author: Grant, J. Carpenter, J.

text:
    WRIGHT v. KAYNOR.
    1. Husband and Wife — Tenancy by Entireties — How Created —Tenancy in Common.
    Where a conveyance to a man and woman does not describe them as husband and wife, and they are not in fact husband and wife, though they have gone through a ceremony of marriage and live together in that relation, there being an impediment to the marriage, the estate created by the conveyance is not a tenancy in entireties but a tenancy in common, the woman’s share of which, on her death, descends to her heirs.
    2. Contracts — Options — Validity — Unilateral Contracts — Consideration — Lease.
    A stipulation in a lease giving the lessee the option to renew the lease and to purchase the land forms a part of the inducement for the execution of the lease, is founded on a sufficient consideration, and is valid, though it is unilateral in the sense that the lessee is under no obligation to renew or purchase.
    3. Tenancy in Common — Contracts of Co-Tenants — Notice to Co-Tenant — Sufficiency.
    Where a man and woman, believing themselves to be tenants in entirety of certain lands, but in fact tenants in common, executed a lease thereof containing options for renewal and purchase, and the woman died before the time to exercise the option arrived, notice to the man of election to renew the lease is sufficient, and binds the heirs of the woman, though the notice was given upon the assumption that the entire estate was in the man and his grantees. Grant, J., dissenting.
    4. Leases — Option for Renewal — Notice of Election — Presumptions.
    Where an option to renew a lease expired on April 9, and the renewal lease, bearing date April 1, acknowledged May 25, contains recitals indicating that the lessee had done what was necessary to entitle him to such renewal, it will be presumed that notice of election to renew was given prior to April 9, irrespective of'the presumption as to the date of the execution of the renewal. Grant, J., dissenting.

      5. Tenancy in Common — Contracts of Co-Tenants — Execution by Co-Tenant — Sufficiency—Equity—Maxims.
    Where a lessee had done all that was required of him to entitle him to a renewal of his lease, the circumstance that the renewal was not formally executed by the heirs of a deceased co-tenant is unimportant, since equity regards that as done which ought to have been done.
    6. Contracts — Validity—Uncertainty—Land Contract — Purchase Price.
    An option to purchase land at a price to be agreed upon by the parties, “ not to exceed $75 per acre,” is not void for uncertainty as to the purchase price, since the purchaser may purchase for 875 if the vendor will not take less.
    7. Same — Construction — Independent Provisions — Lease — Option to Purchase — Provision for Bight of Way — Effect.
    Where a lease 'contains a provision that the lessor shall have a right of way across the premises, and in a subsequent clause in which the right of way is not mentioned gives the lessee the right to purchase the land, the provision for right of way will not be construed to apply to the clause giving the right to purchase.
    Appeal from Kalamazoo; Adams, J.
    Submitted January 18, 1907.
    (Docket No. 53.)
    Reargued October 8, 1907.
    Decided November 5, 1907.
    Bill by Ammi W. Wright against Ansel Kaynor, Levina Kaynor, William H. Bennett, and others, to determine the ownership of certain land, and for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      George W. Mechem and Bernard J. Onen, for complainant.

      Osborn & Mills, for defendants Kaynor.

      O. Scott Clark, for defendants Bennett, et al. .
    Defendant Ansel and Augusta Kaynor were owners as tenants in common of certain land of which that in controversy is a part. On May 2, 1896, said Ansel and Augusta executed a lease to one Dee Allen for the term of five years upon an annual rental of $50. That part material to this controversy reads as follows:
    ‘ ‘ Together with the privilege and right to said second party to a renewal of this lease at his option upon the same terms as herein stated, for an additional term of ten (10) years, after the expiration of the within granted term of five years. This lease becomes null and void upon the failure of the second party to make payment of rent within thirty (30) days after the time stated in this lease. Said second party agrees to give said first party right of way to Gull Lake same width as first party agrees to give second party right of way into said leased land from highway.
    “And in consideration of the leasing as aforesaid, said first parties agree with said second party, for themselves, their heirs and assigns, and the said second party, his heirs and assigns, that at any time during the rental or renewal term thereof, they will sell and quitclaim to said second party the within described premises on payment of the consideration of such a price as may be agreed upon by said first and second parties, price not to exceed seventy-five dollars ($75) per acre.
    ‘ ‘ Said second party hereby accepts within rental, renewal term, and option to buy, and agrees to make payments as herein stated.”
    Augusta died November 23, 1899, leaving one child. He died in August, 1902, being a minor without wife or issue. Ansel married the defendant Levina prior to April 17, 1901, at which date he caused the land to be conveyed to a third party, and by this third party to be reconveyed to him and Levina as tenants in entirety. April 21,1902, Ansel and Levina mortgaged the premises to the defendant Minnie Wing. Defendants Brauer, Nan Luster, and Haak are the brothers and sisters of Augusta and her heirs at law. Defendant Chris Brauer is the administrator of Augusta Kaynor’s estate, and defendant Bennett the administrator of her son’s estate. After Augusta’s death Chris Brauer was duly appointed guardian of her son. The quantity of land in dispute is 15f acres. By an agreement between Ansel and Levina Kaynor of the first part, and Dee Allen of the second part, dated April 1, 1901, and acknowledged May 25, 1901, it was agreed that:
    “ Whereas, by virtue of agreement made on the second day of May, 1896, between Ansel Kaynor and Augusta Kaynor, first parties, and Dee Allen, ■ second party, the privilege and right is given to the second party to a renewal of the said lease at his option upon the same terms as therein stated, for an additional term of ten (10) years, after the expiration of the term of five (5) years therein stated, which said lease and option is hereto attached and made a part hereof, now, therefore, in consideration of a yearly rental of fifty dollars ($50), payable on December first in each and every year, the said agreerment, lease and option to buy, together with each and every paragraph, condition, or option therein contained, is hereby renewed and extended according to provisions of the aforesaid lease and option so as to include the full end and term of ten (10) years from and after the ninth (9) day of April, 1901. Said second party hereby accepts within renewal and option to buy, and agrees to make payments as herein stated.”
    During Augusta’s lifetime the rents were paid to Ansel and Augusta, the receipts sometimes being signed by both, and sometimes by Ansel only. Since her death they have been paid to Ansel and Levina. The heirs of Augusta refused to recognize the lease as binding upon them. So also did defendants Kaynor. Thereupon complainant, who succeeded to all the rights of Dee Allen by proper assignment, brought this suit in equity, praying for the determination of the several rights of the defendants in the premises and for a specific performance of the contract. All the defendants answered. Issue was duly joined, proofs taken and a decree entered dismissing complainant’s bill.
   Grant, J.

{after stating the facts). Ansel Kaynor evidently acted upon the belief that he and Augusta owned this land as tenants in entirety. The deed to them did not describe them as husband and wife. The conveyance was to Ansel Kaynor and Augusta Kaynor as grantees, and to their heirs and assigns. The habendum clause was the same. While they went through a ceremony of marriage and lived together as husband and wife, they were not so in fact, as Ansel had been previously married and by a decree of divorce or separation by the proper court in the State of New York, where he resided, he was prohibited from marrying again.

The conveyance by Ansel and Levina to a third party and by that third party to them as tenants by the entirety, conveyed only one-half interest in the land, which Ansel held as tenant in common with the heirs of Augusta, the defendants so named above. The questions therefore raised must be determined upon the basis of a tenancy in common.

The option for renewal of the lease and for the purchase of the land is valid. It formed a part of the inducement for the execution of the lease, and constituted a sufficient consideration, although it is unilateral in the sense that the lessee was under no obligation to renew the lease or purchase the land. Waters v. Bew, 52 N. J. Eq. 787; Hawralty v. Warren, 18 N. J. Eq. 126; 18 Am. & Eng. Enc. Law (2d Ed.), p. 631.

