have not stated such a case in their amended bill as entitles them to relief in a court of equity, for the following reasons:
“1. Because there is no equity in the amended bill.
“2. Because the allegations in the amended bill show that if the complainants are entitled to any remedy at all, it is in a court of law.
“ 3. Because the allegations in the amended bill show that if the complainants ever had any right or claim for a rescission of their alleged contract, they have lost the same by their laches.
“ 4. Because the complainants are not jointly interested. The allegations of the amended bill, if they show any rights at all in the complainants, show a several and individual right and not a joint right.
“5. Because, under the allegations of the amended bill, the complainants are not entitled to any relief in a court of equity.
“6. Because the amended bill sets up no ground for equitable relief.”

The important questions for consideration in this case are, first, whether the complainants have such a community of interests as authorizes their joining in the bill of complaint; and, second, whether complainants have not such an adequate remedy at law as to oust equity of jurisdiction. '

We thinkffhe first question must be answered in the affirmative. Sherman v. Stove Co., 85 Mich 169; Bosher v. Land Co., 89 Va. 455. It is true that in Sherman v. Stove Co. the complainants were, at the time of the subscription, partners in business, and the representations were either made to both at the same time or to one acting for both, and the money was drawn out of the partnership, but their interests in the corporation and in the shares of stock for which they subscribed were as several and distinct as in the case before us. It should make no difference in principle whether the representations are made to the prospective shareholders at the same time when they are gathered together or to them separately at different times, provided the representations are identical, the interests and subject-matter are identical, and the relief sought is identical. As said by the court in the case of Bosher v. Land Co., supra:

" Where the parties allege in the bill that the fraudulent acts are exactly the same and perpetrated by the same means and the injury identical as to all, except only in the amount of the injury — as where the same false statements are distributed to all and the same false and deceitful prospectus is operated upon all alike and all have been defrauded by the same means, and the relief sought is the same and the subject-matter identically the same — there is a community of interest and right and such persons may unite as coplaintiffs against the common wrong-doer.”

Counsel for the defendants stated upon the oral argument in this court that the demurrer was sustained by the learned circuit judge upon the ground that complainants had an adequate remedy at law, thereby bringing the suit within the principle of Mack v. Village of Frankfort, 123 Mich. 421. The case last cited is distinguishable from the present in that complainants merely sought a money judgment and there was no prayer for cancellation or other relief peculiar to courts of equity. We think the case falls within the principle of John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566). This question is discussed in Fred Macey Co. v. Macey, ante, 138, to which we refer for a full discussion of our own cases.

We do not think that the complainants were guilty of laches under the circumstances disclosed by their bill of complaint, and the order sustaining the demurrer is reversed, with leave to defendant to answer in accordance with the rules of court.

McAlvay, Grant, Hooker, and Moore, JJ., concurred.


text:
    GILMAN v. GILMAN.
    .Deeds — Delivery—Evidence—Sueeioienoy.
    On a bill to remove a cloud from the title to certain lands consisting of a deed which complainant executed in favor of defendant, his daughter, but claims, he never delivered, evidence examined, and held, to show delivery.
    Appeal from Wayne; Rohnert, J.
    Submitted January 4, 1906.
    (Docket No. 11.)
    Decided March 5, 1906.
    Bill by Baxter H. Gilman against Grace G. Gilman'to remove a cloud from the title to certain land. From a .decree for complainant, defendant appeals.
    Reversed, and bill dismissed.
    O. E. Angstman, for complainant.

      Manchester & Prentis, for defendant.
   Montgomery, J.

Complainant filed this bill to remove a cloud from the title to a house and lot occupied by him as a homestead. From a decree granting the relief prayed the defendant appeals.

The parties are father and daughter. On the 11th day ■of October, 1897, complainant executed a deed of the property in dispute to defendant, which deed contained the following clause, viz.:

“ This deed is given and accepted subject to the life, use, and enjoyment of the same by the grantor without rent or other expense thereof.”

The deed was retained in complainant’s possession until •January 24, 1898, when it was recorded. It was after-wards returned to his possession from the office of the register of deeds, and was produced by complainant on the hearing. In November, 1898, a rider was caused to be placed upon an insurance policy then held by complainant, reading as follows:

“ It is understood that the title to the within-described, property is in the name of Grace G. Gilman, his daughter, but that the said B. H. Gilman has a life lease of the property.”

Again on the 13th of March, 1900, a new policy was taken out with the following rider:

“ It is understood that the title to the within-described, property is in the name of Grace G. Gilman, daughter of the insured, and that B. H. Gilman has a life lease to the property. The deed is given and accepted subject to the life, use, and enjoyment of the same by the grantor, without rent or other expense thereof.”

At the time this deed was executed complainant was a widower, and his daughter was a student at Vassar. In. 1899 complainant remarried, and not long thereafter the relations between father and daughter became strained. The testimony shows that up to the time of the second marriage the relations between ■ the parties were of the most friendly. There was also testimony from other witnesses that complainant, before he executed the deed, stated that he contemplated remarrying and intended to deed the homestead to Grace.

We have been thus particular in giving the setting to the main facts as in our judgment much light is thrown upon the main question. That question is whether there was a delivery of this deed with intent to pass title. Upon this question the two parties are opposed in their testimony. The circuit judge determined the case, not upon the ground that one was entitled to more faith than the other, but upon the ground that the circumstances appeared to him to corroborate the view of complainant. Stress was laid upon two facts; that defendant “had carried out none of the duties imposed upon her by the deed,” and that the deed remained in complainant’s possession. We cannot escape the conclusion that too much weight was attached to these circumstances by the learned circuit judge.

