text:
    HARRISON v. EASSOM.
    1. Frauds, Statute of — Oral Lease for More Than One Year Void.
    Under the statute of frauds (3 Comp Laws 1915, § 11981), an oral lease of lands could not extend beyond one year.
    2. Same — Oral Contract for Conveyance of Land Void.
    An oral agreement for the conveyance of land is void under the statute of frauds (3 Comp. Laws 1915, § 11981).
    3. Same — Validated by Part Performance.
    A void contract for tfyp sale of lands is sometimes said to be made valid by attts in part performance.
    4. Specific Performance — Not a Matter of Right but in Discretion of Court.
    Specific performance of a contract, whether written or oral, is not a matter of strict legal right, but rests in the sound discretion of the court.
    5. Same — Oral Contract for Conveyance of Land — Part Performance — Equity—Fraud.
    In proceedings for the specific performance of an oral contract for the conveyance of land, the acts of part performance by plaintiffs, permitted by defendant as though accepting the void contract as valid, must be to an extent and of a kind to create such strong equities in plaintiffs’ favor that courts of equity should not permit the statute of frauds to be used as an instrument of fraud.
    6. Evidence — Conclusion.
    Plaintiffs’ assertion that they took exclusive possession as owners of a strip of land is but a conclusion not borne out by their own testimony, which shows that they took it with other land under an oral lease.
    7. Frauds, Statute of — Estates—Oral Contract as to Land— Possession.
    Where plaintiffs and defendant orally agreed to work certain land together, including eight acres which was to go to plaintiffs, selection of which had not yet been made, their possession was concurrent, and plaintiffs could not acquire a new or different estate under an oral contract to work all the land and give defendant a share.

      S. Same — Specific Performance — Part Performance of Oral Contract — Possession.
    Taking possession under an oral contract must, to become an element of part performance, be exclusive, open, and notorious, under a claim of ownership.
    9. Same — Oral Contract to Convey — Landlord and Tenant— Part Performance.
    Where plaintiffs went into possession of land as defendant’s tenants, and continued in unbroken possession from the time of entry without having surrendered possession, merely continuing their possession under a different claim of ri'Sht than the tenancy under which they were let in could not in itself constitute an act of part performance of an oral contract to convey.
    10. Same — Evidence—Materiality.
    In proceedings for the specific performance of an oral contract to convey a strip of land, while an oral lease involving the premises in dispute, and as to the amount plaintiffs owed defendant thereunder, were not directly in issue, evidence in relation thereto was competent for whatever light it might throw upon the nature of plaintiffs’ possession and the termination of the lease.
    11. Same — Part Performance — Evidence—Sufficiency.
    The conclusion of the court below that, under the circumstances disclosed, the occupancy shown prior to the commencement of this suit "cannot be said to be actual, open, notorious, hostile, or adverse possession of any part of the land,” entitling plaintiffs to specific performance of an oral contract to convey, held, sustained by the record.
    Appeal from Kalamazoo; Weimer (George V.), J.
    Submitted October 17, 1919.
    (Docket No. 83.)
    Decided February 27, 1920.
    Bill by Alonzo D. Harrison and another against Mary Eassom for the specific performance of a land contract. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Lincoln H. Titus, for plaintiffs.

      Alfred S. Frost, for defendant.
   Steere, J.

Plaintiffs seek by bill for specific performance to compel defendant to deed to them an 8-acre parcel of land near the city of Kalamazoo in the southwest quarter of the northeast quarter of section 7, town 3 south, of range 12 west, Texas township, Kalamazoo county, specifically described as “the south 8 acres of the north half of the southwest quarter of the northeast quarter of section 7,” in said town and range.

Defendant at one time owned the entire south half of the northeast quarter of said section 7 and resided upon the same for some nine years, the house, barn, outbuildings, etc., being situated upon the northwest comer of the 80 acres. She thereafter sold the west 40 acres upon which was the residence and buildings, retaining the east 40 acres. At the time of the transactions involved in this litigation a man by the name of Garwood owned the west 40 acres upon which there was a mortgage of $550.

Prior to May 2, 1917, defendant owned a house and lot in the city of Kalamazoo valued at $2,300 upon which there was a mortgage of $950, and plaintiffs, with whom she was then on friendly terms, owned a house and lot in Kalamazoo known as Terrace Place which they valued at $2,400, upon which there was a mortgage of $800. Defendant learned that Gar-wood was de'sirous of selling his 40 acres or exchanging it for city property and had placed it in the hands of a real estate agent in Kalamazoo for that purpose. She was desirous of exchanging her house and lot in Kalamazoo for a part of the Garwood 40 acres where the buildings were. He wanted to dispose of the entire 40 in which his equity greatly exceeded the equity in her city property. She discussed the matter with plaintiffs who became interested and negotiations followed looking to their joining the equity in their city property with hers and exchanging the two for the Garwood property, plaintiffs to pay the incumbrance on the entire 40 acres; she was to take 12 acres located in the northwest corner where the buildings were, as she was desirous of securing her former home, and they were to have 28 acres in all, consisting of the south half of the 40 acres, and an additional 8 acres to be selected by them from specified adjacent locations, either in the Garwood 40 or in her 40 acres joining it on the east. All parties are in harmony as to their understanding up to that point.

The disagreement out of which this litigation arises is over the location of the 8 acres. Defendant contends it was agreed plaintiffs might have their choice of two 8-acre parcels — one immediately to the east and at the rear of their south half of the Garwood 40, in the land belonging to her, or an 8 acres from the north half of the Garwood 40 at the rear and east of her 12 acres. Plaintiffs contend that they were to have their choice of three 8-acre tracts — including the two which she concedes, and also an 8-acre strip along the south side of the north half of the Garwood 40, which they subsequently selected and she refused to convey toi them.

It was also the understanding between the parties to this suit that after the deal was consummated with Garwood they would take possession of the premises, occupying the buildings belonging to defendant, and plaintiff Alonzo Harrison should run the 80-acre farm, working defendant’s portion on shares. Having reached an agreement with Garwood on May 2, 1917, they all went to the office of an attorney and had conveyances made for the exchange. Plaintiffs and defendant deeded to Garwood their city properties subject to the incumbrances upon them and he deeded his 40 to them as they directed, before they separated. They apparently had no difficulty in agreeing that plaintiffs should have the south half of the 40 acres, between which and the north half an easement for an unopened highway had been granted some years previously in an abortive project for platting, but they failed to reach an exact understanding as to the additional 8 acres plaintiffs were to have. After a protracted discussion without reaching any definite conclusion, which continued until Garwood grew tired of waiting, they accepted his suggestion that he deed defendant the north half and plaintiffs the south half of his 40 acres, and after they had gone out there plaintiffs make their selection from one of the descriptions which had been proposed. They authorized' him to convey the 40 to them as he suggested with the understanding between themselves that plaintiffs could make their selection from certain descriptions after they moved upon the farm, whether with a choice of two or three descriptions is in dispute.

Soon after the deal with Garwood was closed plaintiffs and defendant moved upon the premises, under an oral agreement by which Harrison was to have a five years’ lease from her. He testified that he went into possession of the whole place at that time and worked the whole 80 acres for a year. They are not in harmony as to many of the terms of this oral lease but agree that he was to occupy the premises as a tenant and work her land on shares. His general statement of the understanding is: “We were both to work the place together and each have one-half, except my rye and corn on the 20.” She was to assist Harrison financially in getting a team, seed and other essentials for operating the farm, which she did as he testifies, and was to have quarters in the house. She lived there for several months, at times assisting him at outdoor work upon the land, but trouble soon developed between her and plaintiffs, both indoors and out, which grew more acute as time went on, and early in the fall she resumed her residence in the city. In March of the following spring she served a formal notice on plaintiffs as her tenants to quit and surrender up to her possession of the premises, defined by .a legal description of the 80-acre farm. They left the place in May, at the end of a year’s occupancy, and have resided elsewhere since that time.