Did the possession or occupancy of Mr. Allen amount to an election to renew the lease for the additional term of ten years, under the case of Delashman v. Berry, 20 Mich. 292 ? This necessarily involves the examination of the testimony of the complainant as to the character of the occupancy of the premises. The testimony upon which he relies is as follows: One Griswold testified that he had charge of the Allendale property in 1899, and also of the Kaynor property in connection with it. There was a hotel on the Allendale property, but nothing on the Kaynor. He testified:

“From the time Allen purchased it the first year my father ran it; the next year I think Mr. Ford had it, that is he ran the hotel; the next year it was closed. The resort was not open at all, a barbed wire fence around it everywhere. I think it was in 1900 that it was closed.
“During the year I was there Mr. Allen had access to this Kaynor ground. The year the resort was closed there was a sign up on the property, ‘No Trespassing.’ We kept the property cleaned up and the brush and dead trees taken out, and some land leased for tents I believe.
“ I don’t know of anybody who did not have access to the property during the year I was there. There were two young men in one tent on the Kaynor property. They did not occupy all of the property. * * *
“ I knew just about the location. I did not have possession of. the whole Kaynor farm. There was a strip of ground the year I was there that was not cultivated. The land I had possession of practically ran to that where it was cultivated. That was in the open field just beyond the grove. In that field was principally weeds. I don’t know what was cultivated on the Kaynor part. * * * Where it was plowed there was a grass plat between the row of trees and practically Mr. Allen’s line. I cannot tell you how far back that grass plat was from the lake shore. * * *
“ I can’t say if that strip along the lake front had been open and not cultivated all of the time that Mr. Allen 'owned it. Mr. Allen never cultivated it, nor anybody for him that I know of. If anybody cultivated it, I suppose Mr. Kaynor.
CIQ. Then if Mr. Kaynor cultivated this particular strip at any time in any season, then during that season Mr. Allen did not have possession of it, did he ?
“A. I understand Mr. Kaynor did not cultivate this strip.
“Q. So far as you know the only line indicating occupancy by Mr. Allen to these premises was the fact that it was not cultivated, as I understand you.
“A. Why, not necessarily; as I take it that was an imaginary line, perhaps.
“Q. I am not asking you what you take it.
“A. I had no information particularly on the subject outside of Mr. Allen owned that Kaynor property.”

And witness further testified in reply to a question asking what else was done to hold possession:

“ Mr. Allen paid the lease on it. We were not cultivating ground; we were not doing anything especially with it. * * * We had persons employed there to take care of all the hotel property, not of' this Kaynor property particularly.”

Where the barbed wire fence was located does not appear. Where the sign “No Trespassing” was located also does not appear. Where the brush and dead trees were taken up and the land leased for tents is equally uncertain. It is, however, a fair inference, from Mr. Gris-wold’s testimony, that whatever possession there was was very shadowy.

Another witness (Waldorf) testified:

“During the last four years there has been nothing done with that field in the way of farming from the brow of the hill to the lake, unless they cut the grass off of it. I do not know that that has been done, but the field has not been plowed. It has undoubtedly been pastured. There is no fence there. I have not done anything to take possession of that property, that field, more than to trim the trees that stand there and clean it up. I trimmed some tre,es that stand right by the shore of the lake this spring. I never did that before to any extent. I have a little, but not to give them much of a trim. I picked up the dead limbs that were in the grove and used them for firewood. I did not make any arrangement about plowing the field. He asked me why I did not do it. He said he thought it might as well he plowed to get something off of it. Then he says to me well, I will give you half of the corn. I told him I would rather it had not been plowed. I did not think it ought to have been plowed. I don’t think of any other acts of ownership or possession Mr. Allen has done since I have been there.”

I think it clear from this testimony that this 15f acres was vacant and unenclosed, and to all appearances it remained as a part of the farm of Ansel Kaynor. There was no such possession as would give notice to any one that the lessee, Mr. Allen, was in possession, claiming under the lease of under any title. There was no pedis possessio as in Delashman v. Berry, supra, and similar cases, wherein it is held that continued possession and occupancy after the expiration of the lease constituted a sufficient election to accept a new term. The land had not been enclosed and made a part of the hotel enclosure. In the language of the witness, any one had access to it. It was uncultivated. A part of it, but how much does not appear, was covered with trees and brush. Mr. Allen did not use this land for any purpose. He undoubtedly obtained this lease and the option to buy in the expectation that at some future time he could use it in connection with his summer hotel. That time had not arrived when the lease expired. His occupancy then was no different from that he had when the lease was executed.

One cannot renew a lease for unenclosed or unoccupied land by simply claiming the right of possession. That possession, which is the equivalent of a notice, must be actual, visible, and exclusive.

Was the lease renewed as to the heirs of Augusta Kaynor, the tenants in common of Ansel Kaynor, by the agreement of . renewal executed by Ansel and Levina, dated April 1, 1901, and acknowledged May 25, 1901 ? I will first discuss the question upon the theory that this renewal contract was executed April 1, eight days before the expiration of the original lease. There was no attempt at that time to renew the lease as to the heirs of Augusta Kaynor. Evidently Allen and the Kaynors, the other parties to the agreement, acted upon the belief that Ansel and Augusta were ’husband and wife, and that upon her death Ansel became the sole owner.

Co-tenants are not partners, neither does the relation of principal and agent exist between them except upon an express agreement or one necessarily implied. Notice to one co-tenant does not affect the rights of the other co-tenants. Each co-tenant may do what he will with his own interest. He may sell or mortgage it, but he cannot by any instrument or act of his own prejudice the rights of his co-tenants without their knowledge or consent. Co-tenants may join in the same lease, and may in that give an option for. a renewal, and an option for the sale; but one cannot bind the others by any agreement to renew. He cannot waive any of the rights which the •others have under the lease. Where co-tenants join in executing a contract of lease, or sale, or deed, each is dealing with his own interest just as directly as though he executed a separate conveyance. In the absence of language in the conveyance which either expressly or impliedly makes one co-tenant the agent of the other, the one obtains no authority to speak or act for the other. Where there is a joint interest and a joint duty ( De Witt v. Prescott, 51 Mich. 298), and where each joint contractor may perform the contract and bind the others, notice to one is notice to all, and whatever one joint contractor does under the authority of the contract binds all. But where co-tenants for convenience and to save expense unite in executing one conveyance, each is acting independently of the other, and any one desiring to bind either by notice or otherwise must deal with him alone.

We are not dealing with joint lessees where each may beheld to perform the contract. We are dealing with a provision where each co-tenant agrees to sell his interest and has conferred no authority in his contract upon the other to waive any provision for him. This contract is barren of any language showing the intention to establish the relation of principal and agent. It follows that if the lessee desired to take advantage of his option, either to renew or to purchase, he should have notified all the co-tenants of his election. 1 Clark & Skyles on Law of Agency, §§ 2, 92; Blood v. Goodrich, 9 Wend. (N. Y.) 68; Jackson v. Moore, 94 App. Div. (N. Y.) 504; Tainter v. Cole, 120 Mass. 162; Tipping v. Robbins, 64 Wis. 546; 17 Am. & Eng. Enc. Law (2d Ed.), p. 673; 2 Current Law, pp. 1864, 1865; Moreland v. Strong, 115 Mich. 211.

Service upon the minor heir of Augusta Kaynor would have been valid. 18 Am. & Eng. Enc. Law (2d Ed.), p. 634.

Miner v. Lorman, 70 Mich. 173, is not in conflict with the above cases. In that case the contest arose between the tenants in common, one of whom had received all the rent and was sued by his co-tenant to recover his share.

If the execution of this agreement for renewal was not completed until May 25th, it of course did not affect the rights of the co-tenants, and Mr. Kaynor could bind no one thereby but himself. See authorities above cited, and also Pearis v. Covillaud, 6 Cal. 617. The record is silent as to when the agreement was delivered. All the record shows is that it was dated April 1st, and was acknowledged May 25th following. What is the presumption as to the date of its execution ? . Delivery was essential to complete the execution. Deeds and contracts in regard to land are frequently dated prior to the execution. The grantor or vendor retains the deed or contract in his possession until it is acknowledged. The presumption must be in such case that there was no complete execution until the date of the acknowledgment. The agreement in this case was a lease for 10 years and a contract to sell the land for a stated price at the option of the lessee and the vendee. The parties may well be held to have believed that the instrument should be executed with the formalities of a deed. We are asked to hold that the presumption is that the date in the body of the instrument controls the date of delivery and consequently of execution. I think the presumption is that the parties did not meet, sign, and deliver the deed until the date of the acknowledgment.

The contract of May 25th is valid as to the defendants Ansel and Levina, provided there are no fatal defects in the terms of the lease. The learned counsel for Ansel and Levina urge that inasmuch as the contract cannot be enforced as to the entire property, it cannot be enforced as to the undivided half of Ansel and Levina. They had a right to renew it as to their interest. Mr. Allen or his assignee could accept the renewal as to their interest if they chose to do so. It does not lie in their power to refuse a part because they cannot give the whole. Covell v. Cole, 16 Mich. 223; Work v. Welsh, 160 Ill. 468; Waters v. Travis, 9 Johns. (N. Y.) 460.