When the relationship of the parties is taken into account, and also the fact that at the first the father knew his daughter to be without means (although she came into some property later) and was paying her expenses in college, it was not at all remarkable that she did not understand that she was expected to pay the taxes. As to the retention of the deed by complainant, this is explained by defendant’s testimony that it was left with him for safekeeping. In the summer of 1898, when the daughter was home on vacation, a conversation occurred between the two as to this deed. The daughter testifies that her father took the deed out of a tin box in his room, and handed it to her stating that he had deeded the property over to her; that she examined the deed, expressed her appreciation of the kindness, and then handed it back to her father to be replaced in the box; that she had had articles of her own in this same box — laces, and her bankbook. Complainant agrees that a conversation occurred about the deed in this same room where the safety box was kept, but denies that the deed was shown to defendant at all. He says:

“ I told her I had fixed a deed in her favor so that if anything happened to me, the way I looked at it, I could turn it over.”

In view of the facts that the deed had been previously recorded, and that he subsequently changed the insurance policies as above stated, and of the declaration in relation to his purpose to transfer this property in advance of his approaching remarriage, we are not impressed with the complainant’s candor. The sole question in the case is whether there was a delivery with intent to pass title. We are convinced that there was.

The decree is reversed, and the bill dismissed, with costs of both courts to defendant.

Blair, Ostrander, Hooker, and- Moore, JJ., concurred.


text:
    PERRY v. JOHN HANCOCK MUTUAL LIFE-INSURANCE CO.
    1. Life Insurance — Health of Assured — Eyidenoe
    In an action on a life-insurance policy, a motion for a directed verdict, on the ground that assured was not in good health as warranted at the time the policy was issued, held, properly denied, in view of the report of the examining physician, and the testimony of assured’s relatives as to the work done and recreation indulged by her at that time.
    2. Same — Admissibility of Evidence.
    The report of the examining physician is competent evidence upon the issue of whether the answers of the assured in an application for a policy of life insurance were true.
    3. Witnesses — Physicians—Privilege.
    In an action on a life-insurance policy, physicians cannot disclose any information which they acquired in attending upon assured as a patient.
    4. Insurance — Application—Construction .
    Questions and answers in an application for insurance ought to be liberally construed in favor of the insured.
    5. Same — Occupation—Question for Jury.
    Whether the keeper of a house of prostitution is a housewife, as stated in her application for a policy of life insurance, held, a question for the jury.
    6. Same.
    There being no attempt to dispute defendant’s proofs that insured was keeping a house of prostitution, it was error to submit the question whether she was keeping such a house to the jury.
    7. Same — Warranty—Breach—Waiver.
    Where, in an action on a life-insurance policy, defended on the ground that assured misstated her occupation in the application, it appears that her house was conspicuously a house of ill fame, that defendant’s agent solicited the application at her house, and there is evidence that defendant’s manager collected premiums there, the question whether defendant has not waived the breach of warranty that her occupation was that of housewife should be submitted to the jury.

      Error to Wayne; Donovan, J.
    Submitted January 5, 1906.
    (Docket No. 16.)
    Decided March 5, 1906.
    Assumpsit by Lucinda Perry against the John Hancock Mutual Life-Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Van Zile & Brownson, for appellant.

      Washington I. Bobinson, for appellee.
   Blair, J.

August 25, 1903, Annie Voakes made application to defendant’s agent for life insurance, and on the 29th day of August, 1903, she made the representations shown in the application, a copy of which was attached to the policy. September 23, 1903, the policy was issued by the defendant company at its home office in Boston, and in due course was delivered to the insured. December 8, 1903, 2 months and 15 days after the policy was executed, the insured died — ‘ ‘ primary cause of death, heart disease; secondary cause of death, dropsy.” The statements in the application were, by the terms of the policy, made warranties. In the application is the following .

“ If any statement, or answer in the application for this policy, which application is hereby referred to and made a part hereof, is in any respect untrue, * * * then this policy shall be void. * * *
‘ ‘ I declare and warrant that the representations and answers made herein are complete, strictly correct, and true; that the several questions were duly asked, and that the answers given by me are duly recorded as above; that they shall form the basis and become part of the contract of insurance; that any false or untrue answer shall render the policy null and void; and that said policy shall not be binding upon the company unless at noon upon its date I shall be alive and in good and sound health.”

Among the questions asked applicant and answered by her, as shown by the -application, are the following:

“(4) Q. Present occupation ?
“A. Housewife.
“(5) Q. What other occupation have you been engaged in during the past two years ?
“A. None.
“ (6) Q. Are you now in good health ?
“A. Yes. * * *
“(8) Q. When did you last consult a doctor, and for what ?
“A. Three months ago; pneumonia, recovered. * * *
“ (15) Q. Are you now or have you ever been affected with any of the following diseases? Answer ‘Yes’ or ‘ No ’ to each: * * * Disease of the heart ?
■ “A. No. * * *
“(18) Q. Have you ever had any sickness or injury whatever not already named, or undergone any surgical operation ?
“A. No.”