These parties never had any written agreement between them in relation to this farm, and are now at variance as to material parts of their oral agreements. Plaintiffs' oral lease of the premises could not extend beyond one year, and their oral agreement- as to the 8 acres in dispute, specific performance of which is sought to be enforced, was void under the statute of frauds (3 Comp. Laws 1915, § 11981) unless validated by subsequent part performance, as to which the burden of proof rested upon plaintiffs. Finding that they had failed in that particular the trial court dismissed plaintiffs’ bill.

It appears quite clearly that failure of these parties to arrive at an agreement as to the exact location of the 8 acres at the time Garwood deeded his 40 acres to them resulted from defendant’s objection to plaintiffs having the strip they now claim, which would take about 25 trees of her apple orchard and shut her off from the dedicated but unopened highway between the north and south halves of the 40 acres. Harrison expressed a preference for this, while she wanted him to take the 8 acres off the east end of the north 20 acres, leaving her the west 12 acres, or 8 acres from the south half of her own 40 acres adjoining his 20 on the east. At that time they were friendly and ostensibly considerate of each other, as Garwood’s testimony indicates. He states that when she proposed the east end of the north 20 acres Harrison said it would hardly be fair to her as it would shut her off from her back 40, and when he proposed the strip along the south side of the north 20 acres she protested it would not be fair to him because it would put all the road on his land.

Defendant testified that she did not consent to the 8 acres in question being one of those from which selection could be made and plaintiffs that she did. Garwood testified he thought both agreed to his proposal that the deferred selection could be made out of the three pieces which had been discussed, saying, “That is the way it looked.” Of this issue the trial court said:

“I am satisfied that the plaintiffs understood they were to be permitted to choose from three parcels. Whether or not defendant so understood the bargain, I am unable to say.”

But assuming that their minds did meet upon the proposition as contended by plaintiffs, the court found they had shown no such possession and part performance as would validate their oral contract and entitle them to a decree in a court of equity for specific oerformance.

Specific performance of a contract whether written or oral is not a matter of strict legal right but rests in the sound discretion of the court. Upon the subject of compelling performance of an oral contract for sale of land, it was said by Chief Justice Cooley in Dickinson v. Wright, 56 Mich. 42:

“A void contract for the sale of lands is sometimes said to be made valid by acts in part performance: Davis v. Strobridge, 44 Mich. 157; but by this is commonly only meant that one party by suffering the other to take action under and in reliance upon it as if it were valid, without notifying him of any purpose to insist upon its invalidity, thereby establishes against [himself] certain equities in respect to the contract which may be so strong in some cases as to justify a court of equity in enforcing it against him specifically, as if it were and had been from the first without defect.”

In other words, the acts of part performance by plaintiffs, permitted, by defendant as though accepting the void contract as valid, must be to an extent and of a kind to create such strong equities in plaintiffs’ favor that the court is moved to decree enforcement under the principle that courts of equity should not permit the statute of frauds to be used as an instrument of fraud. In this case, when Harrison shortly after taking possession of the premises as her tenant first advised defendant of his intention to select the 8 acres, in question she at once objected and made known her attitude as to it. He was not deceived or misled into making valuable improvements upon it in reliance on her recognition of the contract or of his claimed selection under it. He in fact made no improvements on the 8 acres. It was farm land, in no way set apart from or treated differently than the rest of the land to which she held title. Beyond the fact it was cleared land there were no improvements on it except a small portion of the southern edge of her orchard near the farm house. While on the place he worked the 8 acres the same as the rest of her holding and divided what it produced with her. His assertion that he then took exclusive possession of it as owner is in the nature of a conclusion, and not borne out by his own testimony as to the situation. He testified of his tenancy in part as follows:

“I went into possession of the whole place in May, 1917, and I worked it for a year until I was ordered O íf H* $ ‡
“Q. You worked that whole 80 acres last year? •
“A. Yes, sir.
“Q. The same arrangement applied to the whole farm?
“A. Yes, sir. It didn’t apply on mine where I had corn and rye in.
“Q. That was on your 20 ?
t4.iYes, sir.”

When defendant by consent of all parties took title to the north 20 acres the right to possession of it went to her with the deed she received. Plaintiffs then concededly have not exercised the selection they now claim and were let into possession as her tenants under an oral lease good for one year only as the statute expressly provides. Accepting Harrison’s testimony that they were to work the place together and each have one-half, their possession and hers were concurrent and theirs could not while such relation existed indicate a new or different estate. Taking possession under an oral contract must, to become an element of part performance, be exclusive, open and notorious, under a claim of ownership. The mere continuance of their former possession, if exclusive, under a different claim of title or right than the tenancy under which they were let into possession could not constitute part performance of an oral contract for the purchase of land. These principles as applied to specific performance of an oral contract for sale of real estate are too well settled to demand citation of authority.

Plaintiffs’ bill to enforce specific performance was filed April 13, 1918. Harrison testified that he went into possession of the whole place in May, 1917, working it for a year on shares, except the south 20 acres which he owned, and being notified to quit went off the place in May, 1918. He had then made no improvements on this 8 acres, had not paid or taken care of the mortgage according to the conceded terms of his oral contract and had worked it on shares, attorning to defendant as her tenant by accounting to her for half of what it produced. In May, after he had begun this suit, Harrison returned to the place and says of the 8 acres, “this year (1918) I worked that the same as I did mine, it all came together.” In that connection he testified to continuous possession under claim of ownership from the time he selected the 8 acres the year previous. It is pointed out that defendant also testified that after they moved off the place “they still held possession of 8 acres.” She also testified that when he came back and went to plowing that land she forbid him doing so, which he denies, with the explanation that he was then plowing on his own 20 acres. Be that as it may, this suit had then been begun and accepting as the testimony of both parties that plaintiffs had continued in unbroken possession of the 8 acres from the time of their first entry as her tenants without having surrendered possession to her, merely continuing their former possession under a different claim of right than the tenancy under which they were let into possession, such continued possession could not in itself constitute an act of part performance.

These parties not only left all their agreements and understandings in regard to the related land deal and lease to rest in parol and are now at hostile variance in certain particulars as to their terms, but in what they subsequently did and said they have so scrambled the whole matter that at the trial the exact line of competent testimony on the issue of specific performance was found by the court to be somewhat obscured under the pleadings which had been filed. Plaintiffs’ bill of complaint tells the story as claimed by them including the oral agreement for a five-year lease which they entered upon but were prevented from fully carrying out by her repudiating it and serving notice upon them to quit and surrender up the premises they then occupied, alleging, however, in a separate paragraph that they took possession of the described 8 acres in dispute on May 15, 1917, after notifying defendant of their selection “and have retained actual, open, notorious, hostile and adverse possession thereof since that date.”

Defendant’s answer traverses plaintiffs’ bill paragraph by paragraph according to the approved method of such pleading, admitting, denying and giving her version of the various statements they contain. She denies plaintiffs’ allegation of possession of the 8 acres, except such as they took as her tenants; denies any agreement that plaintiffs could select and have this 8 acres, but ratifies in her signed bill the oral agreement as she claims it, entitling them to selection of 8 acres from the other two descriptions, which agreement she is ready and willing to carry out “to the letter”; denies that she ever repudiated the lease as described by plaintiffs, and states she served notice upon them to quit the premises because they failed to fulfill its terms on their part to her great damage, stating some of the particulars in which she claims they failed and she was damaged thereby.

Plaintiffs made general proof of the lease and occupancy under it in harmony with the allegations in the bill, which their counsel stated was to historically advise the court of how they “came to be upon the 52 acres belonging to defendant, working the same on shares.” When counsel for defendant on cross-examination of Harrison sought to pursue the subject of the lease farther and show what the agreement was, plaintiffs’ counsel objected to that line of evidence as incompetent, had no bearing on the issue they were trying, no relief in that particular being asked and the answer not being in the nature of a cross-bill. On the theory it “may be pertinent to the occupancy of the land,” the court allowed the subject of the lease to be gone into at some length but sustained plaintiffs’ objections to defendant’s broad contention that the chancery court having acquired jurisdiction all issues arising out of the whole transaction should be fully gone into and decided. Amongst other things, defendant was allowed to show against objection that Harrison was considerably indebted to her in matters arising out of or relating to the lease. This the court .conceded, when plaintiffs’ counsel objected, was not an issue between the parties under the pleadings but, remarking that it was a chancery case, admitted the testimony “for the purpose of making up a record.” To just what extent that matter and some other details shown relating to the lease were proper evidence is perhaps debatable. Plaintiffs’ counsel further urge in effect, as we understand it, that the whole line of inquiry into the nature of the lease and what was done under it was improper and should be rejected by this court in trying the case de novo. It is true the lease is not directly in issue, nor are the pleadings directed to an accounting between the parties. We think, however, that the admitted testimony has some bearing upon the nature of plaintiffs’ possession and on defendant’s denial of plaintiffs’ charge that she had repudiated the lease without cause. In that aspect and for whatever light it might throw on those questions it was competent; beyond that, issues arising out of the lease itself will be passed without prejudice as outside the pleadings and left undecided.