It is further objected that the contract is void for uncertainty as to the description of the right of way and as to the purchase price. If the contract left the price absolutely uncertain and to be determined by the subsequent agreement of the parties, the contract could not be enforced. But the contract fixes a maximum price, namely, $76 an acre. It requires no further negotiations or agreement to determine that price. They did agree that Mr. Allen could purchase the land at $75 an acre. He or his assignee has chosen to do so. An agreement to enter into a formal contract to take at least $750 worth of water per annum for 10 years was held valid. Drummond v. Crane, 159 Mass. 577. A guaranty to be responsible for any sum not exceeding $5,000 was held good. City Nat. Bank of Poughkeepsie v. Phelps, 86 N. Y. 484. So, a contract to buy 200 to 600 tons of rails was held good. Wheeler v. Railroad Co., 115 U. S. 29. The plain construction of the contract is that the lessors agreed to take $75 per acre if they could not agree upon a less price. It was in the power therefore of the lessees to purchase upon payment of that amount.

The provision for the right of way, we think, is limited to the lease, and does not extend to the right of purchase. There may have been reasons for the use of a passage across the two adjoining parcels of land during the existence of the lease which would not apply to absolute ownership. The provision is written in direct connection with the leasing part of the contract, and is a part of that clause. Then follows the clause providing for the right of purchase of “the within described premises,” plainly meaning the entire premises. There was no reference in this clause to a reservation of any right of way. This conclusion renders it unnecessary to determine the effect of the provision for a right of way, were it intended to be included in the deed to be executed when the right to purchase was exercised.

The decree should be affirmed as to the defendants Kaynor, with costs, and reversed as to the other defendants, with the costs of both courts.

Carpenter, J.

I approve the opinion of Justice Grant except in one particular, viz., he denies, while I affirm, that as to the heirs of Augusta Kaynor, deceased, the lease was legally renewed. Defendants Ansel and Augusta owned the land as tenants in common. They united in executing the first lease to Dee Allen. They described themselves therein as first parties. Allen was described therein as a second party. Ansel and Augusta were joint contractors in this lease. Jointly they agreed to renew it and to insert in said renewal an option whereby Allen might purchase, not their several, but their joint, interests in the property leased, and the promises of Allen in said lease were to them jointly and not severally. Between Ansel and Augusta there was therefore the relationship of joint contractors as well as the relationship of tenants in common. Allen under these circumstances could pay the rent to either, and either of them could discharge his obligation.

“Among joint obligees anyone may receive satisfaction for the entire obligation and execute a valid discharge therefor. The remedy of other joint obligees is against him and not against the one who has made payment to him.” 7 Am. & Eng. Enc. Law (2d Ed.), p. 102.

In support of this text numerous authorities are cited which fully sustain it. Though only one of these two joint contractors refused to convey, both would be liable for damages for they have jointly agreed to convey the entire title. Blood v. Goodrich, 9 Wend. (N. Y.) 68. The principle underlying these decisions is, in my judgment, applicable to this case and compels us to say that the notice given to defendant Ansel of Allen’s election to renew the lease was binding upon Augusta and her estate, not because she was a co-tenant, but because she was a co-contractor.

Since this opinion was prepared the case has been reargued and our attention called to authorities which expressly hold — and this is the vital proposition asserted in this opinion — that notice required by a contract is effective if given to one of several joint contractors. Detlor v. Holland, 57 Ohio St. 492; Baker v. Kellogg, 29 Ohio St. 663. See, also, Glenn v. Thompson, 75 Pa. 389; DeWitt v. Prescott, 51 Mich. 298.

The point is made that notice to Ansel Kaynor would not bind the heirs of Augusta because he was not their agent. I answer that the notice binds them, not because he was their agent, but because Augusta, having entered into a joint contract with Ansel, has in effect stipulated that the other party to that contract may serve the notice on Ansel.

My Brother Gea'nt makes the point that we should presume that the renewed lease, which bears date April 1st, was executed May 25th, the date of its acknowledgment. From this he infers that the lease was not renewed until after April 9th, the date when it should have been renewed. The date of the execution of the renewal lease is not controlling. The question is. Did Allen take the steps entitling him to a renewal ? This he could have done by informing defendant Ansel of his election to renew before April 9th. I submit that the language of the renewal lease indicates that he had done what was necessary to entitle him to such renewal, so far as defendant Ansel is concerned. Moreover, the briefs of each counsel in this case — and there are five briefs — proceed upon that assumption.

The circumstance that no instrument formally renewing the lease and option was executed by the heirs of Augusta Kaynor is unimportant. The contention that such an instrument should have been executed is answered by the maxim, “Equity regards that as done which ought to have been done,” for complainant’s assignor had done all that was required to entitle him to such renewal.

I think we should, therefore, find that Allen did notify defendant Ansel of his election to renew the lease. If lam right in the foregoing views, complainant is entitled to a decree.

McAlvay, C. J., and Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred with Carpenter, J.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    WEAVER v. RICHARDS.
    1. Evidence — Admissibility — Conversations with Third Person.
    In an action to recover commissions on the sale of real estate, the sale not having been consummated because of failure of defendant’s title, and one of the defenses being that plaintiff knew the state of the title, the testimony of defendant as to what his lawyers informed him regarding the title is immaterial, except in so far as defendant communicated that information to plaintiff.
    2. Principal and Agent — Knowledge of Agent — Notice to Principal — Scope of Agent’s Authority.
    On the issue whether plaintiff real estate broker produced a purchaser who would have taken defendant’s land, subject to certain reservations, but for a defect of title, a deed and abstract having been submitted to the purchaser’s attorney and by him rejected because of the state, of the title, an instruction that if the attorney saw the deed his knowledge of the reservations therein became the knowledge of the purchaser, and raised a presumption that the sale was not refused because of them, was erroneous, it not being claimed that the attorney was consulted with reference to anything but the title.
    3. Same — Cure of Error.
    A claim that the error in the instruction was cured by undisputed testimony that plaintiff in making the sale informed the purchasers of the reservations, and that the subsequent conduct of the parties is consistent with no other theory than that the reservations, upon whatever terms, were immaterial to the purchasers, is untenable, since such claim loses sight of the probability that, having found the title defective, the purchasers did not wish to purchase upon any terms, whence the reservations were not considered.
    é. Same — Cure of Error — Other Instruction.
    A subsequent instruction that plaintiff must prove that his purchaser knew of and consented to the reservations does not cure the previous one, since by it the court concluded the matter of the purchaser’s knowledge by imputing to him the knowledge of his attorney.
    5. Evidence — Competency.
    On the issue whether plaintiff real estate broker produced a purchaser who would have taken defendant’s land, subject to certain reservations, but for a defect in the title, a letter written by the intending buyer after his refusal to purchase, in which he states “this is the land we bought two years ago and you at that time could not give a clear title,” is not competent evidence that the buyer knew of the stipulated reser-
    . vations and deemed them immaterial.
    6. Brokers — Action for Commissions — Instructions.
    In an action to recover commissions on the sale of real estate, the purchaser having refused to complete the sale because of failure of title, an instruction that plaintiff cannot recover' if he knew defendant only held an option on the land was properly refused where before the bargain was made defendant received a deed and himself tendered a warranty deed to the intending purchaser.

      7. Trial — Instructions—Unimportant Error.
    In an action to recover commissions on the sale of real estate, the defenses being that the plaintiff did not produce a purchaser willing to take the land subject to certain reservations, and that plaintiff knew the condition of defendant’s title, an instruction that the Supreme Court had held that the title was imperfect, the fact being that the Court had only held that the record title was imperféct, was not prejudicial, the matter not having been called to the attention of the trial court.
    . Error to Emmet; Shepherd, J.
    Submitted June 6, 1907.
    (Docket No. 32.)
    Decided November 5, 1907.

      Assumpsit by John W. Weaver against George D. Richards for a commission for the sale of land. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      James F. Shepherd and Pailthorp & Hackney, for appellant.

      Halstead & Halstead, for appellee.
   Ostrander, J.

At a previous trial a judgment for defendant, directed by the court, was reversed and a new trial ordered. Weaver v. Richards, 144 Mich. 395 (6 L. R. A. [N. S.] 855). Upon the second trial, there was a verdict and judgment for the plaintiff, and defendant’s motion for a new trial was denied. It is plaintiff’s claim that he found for defendant a purchaser for certain lands, upon terms made by defendant, for the sum of $8,000, agreeably with a proposal that if he did so he should have all of the purchase price above $6,000; that the sale was not consummated because, and solely because, the title to a portion of the lands was defective. He seeks to recover in an action of assumpsit $2,000 with interest. Defendant pleaded the general issue. Upon the record which was before this court on the former appeal it was said:

“There was testimony justifying the submission to the jury of plaintiff’s claim, that- a contract for the sale of the premises by him upon commission was made, and that under that contract he had a right to understand that defendant-would exhibit or prove that he had a valid title to the premises.”