The proofs, undisputed, show that assured, about six years before she was insured, was a married woman and lived with her husband; that his name was John Yoakes; that James Yokes, a brother of her husband, was a married man and lived just across the road with his wife; that Anna Yoakes, the assured, separated from her husband, and about the same time James Yoakes separated from his wife, and James and the assured, Anna Yoakes, commenced to live in the same house; that ever since and up to the time of her death Annie Yoakes lived with James Yoakes and kept house for him, living about from place to place; that in 1903, and for some time prior to and after the application for insurance, Annie Yoakes, under the assumed name of Annie Miller, lived at 105 Franklin street and 28 Beaubien street, in the city of Detroit, both houses of ill fame; that, while living here, she was examined as required by the health board of the city of Detroit and received certificates showing that she was free from venereal diseases; that, as testified to by two of the police force who knew her by her true name and her assumed name, she was a prostitute; so known and recognized by the health board and the police of the city, and that her business was that of a prostitute, in charge of a house of ill fame'.

Proofs of loss were filed by plaintiff, made upon blanks furnished by the company, which were forwarded to the company at its home office in Boston, Mass. The company declined to pay, for the reason stated by the superintendent, as plaintiff claims, that her daughter had been insured too short a time. Plaintiff brought suit, and recovered on the policy in justice’s court and upon appeal in the circuit court. Defendant brings the case to this court upon writ of error.

Error is assigned upon the refusal of the court to direct .a verdict in favor of defendant because the answers of the insured to the foregoing questions were untrue, and therefore constituted breaches of her warranties, which avoided the policy. It is contended that the proofs show conclusively that insured was not in good health, but had heart disease at the time she signed the application, and that she was not a housewife, but was by occupation a common prostitute. We think the court did not err in submitting to the jury the question whether the insured’s answers were true as to her health. The report of the examining physician was competent evidence upon this subject, and, if accepted by the jury, fully made out plaintiff’s case as to this point. Rhode v. Insurance Co., 129 Mich. 112, 132 Mich. 503. The report of the examining physician was strongly supported by the testimony of the mother and sisters of the insured and others as to her apparent health and vigor, the work she did, her dancing till 2 o’clock in the morning, and other conduct and actions inconsistent with the presence of chronic valvular disease ■of the heart.

The testimony of the physicians who treated insured was not, on the whole, of a character to inspire confidence. Two of them had made certificates of death to accompany proofs of loss in which they stated under oath that the duration of deceased’s disease was about three months. Although the blank upon which the certificates were made contained a notice that a false statement would constitute perjury, one of these physicians testified that he made a false statement as to the duration of her disease, because “ I knew she was insured and I tried to help her out.” It is not surprising that the jury was not convinced by the testimony of such a witness. So far as these physicians disclosed any information which they acquired in attending upon the insured as a patient, their testimony was clearly incompetent, although no objection seems to have been made upon this ground. Dick v. International Congress, 138 Mich. 372; Briesenmeister v. Supreme Lodge K. of P., 81 Mich. 525. Questions and answers in an application for insurance ought to be construed liberally in favor of the insured. Brown v. Insurance Co., 65 Mich. 306, 313. So construing the application, we think it was a question for the jury whether the insured was a housewife. The definition of housewife in the Century Dictionary is given as follows:

•j “ The mistress'of a family; the wife of a householder;, a female manager of domestic affairs.”

The same definition is given in Webster’s Unabridged Dictionary. The Standard Dictionary defines the word as follows:

“ The mistress of a household; a wife or woman who manages domestic affairs; housekeeper.”

The insured went further, however, and stated that she' had been engaged in no other occupation during the past two years.

We think it clearly appears from the testimony that the insured was keeping a house of ill fame, and that the court erred in submitting this question as an open question to the jury. There was no attempt to dispute the defendant’s proofs on this point, which were put in advance of plaintiff’s main case. It is inconceivable that the members of the family of the deceased should have taken the stand, and not one of them have denied such serious charges against her, if they were untrue. We do not think, however, that this conclusion ends the case. The defendant, through its agent, solicited this application. Mrs. Voakes did not go to them. They went to her and induced her to sign the application at this very house. After the policy had been issued by the company, its Michigan superintendent, according to the testimony of two witnesses, called at the house to collect the premium. He denies this; but it was for the jury to say where the truth lay. Police Sergeant Rutledge testified that the house was conspicuously a house of ill fame, and we think this record presents a fair question for the jury whether the defendant’s agent and superintendent were not aware of the character of the house and the nature of the business conducted there when they accepted the application and the premiums. If the jury should so find, the company could not rely upon a breach of warranty in this respect.

We also think that the court erred in charging the jury, in substance, that if deceased made the answers in good faith, believing them to be true, their verdict should be for the plaintiff. Good faith would not save the policy in this case. Unless the warranties were substantially true or their truth waived, the policy was void.

The judgment is reversed, and a new trial granted.

• Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Montgomery, J. Ostrander, J.

text:
    CLEVELAND-CLIFFS IRON CO. v. GAUTHIER.

    1' Boundaries — Fences—Estoppel.
    The owners of adjoining tracts of land sold them to complainant, knowing of his purpose to develop them as a single mine, and conveyed by metes and bounds according to a fence between them. Subsequently the vendors discovered by survey that the fence was not upon the true line, but made no claim to the omitted strip until after complainant had expended large sums upon the strip in developing his mine. The vendor, in possession of the strip up to the time of the conveyance, disclaimed ownership of it. Held, that the vendor, in whom the record title reposed, was estopped to deny that the fence marked the true boundary between the parcels.
    3. Same.
    Though it is true, as a general proposition, that title to land cannot be established by estoppel in this State, the location of a boundary line, not being supposed to affect title, may be so established.
    Appeal from Marquette; Stone, J.
    Submitted November 15, 1905.
    (Docket No. 135.)
    Decided March 5, 1906.
    Bill by the Cleveland-Cliffs Iron Company and George J. Maas against Maria P. Gauthier and others to quiet title to land. From a decree for complainants, defendants Gauthier appeal.
    Affirmed.