This record well sustains the conclusion of the trial court that under the circumstances disclosed the occupancy shown prior to commencement of this suit “cannot be said to be actual, open, notorious, hostile or adverse possession of any part of the land.”

The decree is affirmed, with costs to defendant.

Moore, C. J., and Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

Justice Kuhn took no part in this decision.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    PARKS v. SHERMAN.
    1. Mortgages — Trust Deed as Security eor Loan Never Made— Validity.
    Where a trust deed was executed as security for a loan at a bank, and the bank refused the loan, the deed never took effect, and its assignment by the trustee was without consideration.
    2. Subrogation — Not Available to Volunteer.
    A principle which lies at the bottom of the doctrine of subrogation is that the person seeking it must have paid the debt under grave necessity to save himself a loss; the right never being accorded to a volunteer.
    3. Same-Volunteer.
    Where plaintiff volunteered to pay the debt of a lodge to relieve a member who was holden therefor, expecting that a note signed by several members and secured by a trust deed given by defendant would be accepted by the bank next day, and the money repaid him, but the bank refused to make the loan and the money was never repaid, held, that plaintiff had no right of subrogation to the trust deed, since neither plaintiff nor defendant were under obligation to pay the debt, and plaintiff was merely a volunteer.
    4. Frauds, Statute or — Oral Promise to Pay Debt or Another.
    An oral promise by defendant to plaintiff, made some time afterwards, to reimburse him for money voluntarily paid for the debt of another, held, without consideration and void.
    5. Subrogation — Legal and Equitable Rights or Others.
    Since equity follows the law, the equitable doctrine of subrogation must be applied with due regard to both the legal and equitable rights of others.
    Appeal from Berrien; White (Charles E.), J.
    Submitted October 17, 1919.
    (Docket No. 65.)
    Decided February 27, 1920.

      Bill by William T. Parks against Arthur Sherman for subrogation to rights under a trust deed. From a decree for plaintiff, defendant appeals.
    Reversed, and bill dismissed.

      Cady & Andrews, for plaintiff.

      O’Hara & O’Hara, for defendant.
   Steere, J.

This litigation had its origin in the financial delinquences of a fraternal organization which at one time existed in the city of Benton Harbor known as the “Loyal Order of Moose, Lodge No. 879,” which went out of existence with its debts unpaid some time prior to the commencement of this suit. Amongst its former active members were plaintiff Parks, defendant Sherman, Charles K. Farmer, A. J. Glennan, H. U. Rapp, and W. E. Marsh who was cashier of the Farmers & Merchants’ National Bank of Benton Harbor. Marsh had upon his own responsibility, without submitting the application to the loan committee of his bank, lent the lodge money from the bank’s funds. A loan of $1,000 which he made to the lodge on June 15, 1915, was not paid when due. It was evidenced by two notes of that date to the bank for $500 each due in six months with interest at 7%, signed by Charles K. Farmer and A. J. Glennan as a board of trustees of said lodge. When they fell due, on December 15, 1915, the lodge defaulted in payment. The officers of the bank notified Marsh that if this unauthorized loan made by him was not paid by December 31, 1915, the amount would be charged up to him and he would be held personally responsible for the same. He was not in financial condition to care for the notes as demanded by the bank and appealed to fellow-members of the lodge to help him out. Farmer, who as a trustee of the lodge had signed the note, called several meetings of certain members of the order for the purpose of devising some means of taking care of the paper. Plaintiff attended five of them and defendant two or more. Negotiations were had with the cashier of another bank in Benton Harbor for a loan of $1,000 with which to pay the past due notes which Marsh’s bank held him responsible for. The following note which they supposed would be accepted was prepared and signed for that purpose:

“$1,000.
“Benton Harbor, Michigan, December 31, 1915.
“Sixty days after date, I promise to pay to the order of Benton Harbor State Bank $1,000 (one thousand and no/100 dollars) at Benton Harbor State Bank. Value received. With interest at 7% per annum.
“Charles K. Farmer,
“W. T. Parks,
“W. E. Marsh,
“A. J. Glennan,
“H. U. Rapp,
“Arthur Sherman.”

Endorsed on back:

“Protest waived. Loyal Order of Moose Lodge No. 879. Charles K. Farmer, A. J. Glennan, trustees.”

The cashier of the Benton Harbor State Bank had, on December 31, assured members of the lodge who made application for the loan that they could borrow the money on this note, but with the qualification that their application had to be taken up by him with the loan committee of the bank at its meeting after closing hours that afternoon. The loan committee, however, disapproved the loan and refused to accept the note. Plaintiff was with Marsh and others in Farmer’s office on December 31st, when it was expected the new loan would be consummated, and testified that some members, he did not recall who, went down with the note to the Benton Harbor State Bank to get the money for the purpose of taking it over to the National Bank of which Marsh was cashier, and there paying the $1,000 evidenced by the past due lodge notes which he had accepted without authority; that “when they came back they informed Mr. Marsh and the rest of us they could not get the money until the next day at five o’clock”; and “Mr. Marsh almost fainted in his chair there,” saying “that money has got to be taken up before 4 o’clock.” Plaintiff thereupon, without solicitation of any one so far as shown, went to the National Bank that afternoon and paid up the past due notes over which the trouble had arisen. Of his reason for so doing he says, after telling of Marsh’s manifestations of distress:

“That is what gave me the motive for going and taking it up myself, to relieve the strain on Marsh’s mind at that time. * * * I took some securities I had, borrowed a thousand dollars and went to the bank and took up the notes under a promise of getting the money from the other bank the next day. That is the reason I paid the notes.”

Who then made that promise plaintiff does not disclose. It concededly was not defendant, who was not present and knew nothing of the refusal of the State Bank to approve the loan and accept their note until some time later.

On the date of this rejected note defendant Sherman and his. wife executed an instrument called a trust deed to Hi. U. Rapp covering property described as the north 31 feet of lot 2, block F, Webb’s addition to the city of Benton Harbor, and a chattel mortgage for $1,000 covering the regalia, furniture and other personal property of Lodge No. 879, Loyal Order of Moose, was given Sherman, signed by Farmer, Glen-nan and Marsh as “trustees,” by what authority is not made plain.

The so-called trust deed to Rapp was destroyed in a fire which burned up his store. Secondary evidence was given of its contents and purpose. Sherman testitled that the property it covered was worth $2,300 upon which there was a mortgage of $1,100; that at a meeting called to discuss ways and means to take care of this past due indebtedness Parks announced the State Bank would take a note signed as proposed with some additional security, and at Marsh’s request he executed the deed to Rapp who had given the brethren quite a talk on their moral obligations; that they told him the deed was wanted as additional security by the Benton Harbor State Bank and Farmer asked him to make it out to Rapp, as trustee, and he accordingly made out the deed to Rapp as security, or collateral, for the note they all signed. Rapp testified that he never talked about the matter with Sherman before he signed the note, which he at first refused to sign, but states he did so later, “after Mr. Farmer came to my office with the deed made out to me as trustee. This deed was made by Mr. Sherman, as security for signing the note. * * * It was clearly set forth to me that Mr. Sherman was becoming solely as guarantor for payment of the note to the subscribers, to the signers.” Plaintiff’s testimony is that it was given to Rapp “as trustee for the persons named, that signed the note.”