It appeared that the intending purchasers of the land submitted to their attorney the abstract of title and the deed tendered by defendant, and that he reported that the defendant had not, of record, title to certain interests. Whether the opinion was in this respect a correct one was the principal point considered by this court, and the ground of the decision was that the title, of record, was defective. The errors assigned upon the second trial which are discussed are:

“ (1) Said court erred in sustaining plaintiff’s objection to the following question put to George D. Richards, ‘ And what information did you get from them?’
“(2) Said court erred in overruling defendant’s objection to the admission in evidence of a letter from Sailing, Hanson & Go. to George D. Richards bearing date February 21, 1902, marked Exhibit 5.
“ (3) Said court erred in giving the following instruction to the jury:
‘“You are instructed that if Mr. Alexander saw the deed from Richards to Hanson and Michelson, and his testimony that he did is undisputed, his knowledge of the reservations written therein became the knowledge of his clients, and if the deal was not turned down on account of the reservations, then the reservations became immaterial. Under the undisputed evidence in this case the sole reason that the sale was not consummated was that the title was defective.’
(4) Said court erred in refusing to instruct the jury, as requested by defendant, as follows:
“ ‘You are instructed that if you find from the evidence that at the time of the alleged contract with the defendant, the plaintiff knew that the defendant had only an option to purchase the land referred to, and that, according to the agreement between the plaintiff and the defendant, sale was to be made by the plaintiff at not less than $6,000, and that the difference between the prioe mentioned in said option and said $6,000 was to be the property of the defendant, and the plaihtiff was to have the rest of the profit, if any, as his commission, you are instructed that under the evidence in this case the plaintiff cannot recover, and j’-our verdict will be for the defendant.’
“(5) Said court erred in giving the following instruction to the jury:
“ ‘That upon examination of the abstract it was found that defendant’s title was defective, that it was not clear and perfect. And here let me say that according to a decision of our Supreme Court the title was imperfect. That because of this the purchasers refused to take the lands and to pay the price agreed upon; that this was the sole reason that the sale was not completed and the purchase price paid, that is, the defect in the title.’
‘ ‘ (6) The court erred in overruling the motion for a new trial in said cause.”

These assignments will be considered in their order. We shall be aided by a brief reference to the principal issues of fact. It seems to be agreed that plaintiff was required to prove a sale upon the terms made by his principal, the defendant, and, further, that these terms were that the lands should be sold subject to certain reservations. It is denied that such a sale was made. It is agreed that plaintiff was required to prove that the sale, it not having been consummated, was refused because the title of defendant was imperfect of record; was not a merchantable title. Defendant denies that such proof has been made and asserts, further, that plaintiff knew precisely the title defendant had. These issues the court submitted to the jury in instructions from which the following is taken:

“Plaintiff also claims that he found a purchaser, or purchasers, who were able, ready and willing to purchase said lands and pay the sum of $8,000 therefor, and that, having done so, he is entitled to $2,000, that being the difference between $6,000, the amount the option called for, and $8,000, the consideration the purchasers agreed to pay.
“ It is not claimed by plaintiff that under said agreement he was authorized to bargain for the sale of the full and complete title to said lands, as it is conceded he reserved all marl or mineral deposits and rights in or on said lands, and according to the letter of February 10th, written Weaver from Lansing, that could be legally claimed on account of being contiguous to these lands in question, that is, being in or under certain meandered lakes or otherwise adjoining said lands, and that he also reserved the right to enter upon said lands and construct thereon all necessary roads, railroads and canals required for the removal of said marl or mineral.
“You are instructed that in this case the burden of proof is upon the plaintiff. That before he is entitled to recover upon his theory he must not only satisfy you by a preponderance of the evidence that he found some one who was able, ready and willing to buy these lands and pay therefor, at least $6,000, but he must also satisfy you by a preponderance of the evidence that the purchaser so found knew that he was not buying the marl or other mineral deposits, if any, on said lands, and that defendant was not only reserving this interest in said lands, but also the right to enter upon said lands and construct thereon all necessary roads, railroads and canals required for the removal of said marl or minerals, and to enter upon said lands at any time to prospect, explore, prepare for or remove said marl or mineral, and with the full knowledge of these facts was not only able but was ready and willing to make said purchase; and if the plaintiff has failed to establish either one or both of these facts, by a fair preponderance of the evidence, your verdict will be for the defendant. Is that plain ?
“You are further instructed that if you shall find from the evidence that the plaintiff, through conversations had from time to time with the defendant prior to February 10, 1900, or from any other source, learned of the alleged defects in the defendant’s title, he is presumed to have contracted with reference thereto and cannot now recover, even if you should find that he procured a purchaser for said lands who, in the absence of said defects, would have purchased the same subject to the reservations by the defendant of the marl and mineral deposits mentioned in the agreement between the parties hereto, together with the right to enter upon said lands to construct roads, railroads and canals for the removal of the same.
“ The plaintiff presents one theory, and claims that he has fulfilled his contract. That he was to find a purchaser and have all above $6,000 that he might procure for this land. , He claims that he procured the purchaser, but that the title which he supposed was perfect — which defendant had recommended to him to be perfect — was found to be imperfect, and therefore his labor was lost, and that defendant is liable.
“The defendant says that a purchaser was not procured, according to the evidence. He says it is not proven that Hanson & Michelson knew of this reservation, and accepted the contract so far as that was concerned, but only rejected it because the title was imperfect He says that was not proven.
“ He further says that Mr. Weaver knew of this defect in the title as well as he did, that is, he knew all the facts —that the alleged defects were pointed out — that he had just as good means of knowing as Mr. Richards himself.
‘ ‘ Either of these two reasons, if correct, will constitute a good defense to the action. If neither is correct, then the plaintiff is entitled to recover.”

Defendant testified he consulted a firm of lawyers at Cheboygan in regard to the title to the lands, and was asked what information he got from them. An objection that incompetent and immaterial testimony was asked for was made. Counsel then stated it was proposed to show that the information was communicated to plaintiff. The objection was sustained and an exception taken. Immediately, without objection, the witness was permitted to state so much of the information obtained from the lawyers concerning the title to the lands as he communicated to plaintiff. Plaintiff’s knowledge of the state of the title was material. What the lawyers told defendant about it, plaintiff being absent, was not material unless defendant communicated it to plaintiff. No error appears.

Plaintiff testified that he found a purchaser ready and willing to take the lands and able to pay for them, with a good title. He testified, also, that he told one of the purchasers that—

Mr. Richards had made up his mind that he would include the land with the timber [there had been some talk about sale of the timber alone] and reserve the mineral or whatever there might be on those lands and give a warranty deed and he wanted to know what price and I closed the price at $8,000.”

That the purchaser said: '

“ That is a pretty good price and we will take the lands for a good title.”

Defendant made a deed of the lands, the terms of which were known to and not disapproved by plaintiff, in which express reservation is made of marl, mineral and gas deposits with right to enter upon the land and explore the same and remove and manufacture said deposits and for that purpose to build roads, railroads, canals, etc. This deed and an abstract of title were left at a bank and were, by the bank, later delivered to Mr. Alexander, attorney -for the prospective buyers, for examination. He went to the office of the register of deeds and there compared and examined the records with the abstract. He gave an opinion unfavorable to defendant’s record title. His objection was based solely upon the state of the record title. It does not appear that he noticed or noted the reservations in the deed or that he had any information of the terms of the proposed sale except as he learned them, if he did so learn them, from the deed itself. It is not pretended that he had anything to do with the bargain itself — the terms of sale — or was consulted with reference thereto. There is no direct testimony tending to prove that either of the prospective buyers ever read the deed. It was returned to defendant by the bank. No reasons for returning the deed were given to defendant in writing; whether any reasons were ever given him, by the purchaser, does not appear, except by certain correspondence now to be referred to. Defendant, over objection, introduced a letter, dated October 22, 1901 (the ■ sale was refused in April, 1900), written by one of the persons named in the deed as grantee, to defendant, in reply, it is evident, to a letter from defendant. In this letter it is stated that the grantees were willing to buy the land at the original price of $8 per acre; that if defendant wanted to reserve the marl he might do so.

“ What we want is a straight warranty deed and we will give you a contract back for the marl bed if there is any.”