      William, P. Belden and Young & Bell {Hoyt, Dustin & Kelly, of counsel), for complainants.

      Ball & Ball, for appellants.

       Rehearing denied June 4, 1906.

   Montgomery, J.

This is a bill to reform deeds and to quiet title. Prior to March 1, 1901, the defendants designated in the record as the Gauthier heirs owned a tract of land of about 30 acres in Negaunee township, Marquette county. The defendants designated as the Barabe heirs owned about 54 acres next adjoining on the west. Complainant Maas had before this date been in negotiation for both tracts, as well as for land lying on either side, with a view to opening up an iron mine. To this end he secured options from both the Gauthiers and the Barabes, all of whom well understood his purpose to develop a single mine. In pursuance tc this option the parties deeded their respective properties by metes and bounds. Complainant Maas sold an interest to the co-complainant, and development and operation continued. At the time of these conveyances the Gauthiers, as well as the Barabes, understood that the descriptions employed in their respective deeds covered all the property owned by the respective sets of heirs. It also appears that a fence had existed for many years, — by the best testimony more than 40, — on a line which limited the holding of the Gauthier heirs to the 30 acres actually conveyed. By the death of Gauthier and the appointment of Barabe as his executor and guardian of the minor Gauthier heirs the running of the statute of limitations was interrupted. In the month •of April, 1902, one Cummings, a surveyor, surveyed this land and discovered that there was a gore-shaped strip between the lands conveyed by the Gauthiers and the Barabes, 100 feet at the larger end. Complainants had on purchase entered into possession and were at the time •engaged in putting down a shaft, which it happens was on this disputed strip. The Gauthiers gave no formal notice of their discovery until October, 1903. Some notice of the claim was, however, given to one Bell, the local attorney for the mining company, and to Maas, during the summer of 1902. The circuit judge granted the relief prayed, and the defendants the Gauthier heirs appeal.

As the Barabe heirs are parties, and as it is not only proved, but conceded on their behalf, that it was the intention to convey all land occupied by them, and as the fact was known to the Gauthier heirs, and as it was also known to them that the complainant intended to develop the two properties as one mine, and purchased the two tracts for that distinct purpose, it would seem that all the elements of an equitable estoppel are present, unless the defendants Gauthier can escape the consequences of their assent to this purchase on the ground that they were at the time ignorant of their ownership of the wedge-shaped strip. The fact that there had been occupancy up to the fence on either side for this long period, while strongly tending to show such an establishment of this fence as the boundary line and acquiescence therein, may indicate that the error in the description was not known at the time of the deal.

But the complainants’ case does not rest upon the facts as they appeared at that time. After the Gauthier heirs became aware that the fence was not on the true line, they permitted the complainants to proceed to expend a large sum of money in developing this mine. A large part of the amount being expended on this disputed strip. But absolute knowledge of their rights on the part of the Gauthier heirs was not essential. It was known to them that the complainants were buying this entire tract for a definite purpose as one entire tract, and that reliance was being placed upon this apparent boundary line. Under these circumstances it was their duty to ascertain their rights, if in doubt. The case is not in this respect different in equity than it would appear, had the Gauthier heirs attempted to sell the entire parcel, including the Barabe tract. It was known to them that the complainant was purchasing a connected tract, and that the purchase from them was dependent upon such greater purchase. The transaction was in effect one, and known to defendants Gauthier to be such. Under these circumstances they should be held estopped. Bigelow on Estoppel, p. 610; 1 Current Law, p. 350; 3 Current Law, p. 523; Thompson v. Borg, 90 Minn. 209; Rowell v. Weinemann, 119 Iowa, 256; Briscoe v. Puckett (Tex. Sup.), 12 S. W. 978; Spiller v. Scribner, 36 Vt. 245; Spears v. Walker, 1 Head (Tenn.), 166; Merriwether v. Larmon, 3 Sneed (Tenn.), 447; Halloran v. Whitcomb, 43 Vt. 306; 2 Pomeroy’s Equity Jurisprudence (3d Ed.), §§ 782, 818.

It is broadly contended on behalf of the Gauthiers that title to land cannot be established by estoppel in this State. This is true as a general proposition; but in the leading case of Hayes v. Livingston, 34 Mich. 384, it was pointed out that the establishment of a boundary line is not supposed to affect title. And the cases from Vermont and Tennessee above cited were referred to with approval. See, also, Reed v. Drake, 29 Mich. 222; Stewart v. Carleton, 31 Mich. 270; Mowers v. Evers, 117 Mich. 93.

The decree is affirmed, with the costs of both courts against the appealing defendants.

McAlvay, Grant, and Blair, JJ., concurred.

Ostrander, J.