It eventuated that plaintiff’s fraternal faith was not well founded and his impulsive liberality for the good of the order in general and Marsh in particular left him a victim of misplaced confidence. Unable to get his money back either from the lodge or any of those who had signed the unnegotiated note to the State Bank he, on April 11, 1918, secured from Rapp an assignment of the trust deed of December 31, 1915, which Rapp testified was withheld from record at Sherman’s request and destroyed by fire some time before he made the assignment. In the meantime the lodge had faded out of existence and Sherman refused to recognize any legal or moral obligation in the matter beyond an offer to contribute his proportion of the $1,000 in connection with the others who signed the note to the State Bank. Actuated as he admits by plaintiff’s insistence that he was holden for the whole $1,000 paid by the former as related, Sherman foolishly deeded the property described in the trust deed to his wife through the medium of a third party, which concededly availed him nothing and so far as of any significance could only serve to his prejudice.

On April 11, 1918, plaintiff filed this bill of complaint, in the nature of a foreclosure bill, to collect the money he had paid the National Bank in taking up the past due note of the lodge, primarily to relieve Marsh as he testified, claiming under the facts alleged that he was subrogated to rights evidenced by the trust deed. The trial court adopted that view and granted the relief asked.

Plaintiff’s documentary evidence in this case is the past due notes of the lodge to the National Bank for $1,000 which he voluntarily paid on December 31, 1915, the rejected note to the Benton Harbor State Bank signed by Farmer, Parks, Marsh, Glennan, Rapp, and Sherman, the chattel mortgage from the lodge to Sherman with an affidavit by the latter of its renewal and the assignment to plaintiff by Rapp' of the unrecorded and destroyed trust deed, to which he claims subrogation and the right to foreclose it as a mortgage.

It is undisputed that the note, chattel mortgage and trust deed were prepared and signed with the expectation and for the purpose of borrowing $1,000 from the Benton Harbor State Bank. That project failed, and different arrangements were made, to which Sherman was not a party, and of which he had no knowledge at the time. He, at Marsh’s request, had previously prepared, executed and acknowledged the trust deed and given it to Farmer who turned it over to Rapp who then signed the note. Plaintiff’s claim is that when subsequently informed of what had been done Sherman ratified it. This the latter denies, except as he offered to pay his proportion. Of the transaction when plaintiff parted with the money he now seeks to recover from defendant he testified on cross-examination in part as follows:

“Q. Well, then, your action, taken on the afternoon of December 31st, 1915, when you raised the thousand dollars and went down to the bank and paid.the money, was a voluntary action on your part?
“A. Yes, sir. ' fev’ '
“Q. The defendant was not a party to it?'
“A. No, sir. He was not until the next' day'.. I took the matter up with him and he said it didn[t make any difference, • he would stand good'for it' just the same. Next day or day after that.
“Q. Several months afterwards?
“A. Shortly after. I was pretty badly worried there awhile.
“Q. You don’t claim that Snerman knew anything about your- action before you did it?
“A. No, sir, he didn’t know before I did it.
“Q. You did not consult him?
“A. He sanctioned it afterwards; O.K.’d it after-wards.
“Q. You did not consult him?
“A. No.
“Q. He didn’t agree you should do it?
“A. No.
“Q. He had no talk with you nor you with him whatsoever, about your paying, personally, a thousand dollars to the Farmers & Merchants Bank?
“A. No.”

Of the six members who signed the note only three appeared as witnesses in the case, plaintiff Parks, defendant Sherman, and Rapp. Farmer, Marsh and Glennan, the three leading spirits whose fraternal activities laid the foundation for this trouble, seem to have disappeared and did not testify. Of the purpose of the deed, the three who testified agree that it applied only to the unused note the six signed. Sherman, who prepared and executed it, testified it was given as additional security for the note, meaning that “should all the men who were signers of the note not be collectible, finally it would come to the property,” while Rapp testified it was made “as security for signing of the note,” and Parks that it was to protect the signers of the note. In 1918, when Parks was pressing Sherman for payment he refused to accept the latter’s offer to pay his share, and in explanation states that he said to Sherman, “If you pay me your share and release this deed, I can’t get the rest.” Adverting to the purpose of the deed as he yet understood it-he testified as follows:

“The talks that I had with Sherman were had in 1918, and I asked him at those times what we had better do about it. He had requested us not to record it, consequently we thought nothing more than fair to ask him what we had better do. We thought the proper time had come to record that to protect the signers.
“Q. Protect the signers of what?
“A. Of that note.
“Q. The note that was never used?
“A. Never used. * * *
“Q. How much have those other men paid you that signed this note?
“A. They have not paid anything.
“Q. None of them?
“A. None of them.”

Of the chattel mortgage given to Sherman by the trustees of the Moose Lodge to indemnify him in putting up the trust deed, it appears that the property covered by it did not belong to the lodge but to an allied organization called the Moose Club. The authority of the trustees of the lodge to encumber the property of the club for the debts of the lodge was questioned, and so far as any record evidence is produced their authority to mortgage either lodge or club property is not shown. Parks testified they had such’ authority and gives the following not altogether lucid, reason:

“Because the property of the lodge belonged to the club, Moose Club and not Moose Lodge, consequently, the trustees had power over that at that time, without the sanction of the lodge. That was thoroughly discussed at that time, so as to get it correct. It was organized as the Moose Club.”

Sherman testified: “I found it had been given me illegally and didn’t amount to anything so I didn’t pay any more attention to it at all”; that he never took possession of the property under the chattel mortgage nor sought to foreclose it, and only came into possession of the property of the club as a member of the house committee. Parks testified of this:

“The control of all this loose property was turned over to Mr. Sherman by a house committee composed of Mr. Sherman, Harry Smith and myself. Mr. Sherman then assumed management of the club rooms, directed its operation, appointed its custodian, and took charge of all the funds received and paid out. * * * One reason we turned the management of the Moose Lodge over to Sherman was because nobody else would take it. The lodge was going on the rocks at that time, but that was not the primary reason.”

At just what time the management was turned over to Sherman by the house committee is not made clear, but there is evidence that the lodge finally struck the rocks and went out of existence in the fall of 1917. In the meantime the personal property remained in use in the lodge or club rooms as before, except that towards the close some articles were disposed of as need or opportunity arose. The first were some chairs and a pool table sold to a Mr. Newland by authority of the organization at a time when its quarters were moved from the Newland building into another where rent was lower. Before the lodge went out of existence it several times made payments of interest on the $1,000 it owed Parks and as late as April 8, 1917, the custodian of the lodge by direction of Sherman paid him $46.08, which was what they then had in the club treasury. After the lodge was closed Sherman took possession of and sold some of the property in his capacity as house manager as he claimed, keeping account of the proceeds and applying them to the debts of the organization. His story of the closing events is that he received notice from the secretary of the lodge that it had gone out of existence, with directions “to go and get the stock”; that he was also notified by Graham & Morton that there was a month and a half rent due for which he was being held responsible as one of the house committee that made the deal, and in January, 1918, he took possession of the property, which he listed at a valuation of $325, and says:

“I then paid certain bills of the lodge,, including rent. I sent Parks a statement of the property sold, the property on hand, the amount of money ■ owing and a check for the money in my possession, the latter being for $38.40; I had deducted the actual cash paid out by me.”

Of this Parks testified:

“Sherman offered to settle up with me for what money there was left for the goods that were disposed of. He sent me an itemized statement of the goods, of the goods sold, and a check for $38.40, and notified others that were still owing him for goods, to come and pay me instead of him. He said he was through with it and didn’t have anything more to do with it. I sent the check back. He had taken something out of the amount collected for the sale of the furniture for rent paid by him for the lodge.”

To what extent Sherman’s activities as house manager expedited the lodge’s progress towards the rocks may be open to debate, but in considering the equities which plaintiffs counsel emphasize in connection with his claims of subrogation we do not think it made manifest that Sherman availed himself of or personally profited from the chattel mortgage, which he believed was of no validity.