Plaintiff, on cross-examination of defendant, introduced, over objection, a letter from said prospective purchasers, dated February 21, 1902, written to defendant, by the terms of which defendant was offered $9,000 for the lands, cash, “ if you can give us a good title.” It is recited therein that the land is the same—

* ‘ That we bought two years ago through Mr. Weaver and you at that time could not give us a clear title.”

This being the testimony, the court instructed the jury, as has been already indicated, with respect to the knowledge to be imputed to said purchasers from the fact that the attorney saw the deed.

The rule of law by which the instruction must be tested is thus stated in Mechem on Agency, § 735:

“This rule which imputes to the principal the knowledge possessed by the agent, applies only to cases where the knowledge is possessed by an agent within the scope of whose authority the subject-matter lies. In other words, the knowledge or notice must come to an agent who has authority to deal in reference to those matters which the knowledge or notice affects, and whose duty it therefore is to communicate it to his principal. * * * No duty of communication would rest upon an agent where, from the nature of the acts to be performed by him, the knowledge or notice would appear to be of no use or interest to the principal.”

See, also, Larzelere v. Starkweather, 38 Mich. 96; Ewell’s Evans on Agency, p. 164; Wade on Notice, § 673.

It is said in argument that if there was error in the instruction, it was cured by the undisputed testimony that plaintiff, in making the sale, stated to the purchasers, or to one of them, that defendant would reserve the mineral, and that the subsequent conduct of the parties is consistent only with the theory that the reservation of minerals, upon whatever terms, was immaterial to the intending buyers. This argument loses sight of the possibility and probability that, having found the title defective, in which case they did not wish to purchase upon any terms, the question of reservations, even if the purchasers knew the terms of the deed, would not be considered at all. It is said, also, that the charge of the court to the effect that plaintiff must prove that his purchaser knew of and consented to the reservations, cures any error in this portion of the charge. The answer to this argument is that the court, in effect, in the instruction complained about, concluded the matter of the purchaser’s knowledge. He said, in substance, that the purchasers did know of the reservations in the deed if Mr. Alexander saw the deed, and that his testimony that he did was undisputed. This instruction, taken as a whole, and especially when the last sentence is considered, is open to the construction that if the jury found a single fact, namely, that the attorney saw the deed, to exist, it was conclusively established that the purchasers knew of the reservations, did not refuse the sale on account of them, and, inferentially, would have completed it if the title had been reported to be perfect. We think that, as the testimony stood, such a conclusion would not, as matter of law, be inevitable. It does not appear that the persons to whom sale was to be made were witnesses, and we are unable to perceive the bearing and materiality, upon this point, of the letter of February 21, 1902. It was written two years after the alleged transaction, and while it states that at the earlier date de-. fendant could not give a good title, describes the lands as those bought two years ago through plaintiff, is written apparently with the assumption that the defective title had not been cured, and makes no mention of any reservations in a former deed, it is not competent evidence that such reservations came to the knowledge of the writers and were deemed immaterial. Indeed, read with the letter of October 22, 1901, the impression made is that the reservations made in the deed were not acceptable, or accepted. But treating the letter as testimony which should not have been considered does not curé the error committed in the instruction which imputed the knowledge of the attorney to his principals.

We do not find the so-called option in the record. Defendant himself testified that he at one time told plaintiff he had only an option and that the lands were not then ready to be offered, and that plaintiff requested him, whenever he thought the title was all right, to give him a chance to buy them. Afterwards defendant received a deed for the lands, and he himself tendered a warranty deed to the purchasers containing the reservations referred to. We cannot say it was error to refuse the instruction.

This statement was made by- the trial judge in stating the claim of the plaintiff. The point made about it is that the Supreme Court had not said that the title was imperfect but only that the record title was imperfect. Counsel are correct about the fact. We are not impressed that the mistake was prejudicial. No doubt correction would have been made at once if the matter had been called to the attention of the judge.

As the judgment must be reversed, we do not consider the question, presented on the motion for a new trial, of the weight of evidence.

The judgment is reversed, and a new trial ordered.

Carpenter, Grant, Blair, and Montgomery, JJ., concurred.


author: Hooker, J.

text:
    JONES v. GABLE.
    1. Drains —Assessment of Benefits — Overassessment — Who Entitled to Raise Objection.'
    The objection that certain lands are overassessed for the benefits of a drain can only be raised by the owners of those lands, and not by the owners of other lands assessed for the drain.
    2. Same — Assessment of Benefits — Jurisdiction.
    The drain commissioner, and not the court, is made the judge of what lands are benefited by a drain, and the proportionate amounts they should be assessed, and though his judgment is open to question, and his mistakes to correction, this ■ must ordinarily be done through the board of review, as pointed out by the statute (Act No. 272, Pub. Acts 1899, chap. 5, §3).

      3. Same — Review—Neglect op Statutory Remedy.
    Where a board of review was appointed in the course of drain- ■ age proceedings and a report filed, and it does not appear that the complainants, or any one of them, appeared before the board and complained of the apportionment of benefits, or that a certiorari was taken as provided by the statute, and no fraud appears, the legality of the drain cannot be questioned in any action at law or suit in equity. (Act No. 272, Pub. Acts 1899, chap. 5, § 3.)
    4. Same — Review—Remedy in Equity. ,
    Aside from any statutory prohibition, equity will not interfere, in the matter of a special assessment for a drain, at the instance of one who has neglected to invoke his legal statutory remedies.
    5. Same — Record—Piling—Time.
    The record of the proceedings to establish a drain is not required to be filed with the county clerk before the assessment of benefits is made by the commissioner.
    6. Same — Assessment—Right to Question.
    Where a landowner, by his failure to invoke statutory remedies, has lost his right to question the apportionment of benefits for a drain, and the determination of what lands are benefited, he cannot question an assessment made in conformity to such apportionment upon any ground that was open to him before.
    7. Same — Public Improvements — Special Assessments — Right to Question — Laches.
    Where a landowner has chosen to defer his attack upon a special assessment until he has secured a benefit from the full or partial completion of the work for which he is assessed, his laches forbids equitable redress, and this rule does not depend upon his failure to avail himself, of a statutory remedy.
    Appeal from Allegan; Padgbam, J.
    Submitted June 13, 1907.
    (Docket No. 19.)
    Decided November 5, 1907.
    Bill by Aaron Jones and others against Elmer E. Gable, drain commissioner, and others, to set aside an assessment for a drain tax. Prom a decree dismissing the bill, complainants appeal.
    Affirmed.

      Thompson & Temple, for complainants.
    O. 8. Cross, Prosecuting Attorney, for defendants.
   Hooker, J.

The complainants (appellants) are owners of lands severally assessed for benefits from a drain established in 1904. They have united, not in opposition to the construction of the drain, which their brief states that they desire, but to overturn the apportionment of benefits and tax levy based thereon, filing one bill to remove this cloud from their several premises. The brief admits that the claim ■ is a novel one. The bill prays a decree setting aside the apportionment and assessment, ordering a new assessment by the drain commissioner, to include all property upon this drain and several others to which it furnishes an improved outlet, and lands in another county which it is claimed will be benefited by said improved outlet, and that, after making said new apportionment, he and the drain assessors unite in a new assessment based on said new apportionment, and that the collection of the former assessment be restrained. Oral testimony was introduced tending to show that' some lands benefited by the drain were not included in the apportionment and assessment, that some were assessed disproportionately, and that others were doubly assessed.

It is difficult to understand how these complainants can suffer by reason of the double or over assessment of lands belonging to others and we need not consider that question. Furthermore, the commissioner, and not the court, is made the judge of what lands are benefited, and the proportionate amounts that they should be assessed. It is true that his judgment is open to question, and his mistakes to correction, but this must ordinarily be done in the way pointed out by statute, viz., through the board of review. Act No. 272, Pub. Acts 1899, chap. 5, § 3. A board of review was appointed in the course of these proceedings, and a report was filed. It does not appear that the complainants or any one of them appeared before the board and complained of the apportionment, or that a certiorari was taken at any stage of the proceedings as might have been done under said act. Under these circumstances, especially in the absence of fraud, the legality of the drain cannot be questioned in any action at law or suit in equity. Act No. 272, Pub. Acts 1899, chap. 5, § 3.

