text:
    MILLER v. SMITH.
    Justices op the Peace — Judgment—Collateral Attack.
    A judgment of a justice’s court, regular upon its face, cannot be impeached in a collateral proceeding by showing that neither of the parties to the case in the justice’s court was a resident of the county where the justice resided.
    Error to Kent; Adsit, J.
    Submitted November 6, 1897.
    Decided December 21, 1897.
    Replevin by Nelson F. Miller against William H. Smith. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Crane, Norris & Stevens, for appellant.

      C. O. Smedley (John W. Potvers, of counsel), for appellee.
   Moore, J.

The plaintiff resides on the county line between Kent and Ottawa counties, in Ottawa county. September 21, 1896, an Ohio corporation brought suit against him before a justice of the peace living in Grand Rapids, Kent county. The summons was served in Kent county, and regularly returned. No attention was paid to the summons by the defendant in the case before the justice.- Judgment was rendered against him. An execution was issued, and delivered to the defendant in this case, who was a deputy sheriff. The officer levied upon a quantity of potatoes. The plaintiff in this case replevined them, and by direction of the judge a verdict was returned in favor of the plaintiff.

The defendant bases his right to hold the property upon the execution which was in his hands. There was nothing in the summons, the declaration, or the docket entries made by the justice which made it appear that Mr. Miller was not a resident of Kent county at the time the summons was served upon him. That fact was made to appear for the first time by his parol testimony in the replevin case. The question involved is, Can a judgment of a justice’s court, regular upon its face, be impeached in a collateral proceeding by showing that neither of the parties to the case in the justice’s court was a resident of the county where the justice resided ? It is the claim of the plaintiff that such a judgment can be impeached, and he cites Hall v. Shank, 57 Mich. 36. There is language used in this opinion from which the inference claimed by the plaintiff can be drawn. It is stated, however, in the opinion, that the facts were not controverted, and from them it appeared that, when the suit was commenced before the magistrate, none of the parties were residents of the county of Kent, and personal service was had upon but one of the defendants; that, on the return day of the summons, none of the defendants appeared, and the justice, upon his own motion, adjourned the cause from March 31st to April 5th. The court held that by this adjournment the justice lost jurisdiction. This disposed of the case without it being necessary to use the language used by Justice Sherwood when he said: “It is not competent, under 2 How. Stat. § 6819, for a plaintiff to sue a defendant in justice’s court, where they are both residents of this State, in a county where neither of them resides.” This was undoubtedly a correct statement of the law, but the question remains, When must the objection be made to the jurisdiction of the court? Should it be made in the case where the court seeks to take jurisdiction of the person when it has not jurisdiction under the law, or may the question be raised at any time, in a collateral proceeding as well as in the original proceeding ?

It is claimed on the part of the appellee that justices’ courts are of limited and inferior jurisdiction, and are confined strictly to the authority given them by the statute, and should be held to the exact limits of jurisdiction prescribed by the statute. Wight v. Warner, 1 Doug. (Mich.) 386; Clark v. Holmes, Id. 398; Spear v. Carter, 1 Mich. 19; Shadbolt v. Bronson, Id. 89; Wall v. Trumbull, 16 Mich. 249; King v. Bates, 80 Mich. 367 (20 Am. St. Rep. 518). The cases in 1 Doug, and 1 Mich, were decided before section 1, art. 6, of the Constitution of 1850 was adopted, which reads:

“The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace.”

Section 18 is as follows:

“ In civil cases, justices of the peace shall have exclusive jurisdiction to the amount of $100, and concurrent jurisdiction to the amount of $300, which may be increased to $500, with such exceptions and restrictions as may be provided by law. They shall also have such criminal jurisdiction, and perform such duties, as shall be prescribed by the legislature.”

Section 6814, 2 How. Stat., provides that a justice of the peace “shall have original jurisdiction of all civil actions wherein the debt or damages do not exceed the sum of $100.”

Section 6817, 2 How. Stat., provides;

“Each of said courts is hereby vested with all such powers, for the purpose of exercising jurisdiction conferred by this chapter, as are usual in courts of record, except the power of setting aside a verdict and arresting j udgment thereon. ”

These provisions were not contained in the Constitution prior to that date, so that those cases do not now control. The case of Wall v. Trumbull, supra, did not relate to a proceeding in court, but related to the action of one who was a supervisor. The case of King v. Bates, supra, does contain the statement that justices’ courts are courts of limited jurisdiction, but it holds that it'is not competent to show by parol such a state of facts as would confer upon the court jurisdiction, when the docket and files do not show that the court had jurisdiction.