We think it is fairly shown, though not admitted, that at one of the meetings called by Farmer to consider ways and means of relieving Marsh from the jeopardy which confronted him, Sherman expressed himself fervently in favor of aiding Marsh, to whom he felt under obligation for money lent him in time of need, and offered to put up a deed of property having an equity of a thousand dollars to secure the rest in signing a note to the State Bank for that amount. Like several of the other brethren who did even less he seems to have been generous with lip service, but what he actually did was to join in signing a note to the State Bank prepared for that purpose and give the trust deed to Rapp as related. The fact that the bank refused the note lends color to his claim that they wanted and he gave the trust deed as additional security to the bank, but whether it was to secure the bank or the signers of the note is of little moment, for the bank lent the lodge no money and the note was never used. The contemplated debt to the bank for which the note was to be given, secured as to either signers or payee by the trust deed, was never created. This deed in the nature of a mortgage could only take effect as such when the debt to be secured by it was created as a binding contract to pay. When the contemplated loan failed the proposed security for it went into the discard with the failure. Rapp’s assignment of the trust deed to Parks was without consideration, and there was no debt to the bank or contingent liability to him or his co-signers of the unused ’note"!!! security for which it was given, as the undisputed testimony shows.

There manifestly were no contract relations to convert this trust deed into legal security for plaintiffs voluntary payment of the lodge’s debt — a transaction in relation to which Sherman was not consulted, and of which it is conceded he had no knowledge or notice until some time after the event — but plaintiffs counsel also urge on equitable grounds that in the absence of a binding legal contract sufficiently strong equities are shown which should move the chancery court to grant relief by subrogating him' “in the place and stead of the signers of the note of the Benton Harbor State Bank”; and particularly emphasize Sherman’s subsequent oral ratification, as testified to by plaintiff and others, which Sherman denies as claimed by plaintiff and rather equivocally seeks to qualify; but whatever assurances or promises he may have made to plaintiff related to the debt of another, were oral and without consideration.

Broadly speaking, equity follows the law and the equitable doctrine of subrogation must be applied with due regard to both the legal and equitable rights of others. A bare moral duty or fraternal obligation of the party sought to be charged is not in itself sufficient ground for substitution. The basic infirmity of plaintiff’s claim t9 right of subrogation is that when he paid the notes of the lodge to protect Marsh he was a mere volunteer paying the debt of a third party, for which neither he nor his property nor defendant was answerable, without the knowledge or consent of the party now sought to be charged and in relation to which he himself had no personal interests to protect.

Bouvier’s Law Dictionary (8th Ed. 1914), in defining “subrogation” states that “a principle which lies at the bottom of the doctrine is that the person seeking it must have paid the debt under grave necessity to save himself a loss. The right is never accorded to a volunteer.”

This underlying principle is recognized in and applicable to the facts in Stroh v. O’Hearn, 176 Mich. 164, cited by plaintiff, and in other Michigan decisions there referred to. In Palmer v. Sharp, 112 Mich. 420, it is said, “This is undoubtedly the general rule.” In which connection it was noted that the question of who is or is not a mere volunteer is not entirely free from difficulties as illustrated by that class of cases where parties have accepted securities in good faith for loans made to discharge existing incumbrances on real estate, and the securities proving invalid subrogation to the rights of prior lienors has been allowed where no superior equities intervened. No such questions arise here. Plaintiff himself testified he paid the lodge debt voluntarily, and it is undisputed that he neither had nor believed he had any property or personal interests to protect in. so doing. Hie voluntarily paid it to protect Marsh, not himself nor defendant. Under such circumstances a claim for subrogation is not permissible, for the principle which lies at the bottom of the doctrine is wanting.

The decree must be reversed and plaintiff’s bill dismissed with costs to defendant.

Moore, C. J., and Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

Justice Kuhn took no part in this decision.


author: Brooke, J.

text:
    BLACK v. SPEARS.
    1. Limitation of Actions — Abuse of Process — Statutes.
    In view of section 9, chap. 9, of the judicature act (3 Comp. Laws 1915, § 12319), providing that “all actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions,” where a right of action for abuse of process of attachment accrued on January 14, 1914, an action started therefor on January 22, 1917, held, to have been commenced seasonably.
    2. Abuse of Process — Liability Therefor.
    Where defendant was present when an unlawful seizure was made, aiding and advising the undersheriff, he would be liable for such damages, if any, as would naturally flow from any oppressive execution of the process.
    3. Same — Evidence—Tender of Redelivery — Question for Jury.
    Where defendant’s testimony of an unconditional tender of redelivery of the seized stock of goods was denied by plaintiff, a question of fact was presented for the jury.
    4. Same — Tender of Redelivery — Refusal—No Bar to Action— Effect on Damages.
    The subsequent conduct of plaintiff in refusing to accept a redelivery of his stock, when, and if, tendered, should be considered by the jury in passing upon the question of damages, but should not be held to bar the action, ■ unless, at the time the tender was made, no damages could have resulted.
    Error to Tuscola; Beach (Watson), J.
    Submitted' October 9, 1919.
    (Docket No. 16.)
    Decided February 27, 1920.
    Rehearing granted.

      Case by George V.'Black against William J. Spears and another for a wrongful seizure of a stock of merchandise under a writ of attachment. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Kinnane, Black & Leibrand, for appellant.

      Walter S. Wixson and John W. Quinn, for appellees.
    On January 24, 1914, defendant William J. Spears caused an attachment to be issued against plaintiff from a justice’s court under the claim that plaintiff was about to remove a stock of goods from the county. Under said writ defendant Spears, acting through a deputy sheriff, took possession of the building which belonged to the other defendant, Anna H. Spears, and the stock of goods therein, the property of the plaintiff, which on appeal to the circuit court was affirmed. The case was then removed to this court by writ of error and was here affirmed. Spears v. Black, 190 Mich. 693.
    The suit under consideration was commenced by summons on January 22, 1917, three years lacking two days from the date of the levy of the attachment. Counsel for plaintiff say that this suit is brought:
    “To recover damages from the above named defendants. for the wrongful seizure of a certain stock of goods and merchandise, for the wrongful breaking up and destruction of plaintiff’s business and the wrongful taking possession of a certain store that plaintiff was in possession of.”
    The first count in the declaration is a simple count in trover alleging the unlawful and wrongful conversion of plaintiff's stock of goods to defendants’ use. The second count is in part as follows:
    “That on, to wit: January 24th, 1914, said defendant, Anna H. Spears acting in conjunction with and through her said agent, and the said William J. Spears, defendant' herein, conspiring and contriving wrongfully to injure and oppress.plaintiff, and while said plaintiff was engaged in conducting and carrying on a general business in the sale and handling merchandise in said store and building, with their agents and servants and assuming to act under a certain writ of attachment, issued by a justice of the peace of said village of Vassar, did enter said store and seized and took possession of all of said goods, wares and merchandise of said plaintiff therein situate, and did forcibly dispossess, oust and evict said plaintiff and his employees, agents and servants therefrom, and did thereafter wrongfully retain possession of said building and of said goods and merchandise and did convert the same to his own use. That said defendant, William J. Spears, was, at the date aforesaid, a lawyer by profession, and that he counseled, directed and controlled the aforesaid seizure of said building and merchandise, personally taking part in said seizure and directing and controlling it, and that he, the said William J. Spears and his principal, said Anna XL Spears, did, by reason of the premises, wrongfully and unlawfully seize said store and property and evict and dispossess said plaintiff, his employees, agents and servants, and did unlawfully retain possession of said merchandise, and did wrongfully and unlawfully convert the same to their own use. That the writ of attachment aforesaid was issued upon the claim of said defendant, Anna H. Spears, against plaintiff, as sworn to by said William J. Spears in the affidavit for writ of attachment, for the sum of two hundred sixteen ($216.00) dollars, that being the amount claimed to be owing and due from said plaintiff to said defendant, Anna H. Spears.”
    The third count contains the following averment:
    “That at the time of said eviction, aforesaid, defendant sued out a writ of attachment against plaintiff for the sum of two hundred sixteen ($216.-00) dollars, alleged to be due from plaintiff, said writ being in the name of Anna H. Spears as plaintiff therein, against plaintiff, and that said writ merely authorized the seizure of goods and chattels sufficient to satisfy said writ, together with costs, and did not authorize or in any way justify the seizure of the building, or the closing of said store, or the ousting and eviction of plaintiff, his employees, agents and servants, from said store, and did not authorize or justify the destruction of the business, good will and valuable interest hereinbefore set forth, and did not authorize or justify any of the acts of wrong and oppression aforesaid, and merely justified the seizure of, to wit, two hundred sixteen ($216.00) dollars worth of merchandise in said store and enough more to pay the reasonable costs in connection with such, which seizure, if made according to law, would not affect appreciably the stock of. to wit, eight thousand ($8,-000) dollars in merchandise, or in any way destroy and ruin the said business, good will and other valuable interest above set forth.”
    The plea was the general issue with a notice of five several defenses which need not here be set out. The case was tried at considerable length. At the conclusion of the proofs a motion was made on behalf of the defendants for a directed verdict which motion was granted, the court charging the jury as follows:
    “As I have just stated, this has been an extremely intricate case to try, there have been very many questions of law' and very many questions of fact, and I question whether you have been able to follow everything clearly. I know, as I say, that I have become befogged at times in trying to follow the ramifications of the evidence and the various questions of law which have arisen.
    “The case has been very strenuously tried by counsel and they have attempted to afford the court all the light possible, and as a result, I deem it my duty to say to you that the law in the case governs the case. One prime fact in the case which has led me to this conclusion, is the fact, undisputed, that the parties in this case had a former litigation commenced by the defendant in this- case against the plaintiff in this case, this is Mr. Spears was plaintiff in the former case, in an action to recover what he claimed to be due for rent.