(concurring). As I understand the position of appellants, it is in substance and effect that the triangular parcel of land in question is not described in the deed under which the Barabes held, nor in the deed under which they held, nor in the deed to complainants; that the reason for this is that in preparing the deed to the appellants in the Gauthier-Delorier partition or division of lands a mistake was made, the effect of which mistake was to fix the western boundary line east of the true western boundary of the land belonging to and attempted to be deeded to appellants; that if this mistake had not been made the deed to appellants would have included the land in question. This mistake has since been corrected by a court of equity, upon the application of appellants. Appellants sold to complainants with the mutual understanding that they owned and would convey the land directly east of and adjoining to the Barabe land, which would include the strip in question. That they did not in their deed correctly describe the land sold arose from the fact that the description in the Gauthier-Delorier deed was followed. As the matter stands in this court, there are no asserted rights to this strip of land intervening the Gauthier-Delorier deed and the decree in this cause. In my opinion, the facts asserted on the part of appellants entitle complainants to have the deed from appellants reformed. The bill prays for such relief, the decree does not in terms grant it, and complainants have not appealed.

I concur, therefore, in affirming the decree.


text:
    FRANCIS v. FRANCIS.
    1. Escrows — -Conditions—Performance—-Vesting op Title.
    Performance of the conditions upon which a deed is delivered in escrow vests title in the grantee.
    2. Same — Conditions—Ascertainment—Memorandum op Custodian.
    The memorandum made by the custodian of a deed placed in escrow is not conclusive of the terms upon which it was deposited.
    Appeal from. Bay; Shepard, J.
    Submitted January 5, 1906.
    (Docket No. 27.)
    Decided March 5, 1906.
    Bill by Hugh Francis against Edward Francis. to set aside a deed and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Isaac A. Gilbert, for complainant.

      Luther G. Beckwith, for defendant.
   Montgomery, J.

James Francis, of Bay county, Michigan, brother of the complainant and defendant, died February 12, 1901, intestate, leaving an estate of real and personal property of upwards of $5,000. His heirs at law were a widow, one sister and three brothers, viz., Della Francis, widow, Mary J. Bouchier, sister, Edward Francis, William Francis, and Hugh Francis, brothers. Included in his estate was a farm of 90 acres valued at from $4,000 to $4,500. After the death of James Francis, William Francis and Mary Bouchier conveyed their interest in the land to Edward Francis, and Della Francis,. the widow, conveyed her interest to Edward Francis and Hugh Francis jointly, thus leaving Hugh and Edward Francis the sole owners of the farm. An agreement was had by which Hugh Francis should convey his interest to Edward Francis for $400. A deed was executed at Bay City, Michigan, but not delivered; it was afterwards left as a deposit by Hugh Francis with a banker at Beese, Michigan, with the following indorsement made by Mr. Richardson, the banker and holder of the deed: “ To be recorded and delivered when Hugh Francis so advises.”

There is a dispute as to whether the defendant was entitled to deduct from the $400 consideration an amount which he had paid in excess of his share of the purchase of the other interests. There was also a sharp dispute as to the terms upon which the deposit of the deed with Richardson was made. The defendant claiming that he had fully performed the conditions upon which the deed was left in escrow brought replevin to recover the deed. Complainant thereupon filed this bill setting out that—

“ Soon thereafter negotiations were again had between said Edward Francis and your orator by which your orator did purchase from said Edward Francis a property known as the ‘Tuscany Farm,’ paying therefor the sum of $600 as follows: Four horses valued at $400, and $200 further to be allowed to said Edward Francis as part payment of the purchase price of the property mentioned and described in Exhibit A hereto annexed.”

Said Exhibit A being the deed from Hugh to Edward of all Hugh’s interest in the James Francis estate lands. The bill continues:

‘c The said deed, Exhibit A, to be deposited with one Fred J. Richardson, banker at Reese, to be kept by him and to be delivered to said Edward Francis when the balance due thereon was paid to your orator and a settlement of all matters was had between said Edward Francis and your orator.”

On a hearing the circuit judge found the facts as claimed by the defendant, and dismissed the bill of complaint.

If the deed was delivered in escrow, and the conditions upon which it was delivered fully performed, the title was vested in defendant. 11 Am. & Eng. Enc. Law (2d Ed.), p. 345. The memorandum made by the custodian is not conclusive of the terms upon which the deed was deposited. Skinner v. Kelley, 138 Mich. 134. Nor does the bill of complaint leave in doubt what the testimony makes still more clear, viz., that the deed was deposited with Richardson to be delivered to defendant upon the performance of some conditions. The circuit judge so found and was apparently convinced that the full consideration for the deed was paid by a conveyance of the Tuscany farm so called and by the check for $32, and that the only remaining condition — i. e., the release of complainant from a suretyship on a note of defendant — had been performed. This conclusion is justified by evidence of the most convincing character.

The decree is affirmed.

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


text:
    BAILEY v. BRIGGS.
    1. Intoxicating Liquors — Civil-Damage Act — Sale to Minor —Defenses.
    In an action against a druggist under the civil-damage act (5398, 2 Comp. Laws) for selling liquor to a minor, it is no defense that the minor presented a forged order from his parent, which defendant believed to be genuine.
    2. Same — Damages—Character of Minor — Previous IntoxicaTION.
    In these actions the jury may consider, upon the question of injury to the parent’s feelings, the fact that the minor had been in the habit of becoming intoxicated.
    3, Same — Action by Mother — Habits of Father.
    In an action by a mother for selling to her minor son, the habits of the father are not material.
    Error to Montcalm; Davis, J.
    Submitted January 5, 1906.
    (Docket No. 18.)
    Decided March 5, 1906.
    Case under the civil-damage act by Ella Bailey against Fred D. Briggs for the sale of intoxicating liquor to plaintiff’s son. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      C. L. & O. B. Barden and E. J. Bowman, for appellant.