The decisions of the courts in relation to the question involved in this case are not uniform. Decisions of very-respectable courts can be found which sustain the claim of the appellee. In Hamilton v. Millhouse, 46 Iowa, 75, it was said:

“The only question presented is whether the judgment of the Keokuk county justice of the peace is void for want of jurisdiction. The Code provides that jurisdiction of justices of the peace does not embrace suits for the recovery of money against actual residents of any other county. The agreed statement upon which the cause was submitted shows that the plaintiff in this action, at the time of the rendition of the judgment against him, was an actual resident of Washington county, whilst the judgment against him was rendered in Keokuk county. Appellant insists that, as the notice was duly served on Hamilton in Keokuk county, the justice, upon the face of the notice, acquired jurisdiction, and that Hamilton should have appeared, and pleaded the want of jurisdiction. But this construction would deprive a party of any practical benefit of the provision denying jurisdiction to justices of the peace in actions against residents of other counties. In many cases it would be cheaper to suffer judgment to go by default than to travel to a remote part of the State to interpose the defense of a want of jurisdiction. It would be exceedingly inconvenient if a party traveling through the State may be sued in any township at which a railroad train stops long enough for service of notice to be made, and can only interpose the fact of want of jurisdiction by employing counsel to represent him, or appearing personally. ”

.Counsel for appellee also cite the case of Ferguson v. Crawford, 70 N. Y. 253 (26 Am. Rep. 589), which holds that judgments of courts of record may be impeached by parol. This last case, as will hereafter appear, is contrary to the decisions of this court.

In Barnes v. Harris, 4 N. Y. 375, it was held that in a suit commenced before a justice of the peace by a long summons, which was duly served by a constable of the county, the defendant is prima facie amenable to the jurisdiction; that, if the defendant is not a resident of the county, he should appear in the case, and take objection. This case was doubtless overruled by Ferguson v. Crawford, supra. In Brooks v. Powell, (Tex. Civ. App.) 29 S. W. 809, it was held that, in a collateral suit, parol testimony could not be introduced to attack the jurisdiction of a justice of the peace. “The judgment must be held to import absolute verity, and not subject to collateral attack.”

In Fulkerson v. Davenport, 70 Mo. 541, it was held, in a case where the transcript of a judgment in justice’s court recited that a summons was duly executed, etc., and a judgment by default was taken:

“A judgment by default in a justice’s court, it is conceded, cannot be upheld unless the record shows that the defendant was served with process in the proper township; but the record of these two judgments does show on its face personal service in the township where the suit was brought, and, as was held by this court in Franse v. Owens, 25 Mo. 329, it will be presumed, in the absence of evidence to the contrary, that the defendant resides in such township. The jurisdiction of the person and the subject-matters appears on the record, and the only way for the defendant to avoid this was to appear before the justice as he was notified to do, and establish the facts which he now proposes to prove in this collateral proceeding. A judgment regular on its face cannot be impeached collaterally. 2 Freem. Judgm. § 524; Fagg v. Clements, 16 Cal. 389.”

In Gregory v. Bovier, 77 Cal. 121, the same doctrine is held. See, also, Hume v. Conduitt, 76 Ind. 598.

In Reed v. Gage, 33 Mich. 179, it was held that a judgment in justice’s court could not be attacked collaterally upon the ground of failure to make proof of the authority of the attorney of the plaintiff to appear. In Somers v. Losey, 48 Mich. 294, it is held that, where a judgment in justice’s .court is regularly rendered, and not appealed from, it cannot be attacked collaterally on the ground that the suit should have been brought in the name of a different official plaintiff. In Smith v. Pearce, 52 Mich, 370, where a mechanic sued for his wages, and made the owner of a building on which he worked a joint defendant with the contractor who hired him, it was held that, though the defendant was not liable personally in justice’s court, and the justice erred in rendering judgment against him, and the error would render the judgment liable to reversal on appeal or certiorari, the judgment should be assailed in the regular way, and not attacked collaterally. See Township of Fruitport v. Muskegon Circuit Judge, 90 Mich. 20.