The record shows that the return of the special commissioner was made on April 26,1904, that the final order of determination, apportionment of benefits, and notice of drain letting, were had upon July 18, 1904, and the special assessment was dated September 10, 1904, all of the papers being filed with the county clerk on September 27, 1904. The bill was sworn to on February 23, 1905. Aside from any statutory prohibition, the court of equity will not interfere at the instance of one who has neglected to invoke his legal statutory remedies in matters of taxation. 2 Cooley on Taxation (3d Ed.), p. 1411. In Brown v. City of Grand Rapids, 83 Mich. 101, a bill was filed to remove a cloud caused by a sale of land in satisfaction of a special assessment. The complainant having failed to appear before a statutory reviewing board, relief was denied. The court cited Williams v. City of Saginaw, 51 Mich. 120; Comstock v. City of Grand Rapids, 54 Mich. 641; Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 510. In Nelson v. City of Saginaw, 106 Mich. 659, we applied the rule to defective sewer proceedings, complainant not having sought relief at the hands of the board of review, provided by the statute. See, also, Moore v. McIntyre, 110 Mich. 237; Auditor General v. Melze, 124 Mich. 285; Horn v. Board of Sup’rs of Livingston Co., 135 Mich. 553; Crandall v. McElheny, 146 Mich. 191.

It is contended that some of the defects in this levy occurred after it was too late for the complainant to invoke statutory relief. These alleged defects are, that the assessment was made before the record was filed with the county clerk, that it was not signed, that the assessments were unequal, and that the record of the board of supervisors was defective. To these claims it may be said:

1. The record is not required to be filed before the assessment is made by the commissioner.

2. Having lost his right to question an apportionment of benefits, and the lands included, by his failure to invoke statutory remedies, a landowner cannot question an assessment made in conformity to said apportionment upon any ground that was open to him before.

The other complaints are technical, viz., failure of assessors to sign the assessment, and alleged defects in the journal of the board of supervisors. A complete answer to the claim to relief upon these grounds is found in numerous cases which deny relief where a landowner has chosen to defer his attack until he has secured a benefit from the full or partial completion of the work for which he is assessed. His laches forbids equitable redress, and this rule does not depend upon his failure to avail himself of a statutory remedy. Byram v. City of Detroit, 50 Mich. 56; Harwood v. Huntoon, 51 Mich. 639; Lundbom v. City of Manistee, 93 Mich. 170; Goodwillie v. City of Detroit, 103 Mich. 285; Fitzhugh v. Bay City, 109 Mich. 581; Atwell v. Barnes, 109 Mich. 10; Moore v. McIntyre, 110 Mich. 237; Smith v. Carlow, 114 Mich. 67; Township of Walker v. Thomas, 123 Mich. 290; Township of Swan Creek v. Brown, 130 Mich. 382; Constantine v. City of Albion, 148 Mich. 403.

The decree is affirmed.

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


author: Montgomery, J.

text:
    BLOUNT v. EAMES.
    Equity — Clean Hands — Participation in Illegal Proceeding —Estoppel to Allege Fraud — Independent Fraud.
    Complainant’s father, after conveying his homestead in trust for his wife, died intestate and insolvent and his wife was appointed administratrix. Subsequently she received a conveyance of the homestead from the trustee and sold it to complainant. Later complainant, in reliance on misrepresentations by her brother as to her legal rights, participated in proceedings culminating in the sale of the property at' administrator’s sale as the property of the estate, at which the brother bought in the name of defendant, another brother, who held a claim against the estate; the purpose of the proceedings, as represented to complainant, being to divest the estate of the title, and vest it in complainant. Simultaneous with the execution of the administrator’s deed, defendant executed a deed to complainant and delivered it to the brother, who acted for complainant, but the brother refused to deliver it to complainant except upon the payment to him of a sum of money; and after his death defendant caused the administrator’s deed to be recorded and executed one to his wife which he also recorded. On a bill by complainant against defendant and his wife to remove cloud, held:

    (1) That if the title had been in the estate as represented to complainant there would have been nothing improper in the proceedings taken to divest it, and nothing against conscience in the agreement of defendant to reconvey, though such agreement might not have been enforceable before delivery of the deed to the brother for complainant.
    (2) That complainant’s acts having been procured by the false representations of her brother, she was not estopped to deny that the title was in the estate.
    (3) That whatever title defendant received having passed out of him on the execution of the deed to complainant and its delivery to complainant’s agent, no harm could come to her title until defendant entered upon a new campaign of fraud, and he having done this by recording one deed and withholding the other, complainant was entitled to the aid of equity to set-the transaction aside,, notwithstanding her participation in the illegal proceeding which culminated in the administrator’s deed.

      Appeal from Kalamazoo; Adams, J.
    Submitted June 19, 1907.
    (Docket No. 16.)
    Decided November 5, 1907.
    Bill by Lucia E. Blount against Elisha D. Eames and Alice Waltz Eames to set aside certain deeds, and to remove a cloud from the title to land. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      A. M. & G. H. Stearns, for complainant.

      Garney & Yaple {Alfred'J. Mills, of counsel), for defendants.
   Montgomery, J.

The bill in this case was filed to set aside two conveyances, the one from the administratrix of the estate of Lovett Eames, deceased, to defendant Elisha D. Eames, and the other from Elisha D. Eames to the defendant Alice Waltz Eames, as constituting a cloud upon the title of complainant. The court below refused relief to complainant on the ground that she did not come into court with clean hands. '

The facts in the case are as follows: The property in question was the homestead residence of Lovett Eames, who died intestate September 6, 1863. His widow, Lucy C. Eames, was appointed administratrix of his estate. Lovett Eames was indebted in a large amount at the time of his death. Claims were proven to the amount of over $50,000; one claim, being in favor of Elisha D. Eames, was allowed at $2,800. The land in question had been conveyed by Lovett Eames and wife on the 15th of September, 1859, by warranty deed to Elijah W. Morgan. The briefs refer to an instrument in the nature of a defeasance which is said by defendants’ counsel to have given this conveyance the character of a mortgage. The instrument which is produced and introduced by defendants’ counsel and called a defeasance paper is not signed by Elijah W. Morgan but is signed by Lovett Eames. It recites a conveyance of not only the homestead property but of his machine shops and appurtenances, and also recites the execution of a chattel mortgage of personal property. It then provides that Eames shall pay certain moneys and perform certain covenants, and upon his doing so Morgan agrees that he will reconvey to Eames the machine shop and appurtenances and release the chattel mortgage; but the instrument further recites •that the homestead—

“ Having been conveyed to Morgan in trust and in satisfaction of all claims of every kind held by Elisha Morgan, the father of said E. W. Morgan and Lucy C. Eames, as well as security as aforesaid, and said E. W. Morgan being authorized by said Elisha Morgan so to take said land and to convey the same to said Lucy C. Eames and her heirs and assigns as an advancement to her by her father, the said homestead is to be conveyed by said E. W. Morgan (when such indebtedness shall have been paid) to said Lucy C. Eames and her heirs and assigns.”

It will be seen therefore that this conveyance was something more than a conveyance by way of mortgage; it was a conveyance upon trust which upon the face of it purported to convey the title to the homestead in satisfaction of claims held by Elisha Morgan and upon the express trust that the land should be conveyed to Lucy C. Eames as an advancement from her father, Elisha Morgan.

On the 14th of May, 1874, Elijah W. Morgan conveyed to Lucy 0. Eames the homestead in question, the description in the deed being followed by this statement: ‘ ‘ the same having been conveyed to me in trust for the use and benefit of said Lucy C. Eames.” Lucy 0. Eames continued to reside upon the homestead, but in May, 1875, conveyed the east six rods to Henry F. and Lucia E. Blount, and the remainder was conveyed on August 12, 1878, to Lucia E. Blount. Henry F. Blount quitclaimed to Lucia E. Blount in September, 1885. In 1878 Lucia E. Blount and Henry F. Blount executed a mortgage to Lucy C. Eames in the sum of $4,500 in payment of the property in question. Mrs. Eames continued to reside upon the premises but in recognition of complainant’s title, the complainant spending some time each year upon the premises and making payments upon the mortgage from time to time.

In. 1896 Lucy C. Eames as administratrix of Lovett Eames filed a bill against Charles H. Manley, administrator of the estate of Elijah W. Morgan, deceased, in the circuit court in chancery for Kalamazoo county, alleging that the conveyance from Lovett Eames to said Morgan was fraudulent as to creditors. The decree of the court declared the deed to be fraudulent as to creditors as a conveyance, but confirmed it as a mortgage. The case was appealed to this court and the decree reversed and the bill dismissed upon grounds not affecting the real question determined in the court below. Eames v. Manley, 121 Mich. 300. The complainant was not a party to this proceeding although the conveyance from Lucy C. Eames to her was of record.