      N. O. Griswold, for appellee.
   Montgomery, J.

This action was brought under the civil-damage act to recover damages resulting from a sale of a bottle of alcohol to her minor son causing intoxication. Defendant recovered. Plaintiff brings error.

The defendant was, on the 11th of February, 1901, engaged in the business of a druggist. It was proved on the trial and admitted by defendant’s witnesses that plaintiff’s minor son bought the alcohol in question and became intoxicated from drinking the same. The defense interposed was that the alcohol was delivered to the son on an order purporting to be signed by plaintiff but which was in fact a forgery. This order read: ■

“Mr. Briggs, is for medicine. Please send me one pint of alcohol. It
“Ella Bailey.”

The circuit judge was of the opinion that if the defendant’s servants in good faith sold this alcohol in the belief that the order was genuine, the defendant is not liable. The rulings which proceed upon this theory present the most important question in the case. The statute (% Comp. Laws, § 5398) provides:

“Every person who shall by himself, or by any clerk, servant, agent or employé, sell, give or furnish, or cause to be sold, given or furnished, any intoxicating, spirituous, malt, brewed or fermented liquors, cider or wine * * * to any minor * * * shall in addition to all other penalties provided therefor by this act, be liable for both actual and exemplary damages therefor, to the father, mother, * * * in such sum, not less than fifty dollars in each case, as the court or jury shall determine, except a druggist, upon the written request of a parent, guardian, or master of such minor, or upon the written prescription and request of a regular practicing physician.”

It is altogether clear that one who sells to a minor upon what purports to be, but what is not in fact, a written order of the parent, is not within the words of the exception. If the construction which the learned circuit judge gave to the statute be adopted it is obvious that we must extend the exception by implication and exclude recovery in this case as not authorized by the spirit of the act. We see no controlling reason for departing from the terms of the act. The entire act is in the nature of a police regulation; the section quoted being in part penal and in part remedial. It was designed to furnish absolute protection to the parents of minors. It has been held upon full consideration that a sale to a minor cannot be excused in a prosecution under the strictly penal provision of the act by showing a good faith belief that the minor was of full age. The fact that the minor stated to the druggist that he was more than 21 years of age afforded no defense. People v. Curtis, 129 Mich. 1. If we apply the same rule to this case the pertinency of the suggestion of plaintiff’s counsel is apparent. That suggestion is that in this case the false order was but a false statement of the boy reduced to writing. See, also, People v. Worden Grocer Co., 118 Mich. 604; People v. Roby, 52 Mich. 577; Com. v. Finnegan, 124 Mass. 324. The circuit judge was in error in sustaining the defense.

Complaint is made that the circuit judge allowed the. jury to consider the fact that this boy had, before the sale by defendant, been in the habit of getting intoxicated as bearing upon the amount of damages for injury to feelings. The court said in substance that the shock to plaintiff would not be so great in case the boy had to her knowledge been often intoxicated before, as it would be to discover the downfall of one previously sober and of perfectly correct habits. We have not quoted the language but given the effect of the charge. We think this instruction is warranted by the experience of mankind, and is the law. It is by no means true that previous lapses furnish a defense or an excuse for unlawful sales by defendant. But in measuring the injury to plaintiff’s feelings the previous habits of the minor must be an element to be considered. See, as bearing on the question, Johnson v. Schultz, 74 Mich. 75; Cramer v. Danielson, 99 Mich. 531; Ford v. Cheever, 105 Mich. 679. The cases of Steele v. Thompson, 42 Mich. 594, and Theisen v. Johns, 72 Mich. 293, presented a different question. In each of those cases it was sought to relieve the defendant in part by showing that others concurrently sold liquor to the husband. As the statute made each seller who caused or contributed to the sale responsible for all the consequences, it was held that such fact if proved in no way relieved the defendant. The habits of the father were not material. The other questions raised are not likely to arise on a new trial.

For the error pointed out, the judgment is reversed, and a new trial ordered.

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


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    AVERILL v. BENZIE COUNTY STATE SAVINGS BANK.
    Homestead — Exemption—Setting Aside.
    Where an execution debtor occupies, as a homestead, three village lots in one inclosure, a case is presented calling for proceedings under sections 10364-10366, 3 Comp. Laws, and a ' levy and sale of the two lots not occupied by the house are unauthorized.
    Appeal from Benzie; Chittenden, J.
    Submitted February 9, 1906.
    (Docket No. 127.)
    Decided March 5, 1906.
    Bill by Lorenzo Averill and Cynthia Averill against the Benzie County State Savings Bank and others to set aside an execution levy and sale. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainant.

      Smurthwaite & Alway, for complainants.

      D. G. F. Warner, for defendants.
   Montgomery, J.

This is a bill filed to set aside a levy and sale of two lots in the village of Frankfort, which are claimed to constitute a part of complainants’ homestead. Complainant Lorenzo Averill owned and occupied lots 1, 2, and 3 of block 13. The lots are all in one inclosure; the house being on lot 2, and the barn and chicken coop on lot 3. Complainants occupied the premises when the levy was made. The value of lot 2 was probably not in excess of $1,400.

The single question is whether the lots should have been treated as one by the sheriff, and proceedings taken under sections 10364-10366, 3 Comp. Laws. We think this was complainants’ right. Geiges v. Greiner, 68 Mich. 153; King v. Welborn, 83 Mich. 195 (9 L. R. A. 803); Lamont v. Le Fevre, 96 Mich. 175.