In the recent case of Allured v. Voller, 112 Mich. 357, there is a discussion of the doctrine of collateral attack, in which Mr. Justice Montgomery uses this language:

“On the second trial of the case, defendant sought to show that this acceptance of service was not in fact signed by the defendant in the original action brought by plaintiff against Pierson; and whether it was permissible to make this appear by parol testimony, in contradiction of the record, presents the sole question for consideration. The question is not novel, or, if it be determined on authority, uncertain, nor do we deem it a doubtful one on principle. If it were permitted, in a collateral action, to impeach the validity of a judgment roll by facts aliunde the record, a party relying upon such a judgment would never know how to shape his case for trial, or what multitude of issues he might be required to meet. Hence the rule that a judgment which, on its face, shows jurisdiction, imports absolute verity, when attacked collaterally. See 1 Freem. Judgm. § 124, and Van Fleet, Coll. Attack, § 468, in which place it is said: ‘On principle, a judicial proceeding is never void because the proof of service is false in fact. Such proof is a necessary part of the record, and to permit its verity to be questioned collaterally overturns the very foundations of all judicial-proceedings.’ See, also, the cases cited in the same section. And see Landon v. Comet, 62 Mich. 91; Somers v. Losey, 48 Mich. 294; Corbitt v. Timmerman, 95 Mich. 581. * * * It is true that in New York, and possibly in one of two other States, this rule has not always been adhei’ed to; but the weight of authority is decidedly in favor of the contention of plaintiff in this case.”

It is true that this was a judgment of a court of record, but I cannot see why the doctrine there announced should not apply to judgments rendered in justices’ courts, where the records show that the court had jurisdiction of the person. It would not seem to be any great hardship to require one who has been regularly served with process, who desires to question the jurisdiction of the court, to appear before the court, and by proper plea or motion make an issue, and have it determined then and there, instead of waiting until some indefinite time in the future, when it might be impossible, for want of proof, to decide the question according to the fact. It is not difficult to conceive of a case where it is almost, if not quite, impossible for a plaintiff to know where a defendant resides, though the fact, of course, is known to the defendant. Why should not the defendant, in such a case, when proper service has been made upon him, try the question in the original proceeding, instead of delaying until the witnesses who know the facts are perhaps forgotten, or dead, and the original claim outlawed ? I think, not only is the weight of authority in favor of the doctrine that a judgment of this character cannot, in a collateral proceeding, be impeached by parol, but that it is in accordance with good sense and common honesty.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    FIRST NATIONAL BANK OF PAW PAW v. WALKER.
    1. Appeal — Findings oe Fact — Oonclusiveness.
    A finding of fact by the court will not be disturbed on appeal, except where there is a total want of evidence to support it, or it is contrary to the undisputed evidence.
    2. Same — Request eor Amended, Findings.
    An objection to the court’s failure to find certain facts cannot be urged on appeal where no amendments to the findings were proposed.
    3. Bills and Notes — Accommodation Guarantors — Release.
    Accommodation guarantors of a note payable to a bank, who sign the note with the understanding that other notes of an equal or greater amount shall be dex>osited with the bank as collateral security, and that, when paid, the proceeds shall be applied on the note guaranteed by them, are released from liability where the bank, without their consent, accepts in X>lace of the notes originally deposited as collateral new notes executed by only one of two makers, and extends the time of payment of the same.
    Error to Van Burén; Yaple, J., presiding.
    Submitted November 6, 1897.
    Decided December 21, 1897.

      Assumpsit by tbe First National Bank of Paw Paw against Peter Walker and others upon a promissory note. From a judgment in favor of part of the defendants, plaintiff brings error.
    Affirmed.

      T. J. Cavanaugh, for appellant'.

      E. A. & Robert B. Crane, for appellee Walker.
   Long, C. J.

On November 21, 1896, judgment was entered in the Van Burén circuit on findings of fact and law by the court, as follows:

“(1) The plaintiff is, and during the period covered by the transactions in this case has been, a corporation duly and legally existing under the laws of the United States.
“(2) On and previous to the month of June, 1891, the Cleveland Bay Horse Company was a corporation existing under the laws of the State of Michigan.
“(3) On or about June 27, 1891, the Cleveland Bay Horse Company borrowed of the plaintiff the sum of $4,000, and gave its note therefor. George E. Breck, G. E. Gilman, J. T. Bangs, E. W. Bartram, Harry S. Richards, and Peter Walker signed the note as accommodation guarantors. They so signed under an understanding with said company that there should be deposited with the bank, as collateral security to the note, certain other notes of an equal or larger amount, and would not have otherwise signed as such guarantors; and as a part of the transaction there was delivered to the bank, as collateral security to said note, the said certain other notes given to the Cleveland Bay Horse Company, and owned by it, amounting in all to $4,200.
“(4) The plaintiff collected, from time to time, parts of the said collateral notes, and gave, the Cleveland Bay Horse Company credit therefor, and from time to time renewed the note of the Cleveland Bay Horse Company, each time obtaining the indorsement of the defendants F. J. McEntee, G. E. Gilman, and Peter Walker, with some other of the original indorsers, the renewal notes each time being for the balance due on the original loan from the Cleveland Bay Horse Company to the plaintiff.
“(5) Two of said collateral notes, each for the sum of $500, were given by parties by the names of Lange and Porter. The plaintiff, without the knowledge or consent of the defendants Peter Walker and Amanda Bartram, surrendered those notes, and took in their place and stead two other notes of equal amount, due at a later date, signed by R. H. Lange alone, payable to the order of the plaintiff instead of to the Cleveland Bay Horse Company.
“(6) In the month of May or June, 1894, plaintiff delivered to George E. Breck for collection the collateral notes, and the notes taken in renewal thereof, so held by it to secure the amount due from the Cleveland Bay Horse Company. At that time said George E. Breck was one of the guarantors on the note of the Cleveland Bay Horse Company jointly with the defendants Peter Walker, G. E. Gilman, F. J. McEntee, and others. The intrusting of these collaterals to George E. Breck for collection was with the knowledge, authority, consent, and acquiescence of the defendants G. E. Gilman and F. J. McEntee, but without the knowledge, authority,' consent, and acquiescence of the defendants Peter Walker and Amanda Bar-tram.
“(7) Said George E. Breck collected two of said collateral notes, being the renewal notes given by R. H. Lange in place of the notes of Lange and Porter, and amounting to the sum of $1,000, which he misappropriated, and returned to the plaintiff in the place and stead thereof other renewal notes purporting to be signed by R. H. Lange, but which were forgeries; all of which was without the authority, knowledge, consent, or acquiescence of defendants Peter Walker and Amanda Bartram.
“(8) There was no agreement made by which George E. Breck was to in any manner be intrusted with the collection or custody of any of the collateral notes.
“(9) There was no agreement made permitting the bank to change or renew any of the collateral notes.
“(10) E. W. Bartram, one of the original indorsers, died previous to the giving of the note in question.
“(11) In the month of January, 1895, the plaintiff claimed to defendants that there was still due to it from the Cleveland Bay Horse Company the sum of $2-500, as part of the original consideration for the loan made to it, and under that date it obtained from the defendants herein, as part of the transaction, the note in suit, and at the time it received the note in suit it was aware that Mr. Breck had collected $1,000 on the collateral notes, which had not been credited to the Cleveland Bay Horse Company or the defendants.
“(12) At the time the plaintiff obtained from the defendants their signatures to the note in suit, the defendants Peter Walker and Amanda Bartram were not aware that the plaintiff had changed the collateral notes, extending the time and releasing Mr. Porter therefrom, nor were they aware that the plaintiff had intrusted the custody and collection of the collateral notes to George E. Breck, or that he had collected any part of said collateral notes.
“(13) The plaintiff has never given credit to the Cleveland Bay Horse Company, or to the defendants herein, for the $1,000 collected by George E. Breck and by him misappropriated.
“(14) After the making of the note in suit, and on the 3d day of November, 1895, plaintiff collected on said collateral notes the sum of $199.60, leaving still due to the plaintiff, without charging it for the money so collected and misappropriated by George E. Breck, the sum of $2,419.14, with interest thereon from November 3,1895.
“(15) On the 6th day of July, 1895, and previous to the commencement of this action, the defendant Peter Walker tendered to the plaintiff the total sum, being the balance due from the Cleveland Bay Horse Company to the plaintiff after deducting the amount of $1,000 so collected by George E. Breck on the collateral notes so intrusted to him, and the amounts collected by the plaintiff on the collateral notes, which said amount said Peter Walker has paid into court for plaintiff.
“(16) The defendant Amanda Bartram did not sign as guarantor when the money was first borrowed by the Cleveland Bay Horse Company, and received no consideration for signing the note in suit. The plaintiff, at the time it received the note in suit, knew the relation of the defendants to be that of sureties.
“(17) From foregoing facts I find as matter of law:
“1. That the plaintiff is liable to account to the defendants Peter Walker and Amanda Bartram in this action for the default of George E. Breck.
“2. That the money so tendered and paid into court by Peter Walker is relinquished to the plaintiff, and such tender and payment inures to the benefit of all the defendants herein.
“3. That plaintiff is entitled to recover against the defendants F. J. McEntee and G. E. Gilman the sum of $1,183.74, with interest from July 6, 1895, amounting in all, principal and interest, at this date, to the sum of $1,313.64, and costs to be taxed.
“4. That judgment for no cause of action should be entered in favor of defendants Peter Walker and Amanda Bartram, respectively.
“Judgment is ordered to be entered accordingly.”