The present bill alleges that after the decree of the circuit court in said case was had Wilfred Eames, complainant’s brother, then living in Kalamazoo, represented to complainant that her title was. defective on account of said proceedings, and that it would be necessary in order to perfect her title to have the premises sold at administrator’s sale, and recommended that she permit the administratrix of the estate of Lovett Eames to procure a sale of the same to be bid in by her brother Elisha D. Eames, of Watertown, N. Y., who should then deed the same to complainant. Complainant avers that she was ignorant of the matters pertaining to the title and to the law concerning the same, and having confidence in her brother’s honesty and judgment she consented to this arrangement. This was accordingly done. The petition was filed, order procured, sale made, conveyance executed to Elisha D. Eames, and a deed running from Elisha D. Eames to complainant was executed and returned to Wilfred Eames. During all this time Wilfred Eames acted for complainant. When the deeds got back into his possession he demanded of complainant, as a condition to delivering the deeds to her, that she pay him $1,500 in cash, on the pretense that he had some claim against her husband. At this time Elisha D. EameS' made no claim to the property. Wilfred Eames having died in the meantime, his administrator insisted that some sum of money at least should be paid for the deeds and refused to deliver them up. At this time it would seem that defendant Elisha D. Eanaes was insisting that the deeds should be delivered. Shortly after he appears to have had a change of heart and made a conveyance of this property to his wife, the co-defendant. The question is whether the case is one for the application of the rule.that a party who has violated conscience or good faith should find the doors of the court shut against him.

It is to be noted, first, that complainant .was ignorant of her rights and was led into consenting to the action which was taken in complete ignorance of her rights. Her brother in whom she reposed confidence assured her that this proceeding was essential to protect her title. Upon this record so far as anything discloses the contrary, had the title in fact been in Lovett Eames, as represented by Wilfred Eames, there would have been nothing improper in the proceedings taken to divest the estate of the title, and while the contract between complainant and Elisha D. Eames for a reconveyance might not have been enforceable, there would have been nothing against conscience in such an agreement so far as complainant is concerned. But, furthermore, the contract would have been enforceable at any time after the execution of a deed by Elisha D. Eames and a delivery of it to complainant’s agent, Wilfred Eames.

It was the theory of the answer that the conveyance from the administratrix to Elisha D. Eames was valid, and that the consideration which passed to the estate was the amount of the claims proved by Elisha D. Eames against the estate of Lovett Eames. The evidence upon the trial does not support this theory, and it does appear that the conveyance was made without any payment to the administratrix. In this respect the transaction was irregular and to the extent that the complainant was a party to. it she may be said to have been guilty of unconscionable conduct. As to the claim that her participation in this proceeding estops her from now asserting that the title to the homestead was not in the estate of Lovett Eames, we think the answer may be found in the fact that whatever steps she took in connection with the proceedings in the probate court were taken in ignorance of her existing legal rights. In fact by a false representation as to what were her existing legal rights Wilfred Eames was enabled to procure her assent to these proceedings. Under such circumstances she would not be estopped. Renard v. Clink, 91 Mich. 1.

The question of whether complainant by assenting to the irregular proceedings in the probate court has placed herself in a position which precludes the court from relieving her in this case is one of somewhat greater difficulty. It is very doubtful if complainant was guilty of any intentional wrong or understood the force of her act. But she did participate in the proceedings to the extent of signing the bond of the administrator. What remedy the creditors of the estate may have is not before us. It does appear that, whatever of wrong the parties may have been guilty of, • when the deed was executed by Elisha D. Eames, apparently simultaneously with the execution of the administrator’s deed to him, and both were returned to Wilfred Eames, who was the agent of complainant in the matter, no harm could come to complainant’s title whether the deeds were delivered to complainant or both were destroyed. To work- injury to the complainant after this transaction was fully consummated it was necessary that the defendant Elisha D. Eames should enter upon a new campaign of fraud. If the title vested in him by the administrator’s deed, it passed out of him by the execution by him of a deed to complainant and the delivery of the- same to her agent, Wilfred Eames. But this having been withheld from record, and being found in the possession of Wilfred Eames at his death, afforded an opportunity to record the one, withhold the other, and becloud the complainant’s title by a conveyance to the defendant Alice W. Eames. We think this constituted a new fraud which clouded complainant’s title, and that the complainant is entitled to invoke the aid of the court to set aside this transaction.

The decree will be reversed and a decree entered in favor of complainant, quieting her title as against both defendants.

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


text:
    HABINA v. TWIN CITY GENERAL ELECTRIC CO.
    1. Appeal and Error — Review—Questions Considered.
    Where the trial judge in directing a verdict for defendant stated that if he regarded the proofs sufficient to sustain a verdict for plaintiff he should permit an amendment of the declaration to conform to the proofs, the objection of variance is not open for the consideration of this court on error.
    2. Same — Presumptions—Theory Below — Conolusiveness of Findings.
    In an action for negligence against the occupant of certain lands, the court charged that there was no question but that the defendant had the right to occupy the property, and that there was sufficient testimony to show that it had used the property for a long term of years for the purposes set forth in the declaration. Testimony was introduced tending to prove that defendant was the lessee of the entire premises and paid rent therefor, and neither in‘requests to charge nor in the reasons given for a new trial was the theory presented that defendant was a mere licensee. The errors assigned did not raise the question, and none of them was based upon the rulings admitting the testimony tending to prove the defendant to be a lessee of the land. Held, that as a matter of practice this court on review should regard the finding made by the lower court to be conclusive.
    3. Negligence — Evidence—Occupancy of Land — Character of Use.
    In an action for negligence against the occupant of certain lands, evidence examined, and held, to show conclusively that defendant’s occupancy and use of the land was visible and constant and, for purposes of its business, exclusive, and that the use made of it by plaintiff and the public was merely casual.
    4. Same — Unenclosed Lands — Rights of Public.
    Where a power company by permission of the owner occupied certain unenclosed lands adjoining its plant, such occupancy being visible and constant, and, for the purposes of its business, exclusive, the fact that it did not deny the public the privilege of traveling over the lands in any direction not obstructed by its use did not impart to the lands the character of a highway and give to individual members of the public rights similar to their rights in the highway.
    5. Same — Trespassers—Naked Licensees — Liability of Landowner.
    A landowner is not liable for an injury sustained by a naked licensee from falling, while in the exercise of proper care, into an unguarded ditch upon his land unless his conduct in opening the ditch and leaving it unguarded at the point where the accident occurred was such a change in the condition of the premises as indicated a reckless and wanton disregard of the safety of the plaintiff and others.
    6. Same.
    Defendant electric company, by permission of the owner, occupied certain unenclosed lands adjoining its power plant for storing materials and fuel and for piling ashes, and across it laid a pipe line for the purpose of conducting waste steam and hot water from the plant. The public, including plaintiff, was accustomed to cross it at will in any direction not obstructed by defendant’s use, but no path or way existed at the point where plaintiff was injured. Defendant, having occasion to repair its pipe line, opened the ditch in which it ' was laid and left if open overnight without barriers, and plaintiff, in attempting to cross the land in the night, fell into the ditch and was scalded. Held, that assuming that plaintiff was a licensee, defendant owed her no duty to notify her of a necessary change in the condition of its premises, and was not liable for her injury though there were no barriers.
    Error to Gogebic; Haire, J.
    Submitted June 19, 1907.
    (Docket No. 25.)
    Decided November 5, 1907.
    Case by Annie Habina, by next friend, against the Twin City General Electric Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Julius J. Patek (Charles F. Button and D. B. Nash, of counsel), for appellant.

      Charles M. Humphrey, for.appellee.
   Ostrander, J.

Both parties introduced testimony at the trial, a verdict for defendant was directed, and a motion for a new trial denied. It is averred in the declaration that across certain unenclosed lands west of and adjoining the power house of defendant there was—

“A permissive right of way, a regularly traveled route, over which the general public in vehicles and on foot, night and day, was accustomed to pass and repass without let or hindrance, and with entire acquiescence of the owners and lessees of said lands and persons in possession thereof, and of which, said permissive right of way and of the custom of the public to travel over and thereon said defendant had full knowledge.” p

That the defendant caused a dangerous ditch or excavation to be dug across the lands “so used as a permissive right of way as aforesaid,” and to be filled with boiling water, raising a duty to place gates or barriers around the ditch or to place lights or signals to warn travelers “who might have occasion to pass over said permissive way ” of the existence of the ditch. Neglect to perform this duty is averred, and that plaintiff, nine years of age, who had been accustomed to use and travel “this permissive right of way,” in ignorance of the existence of the ditch and while exercising due care and “ while traveling over said route,” in the night-time, fell into the ditch and was burned by the hot water.