The decree is reversed, and a decree will be entered in this court for complainants, with costs of both courts.

McAlvay, Blair, Ostrander, and Hooker, JJ., concurred.


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    PEOPLE v. SAUER.
    1. Homicide — Instructions — Presentation of Defendant’s Theory.
    On the trial of an information for murder in killing an officer acting under a writ of replevin, in which respondent claims that the gun was discharged unintentionally while he was trying to frighten deceased off the premises, and .when deceased was not acting under the writ, an instruction that the pointing of a gun in the air is not an unlawful act, and that defendant had a right to take a gun into the field and point it in the air, if he did not do so for the purpose of obstructing or resisting the officer, and that the discharging of the gun was not unlawful, unless done for the same purpose, or used in such a manner as to amount to a disregard for human life, is sufficiently favorable to defendant under his theory of the case.
    2. Same — Evidence—Presumptions.
    Where, in a prosecution for the murder of a constable who came to respondent’s premises to execute a writ of replevin, it appears from respondent’s own testimony that the writ existed, it is presumable that deceased was acting lawfully, though the writ is not introduced in evidence.
    Exceptions before judgment from St. Clair; Law, J.
    Submitted February 15, 1906.
    (Docket No. 217.)
    Decided March 5, 1906.
    William Sauer was convicted of manslaughter.
    Affirmed.

      Joseph Walsh, for appellant.

      Alex. Moore, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of manslaughter and asks for a reversal on the ground of error in the charge of the court. The facts, briefly stated, are that the respondent was living at home with his father, mother, and two brothers on a farm on St. Clair Flats. A quantity of logs had drifted upon the land of the elder Sauer. One Chris. Smith claimed title to the logs and sent out a writ of replevin for 16 of them. Accompanied by an officer, Constable Moore, he went to the premises. Some of-the logs were found in what is called the lower field. After some parley, respondent consented that these be taken. Smith, the constable, and the teamsters then started for the upper field. The defendant warned them off, and, when they persisted, came into the field with a loaded gun. The gun was discharged, killing Constable Moore instantly. The jury must have found that the gun was discharged accidentally, and while the respondent, not intentionally pointing the gun at Moore, was engaged in the attempt to frighten the parties away. The respondent claimed in his testimony that, when the parties were in the lower, field, Smith stated that the logs there were those which the writ called for, and it was contended that, as this was so, the .writ had spent its force, and that, when the parties were in the upper field, the constable had no greater right than a private person. It seems not to have been disputed that the writ called for 16 logs. Nor was it disputed that less than 16 logs were taken in the lower field. The respondent appears to have taken no means of ascertaining from Constable Moore his intentions or purposes, but does claim that Smith was basing his demand for the logs in the upper field on his ownership rather than asserting any right under the writ.

The circuit judge charged the jury as follows:

“ I instruct you that the pointing of a gun in the air is not an unlawful act, and I charge you that the respondent would have the right to take a gun out into the field to the east of the house and to point the same in the air, so long as in doing so he did not take it there for the purpose of obstructing or resisting the officer, Elisha Moore, and did not use it for that purpose. I instruct you that the discharging of the gun, by respondent, in the air, is not an unlawful act, and I charge you that the respondent would have the right to take the gun out into the field east of the house and discharge the same in the air, so long as by doing so he did not take it there for the purpose of obstructing or resisting the officer, Elisha Moore, and did not use it for that purpose and did not use it in such manner as to amount to a reckless disregard of human life by so using it. The respondent, under the law, had a right to take the gun with him into the field where the shooting occurred, so long as by so doing he did not take it there for the purpose of obstructing and resisting the officer, Elisha Moore, and did not use it- for that purpose, and to carry said gun in his hands and to point the same in the air, so long as he did not have the gun there for the purpose of obstructing the officer or resisting the officer, but he would not have the right to knowingly point said gun in the direction of any person.”

We think this charge sufficiently recognized the defendant’s theory in so far as it was entitled to consideration. The writ was still in the officer’s hands, and, whatever may have occurred in the lower field, so long as the logs called for had not in fact been secured, the writ had not spent its force. If, however, the jury were satisfied that the officer was not, at the time he was shot down, acting under the writ, the charge fully protected the rights of the accused.

It is said the writ was not introduced in evidence. It appears by respondent’s own testimony that such a writ existed, and the presumption is that the officer was acting lawfully. Love v. Wood, 55 Mich. 451.

The conviction is affirmed.

McAlvay, Grant, Blair, and Moore, JJ., concurred.


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    WELEVER v. AUDITOR GENERAL.
    Taxation — Tax Sale — Setting Aside — County Treasurer’s Certificate.
    A landowner is not entitled to have a tax sale set aside because, at the time of his purchase, he obtained a certificate from the county treasurer, under section 3957, 1 Comp. Laws, that the taxes had been paid, and that no tax liens existed for the previous five years, the sale being for a tax accruing more than five years prior to the date of the certificate, since the certificate only purports to cover the five years preceding its date.
    Mandamus by Mary A. Welever to compel James B. Bradley, auditor general, to set aside a sale of land for taxes.
    Submitted January 2, 1906.
    (Calendar No. 21,066.)
    Writ denied March 5, 1906.

      George M. London, for relator.

      John E. Bird, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for respondent.
   Montgomery, J.