      “The attachment which is the basis of this case, was issued in that case; the case was tried in justice court, tried in this court, appealed to the Supreme Court and certain facts in that case have become the facts in this case and the law in that case has become the law in this case by reason of that adjudication— they are settled. One prime fact which was settled in that case is this: The allegation in the writ of attachment is that the defendant, Black, at the time of the attachment writ was taken out was about to remove his property from the county. That issue was litigated in that former case. Mr. Black denied that he was about to remove it. A great quantity of testimony was directed to that question, and the jury in that case found with Mr. Spears, that Mr. Black was about to remove the goods from the county, and that the rent, in consequence under their contract became due for the year. Now, that question was settled for all time, that Mr. Black was about to remove that stock from the county and from the store. That governs us in this case.
    “Now, in this action, when it was commenced, there was a statement of plaintiff’s claim, a declaration in three counts, as the lawyers say, there were three different aspects of his claim, of the wrongs which he claimed were done him. The first count was a claim of actual conversion or a taking of the property without right, depriving Mr. Black of it. The other two counts claimed damages for a misuse of the writ of attachment.
    “We have what the lawyers call a statute of limitations, in common parlance, a matter is said to be outlawed if it runs so long without suit. The action shadowed in the two counts, the second and third counts of this declaration, sounded in what the lawyers know as malicious prosecution, a malicious and wrongful use of the writ of attachment. The statute or outlawry of limitations, as we call it, prescribed that actions of that character shall be brought within two years after the wrong done. Two years had expired when this action was commenced so that the causes of action in the second and third counts of the declaration were outlawed and could not be revived. That left the first count in the declaration which is for conversion of the stock.

      “Now, as I understand the claim of the plaintiff in this case, he claims that Mr. Spears was directing the levy of the writ of attachment. It is undisputed that the undersheriff was there present with the writ, but the claim is that Mr. Spears was directing all the operations there in the levy of that attachment, and that, under his directions, the store was closed and the occupants driven out.
    “Now, as I said before, the former case has fixed the fact that there was probable cause for the issuing of that attachment. The proceedings in justice court in that attachment case were regular and perfect. The return shows that the officer seized the stock. If there was any wrong in the use of (that attachment, it was in seizing the whole stock for a claim of $216 — there was so large an excess of stock over and above the claim.
    “Now, the undisputed facts are that Mr. Black was in the village on Monday morning; this attachment was levied on Saturday night at about the close of business and Sunday was a non-business day, and Monday morning Mr. Black appeared in town. It was a disputed question as to what took place between Mr. Spears and Mr. Black at that time, and that probably is the only disputed question of materiality in this case — as to whether Mr. Spears tendered back to the plaintiff the stock on Monday — that in some events might have gone to. you as a question of fact. But following that time, some days later, it is undisputed that a notice was served upon Mr. Black by the sheriff —the undersheriff — that he could have his stock and store and that he did not take it.
    “Now, as I said before, if Mr. Black sustained any damages, it .was not for the conversion of the stock. Under the legal proceedings, the officer had his writ, it was a legal writ and the possession of the goods was that of the officer and not of Mr. Spears, although Mr. Spears may have been present and directing the proceedings and if Mr. Black had an offer of the return of the stock at the time claimed, it was his duty to receive the stock and to lessen his damages if he had any damages. But the prime fact is that the stock was not in the possession of Mr. Spears. Legally, the stock was in the possession of the officer and the cases hold emphatically, the law holds that while in the possession of the officer, an action of trover or of converting the stock to the use of Mr. Spears would not lie.- If there was a wrongful attachment, the officer was holding under the attachment, and the action should have proceeded against' the undersheriff.
    “For these reasons, a verdict is directed for the defendants in this case and you are discharged from further consideration of the case.”
   Brooke, J.

(after stating the facts). In this court it is contended that the court was in error in holding that recovery under the first count was barred by reason of the adjudication in the case of Spears v. Black, supra; likewise in error in holding that recovery under counts two and three was barred by the statute of limitations. We will consider the last question first. Subdivision 3 of section 12323, 3 Comp. Laws 1915, provides:

“Actions against sheriffs for the misconduct or neglect of themselves, or their deputies, actions for trespass upon lands, for assault and battery, for false imprisonment, for malicious prosecution * * * shall be brought within two years from the time the cause of action accrues and not afterwards.”

Subdivision 2 of said section provides:

“Actions to recover damages for injuries to person or property shall be brought within three years from the time said actions accrue, and not afterwards.”

The law relative to the limitations of • actions in force prior to the passage of the 1915 act will be found in section 9728, 3 Comp. Laws 1897, which provides:

“Sec. 1. The following actions shall be commenced within six years next after the cause of action shall accrue, and not afterwards, that is to say: * * * All actions of replevin and trover, and all other actions for taking, detaining, or injuring goods or chattels; all other actions on the case, except actions for slanderous words, or for libels.”

The time therefore within which an action for malicious prosecution could have been commenced prior to the passage of the 1915 act was six years. It is earnestly contended on the part of plaintiff that counts two and three of the declaration are distinctly counts “for the recovery of damages for injury to property,” and cannot properly be construed as they were by the learned trial judge: “As counts for malicious prosecution.” . It is perhaps unimportant to determine the technical meaning of the language employed by the pleader in those two counts. Reduced to their final analysis they charge the oppressive and unlawful execution of a process admittedly legal in its issuance, but assuming the construction of the trial judge to have been correct, we are of opinion that he was in error in holding that recovery under counts two and three was barred by the statute of limitations. Chapter 9 of the judicature act deals with the limitations of actions. Section 9 (3 Comp. Laws 1915, § 12319) of the chapter provides:

“All actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or right of entry.”

This is a general provision and in our opinion affects all actions whether personal or involving real estate. Inasmuch as plaintiff’s right of action, if he has any, accrued on January 24, 1914, and his action was started on January 22, 1917, it must be held under the provision of section 9 to have been commenced seasonably. It is strenuously urged on the part of defendants and appellees that the case should be affirmed under the provisions of section 28, chap. 50, of the judicature act (3 Comp. Laws 1915, § 13763). This position is predicated upon'the alleged fact that upon Monday following the seizure of plaintiff’s stock on the preceding Saturday, the stock was tendered back to plaintiff who declined to accept its return with the remark: "You bought something,” and the further contention, apparently uncontradicted, that the stock was tendered back to plaintiff on February 12th in writing.

A careful reading of this very voluminous record convinces us that after the seizure of the stock on the writ of attachment, defendant in that suit, plaintiff in this, deliberately sought to create a situation from which he might reap a profit. Upon the stand he denied the unconditional tender of the stock to him on the Monday following the seizure, thus raising a question of fact for the determination of the jury.