It was not claimed in the opening statement of counsel for plaintiff, or attempted to be proved, that “a permissive right of way, a regularly traveled route, over which the general public in vehicles and on foot, night and day, was accustomed to pass and repass,” existed at or near the place where the child was injured, or that the child in traveling over the land upon the occasion in question was following or attempting to follow any path or way, permissive or other. On the contrary, at the trial, and here, her asserted right is predicated upon a condition of things described by her counsel in his opening as follows:

“The evidence will show that for about 15 years last past people have been passing and repassing over these lands in every direction at all hours of the day and night without any objection on the part of the owners of the same, nor without any objection on the part of anybody.”

This alleged condition is again stated in the brief—

“The evidence further clearly shows that the defendant had knowledge of the fact — that the neighboring people and the general public, as well as little children of tender years, were accustomed to come upon said premises, and pass and'repass over the same in various directions, and in various manners, according as their convenience might indicate, and that little children — including the plaintiff — were accustomed to come upon said premises to play and see things which seemed novel to them, and that the defendant had reasonable cause to believe that there existed a strong probability that such children would at any time come upon said premises, as well as the neighboring people and general public, and be exposed to danger.”

It was a further theory of counsel for plaintiff that defendant’s use of the premises in question was limited and was confined to various fractional portions of the whole, under some parol arrangement with the owners or lessees thereof; that it was not exclusive of the right of others, including plaintiff, to go upon and pass over the premises; that defendant was a licensee with general license to enter upon said premises and use portions thereof as its business might require, but had no authority to exclude others from going upon and passing over those portions not actually appropriated to its use. These conditions being established, it was supposed to follow, as matter of law, that defendant had not the right to open a ditch at any point upon the land where members of the public might pass without giving proper notice of changed conditions. In other words, the argument made in this court is to the effect that the rule of Corby v. Hill, 4 C. B. (N. S.) 556, that neither the owner of property nor a third person is justified in obstructing, dangerously, a private way over which the public is accustomed to travel, shall be applied to the entire of the premises in question here. See, also, for a statement of the rule, Wharton on Negligence (2d Ed.), § 349. The trial judge having stated that if he regarded the proofs sufficient to sustain a verdict for plaintiff he should permit an amendment of the declaration to conform to the proofs, the objection of variance is not for our consideration. There are two reasons why the rule of Corby v. Hill, supra, and like cases, has no application. Defendant was not a mere licensee of the parts of the land which it actually occupied. Testimony was introduced tending to prove that defendant, as to the owners of the land, was lessee of the entire premises and at and before the time of the injury to plaintiff paid rent therefor. The trial judge said, in his charge to the jury:

“ I take it that there is no question that the defendant in this case has the right to occupy this property. There is sufficient testimony going to show that it has used it for a long number of years for the purposes set forth and described in the declaration; using it for the general purpose of piling wood, dumping ashes and things like that.”

Neither in requests to charge nor in the reasons given for a new trial do we find the theory presented that defendant was a mere licensee. The errors assigned do not raise the question, and none of them is based upon the rulings admitting the testimony tending to prove defendant to be lessee of the land. As matter of practice, we should regard the finding made by the court to be conclusive.

But a description of the premises and of the use made of them by defendant and by the public is equally conclusive of the exclusive character of the occupancy by defendant and of the casual nature of the public use. The premises are not enclosed, lie directly west of and are used with defendant’s power plant, are 300 feet in length north and south and 150 feet in width, abut upon the north, south, and west sides upon streets, upon two of which — the north and west — are sidewalks. They have been used by defendant for 15 years. A wagon road runs north and south through the land just west of the power house, branching as it approaches the south boundary. About 90 feet south of Pine street, and 98 feet west of the west wall of the power house, is a tank about 15 feet high, which had been in position for four or five years, connected with the power house by a pipe laid underground, conducting hot water and waste steam from heaters and the boilers. From the tank an open ditch runs west to and under the sidewalk, serving, it is assumed, as a channel for water which overflows the tank. The reason for constructing the tank was that some of the people of the neighborhood came to that point to get hot water and it was feared that some of them might be injured. Thereafter those who came to get hot water took it from the ditch at or near the sidewalk where the stream is so small that a dipper must be used. For 15 years the ashes from the power house have been distributed over the space west of the power house and west of the wagon road referred to, and they extended nearly to the sidewalk on the west. In the winter, cordwood is piled in the space lying south of the south line of the power house, covering about one-half of the premises. As it becomes -dry, the wood is consumed in the plant and' by October is all, or nearly all of it, gone. Until more is drawn, the space is • vacant except for the timbers upon which the wood is piled. At the time of the plaintiff’s injury, there was a pile of telephone poles §0 feet long near the sidewalk on the north side and about midway of the premises. Just west of the wagon road and north of the pipe line. described was a considerable pile of slabs. There were two parcels of level ground, one in the wood yard proper and one north of the tank, on which boys had sometimes played ball. Plaintiff had at different times been upon and across the premises. There was testimony tending to prove that there were some paths through the ground where the wood was piled, one near the sidewalk west of the tank, and that, to some extent and as the condition of the ground and the material upon it permitted, people had for many years crossed the premises as they pleased from the point at which they reached them to a convenient point of departure from them.

Two or three days prior to the day when the plaintiff was injured, for the purpose of repairing a defective pipe, defendant opened the trench or ditch in which it had been laid, from a point three feet or thereabouts easterly of the tank to the west line of the power house. The ditch was about two feet wide, about two feet deep at the power house and three feet deep at the tank, and hot water flowed through it. Barriers were placed where the ditch crossed the road. No other barriers were erected. On the evening of October 28, 1904, plaintiff, in company with other girls, walked to the north on the sidewalk on the west side of the premises to or near railroad tracks, upon which a steam shovel used in excavating and loading ore was standing. It was a dark night. Some of the girls thought, or suspected, there was a man in the steam shovel, and, becoming frightened, they ran for their respective homes. Plaintiff lived on Oak street about south of the east side of the power house. She left the sidewalk, ran across the premises in question, fell into the open ditch, and was injured. She had no knowledge that the ditch had been opened.

It may happen, an instance is described in Beck v. Carter, 68 N. Y. 283, that an unoccupied lot in a public place is so exclusively, continuously, and generally used by the public, with the acquiescence of the owner, that as to him it is a highway and the rights of individual members of the public to be upon the premises is similar to their right to occupy the highway. This is not such a case. Defendant’s occupancy and use of the land was visible and constant, and for purposes of its business was exclusive. No path or way is shown to have existed at or over the land where the ditch was opened. The experience of plaintiff was that she had been upon and across these premises and had not been driven off or denied the privilege. It does not appear that she ever traveled over them in a path or way or in a direction used by any one else, or that she twice pursued the same way herself. The use made by plaintiff of the premises was the use made by others of the public who passed over them, outside of the open, traveled ways. It cannot he said that plaintiff or the public had any right upon the premises. Ryan v. Towar, 128 Mich. 463, 465 (55 L. R. A. 310); Hounsell v. Smyth, 7 C. B. (N. S.) 731; Clark v. Railroad Co., 113 Mich. 24. But assuming, as the trial judge did, that she belonged to the class known to the law as naked licensees, “about the least favored in the law of men who are not actual wrong-doers,” Pollock on Torts, pp. 424, 425, her position, assuming further that she exercised proper care, is not improved, unless it. should be said that defendant’s conduct in opening the ditch and leaving it unguarded at the point where plaintiff fell into it was such a change in the condition of the premises, such creating of a new danger by its active conduct, as indicated a reckless and wanton disregard of the safety of plaintiff and others. Here again we cometo the proposition that if in the conduct of its business it became necessary to change the condition of the surface of its premises, defendant could change.them in no place, in the 45,000 square feet occupied, without giving notice of such change. The rule, or exception to the rule, stated in Felton v. Aubrey, 74 Fed. 350, 20 C. C. A. 436, relied upon by counsel, see, also, Green v. Railway Co., 110 Mich. 648, that—

“If with knowledge that such person will [or may] avail himself of the license, the owner actively change the situation by digging a pitfall, or opening a ditch, or obstructing dangerously the premises which he has reason to believe will be traversed by his licensee, sound morals would seem to demand that he should give reasonable warning of the danger,”

—is limited, and was substantially limited in application in Beck v. Carter, supra, to cases where the use is “definite, long, open and continuous.” It does not appear that in opening and keeping open the ditch defondant was acting except from necessity. It was concealed only by the darkness of the night. The case is ruled, in principle, by Reardon v. Thompson, 149 Mass. 267, and against the contentions of appellant.

The judgment is affirmed.

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