This is an application for mandamus to compel respondent to set aside a sale of land for taxes. The sale was made in 1892 for the taxes of 1889. Redemption expired in May, 1893. The lands continued State tax land until August 20, 1904, when they were sold to Archie T. Miller and a deed given. A notice was given to relator under section 140 of the tax law (1 Comp. Laws, § 3959) requiring the relator as original owner to repurchase within six months, or be barred from thereafter claiming title. After the lapse of six months the' relator applied to the auditor general to set aside the sale and permit a payment of the taxes. The petition set out that relator became the owner of the original title in November, 1901, and that she obtained a certificate from the county treasurer stating as follows:

“ I have examined the tax records in my office and find that the taxes assessed upon the lands described in the annexed list have been paid and that it does not appear from said records that either the State of Michigan or any individual holds any tax deed or lien upon said premises for the five years preceding its date.”

This certificate was given under section 135 of the tax law. Section 3957, 1 Comp. Laws.

It is claimed by the relator that, as the original owner might then have bought of the State, and as such purchase would as to him amount to payment, that she is entitled to have respondent take action under subdivision 4 of section 98 (1 Comp. Laws, § 3921), which authorizes the auditor general to set aside a sale when it appears that a certificate that no taxes were charged against said lands has been given by the proper officer .within the time fixed by law for the payment or redemption thereof.

Respondent contends that the certificate under section 135 is only required to cover the five years preceding its date, and that no one has the right to rely upon it for information as to liens for previous years. The case of Van Husan v. Heames, 96 Mich. 504, is cited in support of this contention. The case does not fully support this contention, and we find it unnecessary to decide what might be the effect had the certificate in this case shown that no liens existed. The certificate appears oñ its face to be limited as to this certification to the preceding five years. We are not able to see, therefore, how relator was entitled to rely upon the certificate as evidence of a clear title for a prior period. The case seems in some respects a hard one, but we find ourselves powerless to relieve relator.

Writ denied.

Carpenter, C. J.,. and Ostrander, Hooker, and' Moore, JJ., concurred.


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    JOHNSON v. COMMON COUNCIL OF THE CITY OF BESSEMER.
    1. Intoxicating Liquors — Regulation of Traffic — Municipal Corporations — Saloon Limits.
    Cities of the fourth class have power by ordinance to establish saloon limits and provide that no license shall be granted except within those limits.
    2. Same — Validity of Ordinance — Penalty.
    Such an ordinance, being enforceable by the council by refusal to approve an applicant’s bond, is not void because not providing a penalty, it being self executing to the extent of authorizing the council to refuse to approve the bond.
    3. Municipal Corporations — Ordinances—Validity—Ordinance Valid in Part.
    An ordinance may be valid in part, though invalid in some of its provisions.
    4. Same — Self-Executing Provisions.
    Where an ordinance, as to some of its provisions, is self executing, it is as to such provisions valid, though it has affixed an invalid penalty or no penalty at all.
    Mandamus by Adolph Johnson to compel the common council of the city of Bessemer to approve a liquor bond.
    Submitted January 30, 1906.
    (Calendar No. 21,375.)
    "Writ denied March 5, 1906.

      FrankF. Kutts and Levi S. Rice (William W. Taylor, of counsel), for relator.

      Conrad Carlson (Herb M. Norris, of counsel), for respondent.
   Montgomery, J.

Mandamus is sought to require the respondent to approve a liquor bond presented to respondent by relator. Approval was refused upon the ground that by an ordinance of the city the relator had no right to engage in the business contemplated at the place named in the bond. But two questions require consideration : First, whether the charter of the city authorized the common council to restrict the saloon business to a particular locality; second, whether such restriction has been provided by a valid ordinance.'

Subdivision 14 of chapter 11 of the act for the incorporation of cities of the fourth class, being 1 Comp. Laws, § 3107, authorizes the city to regulate and prescribe by ordinance the location of saloons. Acting under this authority, the common council enacted an ordinance which established saloon limits, and providing that no license should be granted except within those limits. We think •the case of Sherlock v. Stuart, 96 Mich. 193 (21 L. R. A. 580), is decisive that the authority of the charter was sufficient to authorize such an ordinance.

Was the ordinance wholly void because no penalty* was provided for its enforcement. The common council is vested with the power of approving the bonds of dealers in intoxicating liquor. Such bonds are required to state the location at which the business is to be carried on, and the general statute provides punishment for one who engages in business without filing a bond thus approved with the county treasurer. It is plain, therefore, that the execution of this ordinance and its enforcement without provision for penalty rested with the common council. Reference is given by relator’s counsel to cases like Bowman v. St. John, 43 Ill. 337, where an ordinance has been held ineffective for want of a penal clause. Such cases, so far as they have fallen under our notice, are cases in which the attempt has been made to prosecute for a. penalty not prescribed. On the contrary, it has been held in many. cases that an ordinance may be valid in part, although invalid as to some of its provisions. People v. Armstrong, 73 Mich. 288 (2 L. R. A. 721). So, where an ordinance as to some of its provisions is self executing, it is as to such provisions valid, though it has affixed an invalid penalty or no penalty at all. Magneau v. City of Fremont, 30 Neb. 843 (9 L. R. A. 786); City of Detroit v. Railway Co., 95 Mich. 461 (20 L. R. A. 79). To the extent of authorizing the council to refuse to approve the bond in question this ordinance was self executing.

Writ denied.

Carpenter, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.