We are constrained to hold that the fact that he attempted to capitalize the original wrong of defendant, if there was one, is not a bar to his recovery for such damages as naturally and properly resulted from the alleged wrongful act. It seems plain from this record that the defendant William J. Spears was present when the seizure was made, aiding and advising the undersheriff in his act. Under such circumstances defendants would be liable for such damages, if any, as would naturally flow from any oppressive execution of the process. The subsequent conduct of the plaintiff in refusing to accept a redelivery of his stock, when, and if, tendered, should be considered by the jury in passing upon the question of damages,.but should not be held to destroy the cause of action unless the jury should find that the .tender was made at a time when no damages could have resulted.

The judgment must be reversed, and a new trial ordered, with costs to plaintiff.

Moore, C. J., and Steere, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

Justice Kuhn took no part in this decision.


text:
    GRIEWSKI v. IRONWOOD & BESSEMER RAILWAY & LIGHT CO.
    1. Stbeet Railways — Negligence—Contbibutoey Negligence.
    . In an action against • a street railway company for the wrongful death of plaintiffs decedent, evidence that decedent, a man 52 years of age, in good health, in broad daylight, started to cross a street car track, walking diagonally towards the approaching car which was in plain sight, less than 12 feet away, and running at a rate of speed not in excess of 6 miles an hour, held, sufficient to sustain the finding of the trial court that decedent was guilty of contributory negligence as a matter of law.
    2. Same — Subsequent Negligence.
    Where, after decedent entered the danger zone, there elapsed less than two seconds before he was struck by the car, the doctrine of subsequent negligence is not applicable, there being insufficient time for the brain and body to function properly to stop the car in time to avoid the injury.
    3. Same — Negligence—Reasonable Cabe.
    In such action, defendant, through its agents, must be held to the exercise of reasonable care from the instant decedent placed himself in a position of peril.
    4. Same — Negligence—Subsequent Negligence.
    Even if the motorman was guilty of negligence in failing to observe decedent as he entered the danger zone, no greater burden is cast upon defendant than it would have been obliged to sustain had decedent been seen at the instant ' of his entry; failure to act during the lapse of a single second being insufficient to invoke the doctrine of subsequent negligence.
    On right (f motorman to assume that no one will attempt to cross track so close in front of car as to render collision probable, see note in 5 L. R. A. (N. S.) 1059.
    On right of motorman to assume that person on track will get out of the way, see note in 21 L. R. A. (N. S.) 880.
    Error to Gogebic; O’Brien (Patrick H.), J., presiding.
    Submitted October 28, 1919.
    (Docket No. 13.)
    Decided February 27, 1920.
    Case by Mary Griewski, administratrix of the estate of Anton Griewski, deceased, against the Ironwood '& Bessemer Railway & Light Company for the alleged negligent killing of plaintiffs decedent.- Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Charles M. Humphrey (Sanborn, Lamoreaux & Pray, of counsel), for appellant.

      James A. O’Neill, for appellee.
    This action arose out of the alleged negligent killing of plaintiff’s decedent by the defendant through its agents. Plaintiff’s decedent was a man 52 years of age, in good health, who had lived' for many years in the city of Ironwood and for upwards of a year had conducted a grocery and meat market on the north side of Aurora street in said city about midway between Lowell and Lawrence streets. Upon Aurora street is a single street car track over which defendant operates both urban and interurban cars. The urban cars run between the city of Ironwood and Hurley, Wisconsin, and the interurban between the city of Bessemer and the city of Ironwood. The accident happened at, or very shortly after, 12 o’clock noon near the center of the block between Lowell and Lawrence streets. The interurban car had gone west, passed Lawrence street for a distance of about a block, where it changed its course by shifting the trolley and started on the return trip east. As it approached Lawrence street from the west it descended a grade something in excess of three per cent. Between Lawrence ■ and Lowell streets the grade continued to descend but at about 1Yz per cent. rate. It was not raining at the time but rain had fallen and the rails were damp or wet. At the time of the accident the car was being operated at a rate of speed certainly not in excess of 6 miles per hour. Plaintiffs decedent, leaving his place of business, walked westerly a short distance, then started to cross Aurora street diagonally in a-southwesterly direction. The distance between the curb line and the north rail of the street car track is 17i/a feet. The distance between the rails is 4 feet, 81/2 inches. While traversing those distances decedent, because of the direction in which he was traveling, faced or partially faced the oncoming interurban car which was in plain view for a block or more as it approached, nevertheless he walked immediately in front of the car, crossed the space between the tracks and was struck just as he was stepping over the southerly rail or immediately after he had stepped over it. The impact threw him to the right .and caused injuries from which he died the following day.
    The learned trial judge reached the conclusion that plaintiff’s decedent was guilty of contributory negligence as a matter of law and so instructed the jury, but being of opinion that the case was one in which the doctrine of subsequent or gross negligence might be applied he charged as follows:
    “I charge you, as a matter of law, that even though deceased was guilty of negligence, yet if you further believe from the evidence.that the defendant’s motorman was also guilty of negligence, and that the negligence of the plaintiff’s intestate was precedent, and that the negligence of the defendant’s motorman, if any, was subsequent thereto, then the plaintiff would not necessarily be prevented from recovering damages in this case.
    “I further charge you that if the deceased was in a position of peril on or near the tracks of defendant and if the motorman on defendant’s car saw, or could by the exercise of ordinary care have seen, that the deceased was in such a position of danger, and knew, or had good reason to believe, that deceased could not extricate himself from such position of peril or reach a place of safety, and that great injury, to deceased would result unless the car was stopped or its.speed slackened or the deceased warned by the sounding of the gong or otherwise, and if said motorman, after so observing and realizing the peril of the deceased, or after he could by the exercise of reasonable and ordinary care and caution have observed and realized the peril of deceased, could by the exercise of due and reasonable care and diligence have stopped the car or slackened its speed with the appliances he then had on his car, or have sounded a gong so as to have given deceased warning of the close approach of the car, and in failing to do one or all of these things was guilty of negligence which caused the injury to_ deceased which resulted in his death, then the jury should find for the plaintiff, assessing the plaintiff’s damages under the rules to be hereafter given. * * *
    “It is obviously impossible to demand that motormen, when running at proper speed, should check their cars whenever they see a pedestrian in front approach the track. If the distance is sufficient for a crossing to be made safely, the motorman has the right to assume that the pedestrian will so cross; if the distance is insufficient, he has the right to assume that the pedestrian will maintain a position of safety at the side of the track. The motorman is not bound to anticipate that the pedestrian will place himself in a place of danger; indeed, he has the right to assume the contrary.
    “If you find from the evidence that from the time the motorman discovered, or in the exercise of ordinary care should have discovered, that Mr. Griewski was In a position of danger, the motorman did all in his power to stop the car and prevent the collision, your verdict must be for the defendant.
    “You are instructed that the motorman had a right to rely on the pedestrian’s observance of the car, up to and until such a time as circumstances developed or a situation developed from which the motorman, In the exercise of reasonable and ordinary care and caution in operating his car along that street, discovered, or could have discovered, that the deceased was in a position of danger. You are instructed that the defendant owed Mr. Griewski the duty only to exercise ordinary care in the operation and management of .its street car. * * *

      “If the case was such that the plaintiff’s intestate suddenly placed himself in a position of danger in front of the car at a time when it was too late for the motorman to stop the car or check the car, or to have sounded the gong or helped him in any way, and so that the motorman could not, by the exercise of reasonable care, have done anything to avoid the injury, then, gentlemen, the plaintiff in this case cannot recover. If, on the other hand, you find by a fair preponderance of the evidence that the motorman in the exercise of reasonable and ordinary care and caution, could have discovered the perilous position of plaintiff’s intestate, if he was in a perilous position at any time so that he could have been discovered by the motorman operating that car, and the motorman failed to discover such danger of the deceased, or if, having discovered it, he failed to take measures to avert an injury to plaintiff’s intestate, that is to say, failed to take such measures as a reasonably careful and prudent motorman would have taken under the circumstances, then the defendant would be liable. Before you can find for the plaintiff in this case you must find that the negligence of the motorman, if any, was subsequent to the negligence of. the deceased; in other words, that the dangerous position of the deceased existed and became apparent to the motorman, or by the exercise of ordinary care would have become apparent to the motorman, in time so that the motorman, by the exercise of reasonable and ordinary care and caution, by doing the things at that time and under those circumstances that a motorman of ordinary care and prudence operating that car would have done, could have avoided injuring the deceased.”
    The jury rendered a verdict in favor of the plaintiff for $13,883. A motion for a new trial was made upon various grounds but was denied by the court upon condition that plaintiff should remit all of said judgment in excess of the sum of $8,000. The plaintiff did so remit and the judgment was permitted to stand at the lesser sum.
   Brooke, J.

(after stating the facts)'. Several witnesses for plaintiff were sworn as to the rate of progress plaintiff’s decedent was making immediately before the impact. One says:

“He was walking very slow; the ordinary rate for an old man, * * * an ordinary walk.”

Another:

“He was walking not fast or slow, just medium, just the right way, an average walk, just a good brisk walk.”

For the defendant one witness testified upon the same point:

“It was a kind of a little fast like; it was not hardly a trot, but a kind of a fast walk.”

Another:

“When he started across he started at an ordinary rate, and continued the ordinary rate until he got about in the middle of the road, between the car track and the sidewalk. The truck was coming on the north side of the tracks. It wasn’t a very great distance away. It was a little ways behind me. I think Mr. Griewski was a little afraid of the truck on account of the noise it was making, and he started a little faster across the street. In fact he started to run.”

Considering all this testimony we think it may be fairly deduced that decedent was progressing diagonally across the street and directly across the track in front of the oncoming car at a rate of speed at least as great as three miles an hour. Indeed the assumption that a higher rate was maintained would probably be justified. Assuming, however, that the rate did not exceed three miles per hour, plaintiff would cover 4.4 feet per second or in two seconds 8.8 feet. The distance between the rails plus the overhang of the car was approximately 8 feet so that from the time of his entrance to the zone of danger to his clearance something less than two seconds elapsed. In disposing of the motion for a new trial the learned circuit judge said:

“The evidence shows that the car was going about four miles an hour and. could have been stopped in six or seven feet.”

Assuming the analysis of the testimony by the learned circuit judge as to the rate of speed of the car to be justified by the record (though perhaps a slightly higher rate of speed would be nearer correct), the car would be traveling at the rate of a trifle less than 5.9 feet per second or in two seconds 11.8 feet. Decedent and the car came in contact just as he was stepping over the south rail something less than two seconds after he entered the zone of danger. It is clear that defendant’s agent had the right to assume that decedent would not attempt to cross in front of the- car then less than 12 feet away from him and that he was under no obligation to act until decedent had actually placed himself in a place of danger by stepping on the track immediately in front of the car, then, and then only, the legal duty rested upon defendant’s agent to use all reasonable means to avoid injury to decedent whose position of peril was the result of his own antecedent negligence. Blatnikoff v. Railway, 202 Mich. 69.

The motorman in charge of the car testified as follows:

_ “When I first saw Mr. Griewski he was just almost directly in front of the car, possibly two or three feet in front of the car. At the time I first saw the load of lumber it was in front of Hogen Nelson’s shop, and it was ahead of me, although I cannot say how far. At the time I first saw Mr. Griewski the wagon was just driving out then getting away from the track. I watched the load of lumber continuously from the time I sounded the gong until I saw Mr. Griewski.
“When I first saw Mr. Griewski I threw on the air fes fast as I could. That means that I pushed the lever over. At that time I cannot, state exactly what speed the car was traveling, as I believe it was impossible for anyone to do so, but I believé it was possibly four to seven miles an hour. I figure that a common horse would travel probably four miles an hour, and I was gaining very slowly on this team. I couldn’t be going very much over four miles an hour, but I was going just a little faster than the team.
“Before the accident it had rained hard that day, and I had been on the same car all that morning. The brakes were good so far as I know — in good condition, and had been working satisfactorily. The power was good, and the car generally was in good condition.
“At the time I saw the motor truck approaching I did not see Mr. Griewski on the street. There was no one on the street that I could see. I could not say exactly what distance the car traveled after I applied the brake before it came to a stop. It was approximately six to eight feet. It would be hard for anyone to say.”

Witness Ohlin gave expert testimony as follows:

“I am familiar with the Bessemer car. It is equipped with an air brake. When that car is moving at about six miles an hour on a level track with a dry, clean rail, it can be stopped within from four to six feet, after the full force of the air is applied. Moving at the same rate and the same brake applied on a wet rail, and on a level track, it could be stopped in from five to seven feet, or probably a little better. If the track is sloping it may take more.”

No testimony was introduced in contradiction of that just quoted. Indeed plaintiff’s argument in favor of an affirmance of the judgment is based upon its truth. We have then a situation in which a heavy interurban car is moving on a wet rail on a down grade. Plaintiff’s decedent enters the zone of danger at a point about 12 feet in front of the car. An appreciable time must elapse before the brain can act upon the body; a further appreciable time must elapse during which the muscular movement of the body performs the necessary functions; in applying the air some fraction of a second doubtless is necessary before “the full force of the air is applied.”

We do not think it possible, under the facts in this case, for the doctrine of subsequent negligence to find application. No case has been cited, and we apprehend none can be found where the failure to act during a period of at most a single second has been held sufficient to permit the jury to find that the defendant in the exercise of reasonable care might have avoided injury to the one placed in peril by his own negligence. A review of some of the well known cases upon this question will show that the doctrine has been applied only in cases where with the exercise of reasonable care the defendant could readily have avoided injury to the one in peril.

In the case of Montgomery v. Railway Co., 103 Mich. 53 (29 L. R. A. 287), it is said:

“It is settled that, when one attempts to cross in front of an approaching train in plain view, he takes his chance of being injured, and cannot complain. * * * In the present case it is conceded that Grinnell was careless, and, but for the gross carelessness of defendant’s servants charged in the declaration and proved on the trial, he could not recover. It is quite a different case than where one attempts to cross in front of the car.”

In Battishill v. Humphreys, 64 Mich. 514, the peril of the child was apparent for a distance of 492 feet, a sufficient distance as this court found to enable the train going three miles an hour to have been stopped before injury to the plaintiff.

In Bladecka v. Electric Co., 155 Mich. 253, plaintiff’s position and actions were apparent to the defendant’s agent for a distance of 250 feet.- The street car was being operated at a very low rate of speed wholly under control and yet it was permitted by defendant’s agent to overtake and collide with plaintiff’s rig.

In the case, of Calvert v. Railway, 202 Mich. 311, defendant’s agent noticed plaintiff’s attempt to cross in front of him at a point more than 90 feet from the point of the accident. It was demonstrated that the car could have been stopped within a distance of.50 feet, indeed it was stopped within such distance after the regular motorman took charge of the instrumentality.

In the case of Fike v. Railroad Co., 174 Mich. 167, it appeared that plaintiff’s predicament was apparent to defendant’s agent at a point more than 300 feet distant from the point of the collision.

In Walter v. Railway Co., 191 Mich. 181, a distance of 700 or 800 feet intervened between the car and the point where the horse jumped upon the tracks, and it appeared from the testimony that, allowing all necessary time in which to have stopped the car, there remained a clear distance of 150 feet. Similar cases where the doctrine has been applied are Hibbler v. Railway, 172 Mich. 368; Weitzel v. Railway, 186 Mich. 7; Millette v. Railway, 186 Mich. 634.

In the discussion of the entire question defendant through its agents must be held to the exercise of reasonable care from the instant the plaintiff’s decedent placed himself in a position of peril. The testimony of the motorman indicates that in fact he did not see plaintiff’s decedent until he was directly in front of the car only two or three feet distant, but assuming that he was guilty of negligence in failing to observe decedent as he entered the zone of danger, no greater burden is cast upon the defendant than it would have been obliged to sustain had its agent actually seen decedent at the instant of his entry. His failure to act during the lapse of a fraction of a second or at most a single second is not in our opinion such a failure as would warrant the invocation of the doctrine of subsequent negligence under the authorities of this State.

The judgment is reversed without a new trial.

Moore, C. J., and Steere, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

Justice Kuhn took no part in the decision.