Plaintiff’s-counsel filed exceptions to these findings in the following form:

‘First. The plaintiff excepts to the court’s third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and fourteenth findings of fact.
“Second. The plaintiff excepts to the court’s refusal to find that Peter Walker, one of said defendants, had knowledge of the fact that Breck was purporting to act for the guarantors on said note in depositing the collateral
security, and in giving directions in regard to the collection thereof, and collecting the same.
“Third. The plaintiff excepts to the court’s refusal to find that Peter Walker was a member of the Cleveland Bay Horse Company; that, at a meeting of the stockholders of said company, Breck was properly directed to effect loans for the Cleveland Bay Horse Company, collect on the collateral left with certain notes as collateral security, of which the one in suit is the last of a series.
“Fourth. The plaintiff excepts to the court’s refusal to find that Peter Walker, as a member of the Cleveland Bay Horse Company and stockholder thereof, was bound to take notice of all its doings and proceedings.
‘Fifth. The plaintiff excepts to the court’s first conclusion of law.
“Sixth. The plaintiff excepts to the court’s finding as a matter of law that judgment should be entered for the defendants Peter Walker and Amanda Bartram.
“Seventh. The plaintiff excepts to the failure of the • court to find as matter of law that the plaintiff was entitled to judgment for the full amount of claim against all of said defendants.
‘ ‘ Eighth. The plaintiff excepts to the failure of the court to find as a matter of law that the plaintiff was entitled to a judgment against the defendant Peter Walker.
Ninth. The plaintiff excepts to the failure of the court to find as matter of law that the signing of the notes, of which the one in suit was the last of a series, upon presentation by the defendants, and their permitting George E. Breck to take charge of the same, — take them into - his possession to be delivered,' — constituted Breck agent of the defendants, and they are bound by and responsible for his acts.
Tenth. The plaintiff excepts to the failure of the court to find as a matter of law that the signing of the notes by Peter Walker, of which the one in suit is the last of a series, and their delivery to George E. Breck, constituted Breck the agent of Peter Walker, and that the defendant Walker is responsible for his acts, and plaintiff was entitled to judgment for the full amount claimed to be due against the defendant Walker.”

A bill of exceptions was settled and returned with the record, which contains all the evidence in the cause; but the court below certifies that “no amendments to the findings of the court, or further findings, were suggested or requested.”

Plaintiff’s counsel, in his exceptions filed to the findings of fact, does not state the grounds upon which these exceptions are taken; but we shall presume the claim to be that they are not supported by the evidence, as claimed in his brief. We have examined the record with care, and find that there is testimony tending to support every finding of fact made by the court below. It is only where there is a total want‘of evidence, or where the finding is contrary to the undisputed evidence, that the facts found by the trial court will be overturned. Cragin v. Gardner, 64 Mich. 399. Bateman v. Blaisdell, 83 Mich. 358.

As to the second, third, and fourth exceptions taken by plaintiff’s counsel, in which it is claimed that the court erred in not finding certain matters of fact, it may be said that no such findings were asked. If counsel was not satisfied with the findings made, he should have proposed amendments, under Rule 88 of the old rules. Merrill v. Newton, 99 Mich. 229.

The only remaining questions are whether the court was in error in the findings of law. It is contended by counsel for plaintiff that there was no legal duty imposed upon the bank to da more than deliver the collateral notes to a reputable collector, agent, or attorney for collection, and that the bank did this in placing the collateral notes in the hands of Mr. Breck for collection, and therefore it could not be held liable for any neglect or misconduct of Mr. Breck. But the court found as a fact that Breck collected two of the collateral notes, amounting to $1,000; that these were signed by R. H. Lange alone, the time extended, and the name of Mr. Porter dropped from them, without the knowledge or assent of the defendants Walker and Bartram. In other words, the original collateral notes were signed by Porter and Lange. Mr. Breck, acting for the bank, as the court substantially found, took these two collateral notes, surrendered them to Porter and Lange, and received payment thereon, and returned into the bank two notes purporting to be signed by Lange alone, and extending the time of payment. The defendants had no knowledge of this, and it turned out afterwards that the notes were forgeries. It also appears that one of these renewal collateral notes, purporting to be signed by Lange, was made payable to the bank. Under the original arrangement, these collateral notes were to be held by the bank, and, when paid, the proceeds applied upon the original note.; The bank had no authority to change the form of these collaterals, take new notes in place of them, extend time of payment, and drop one or more of the makers. Under these circumstances, the court having found as a fact that Breck was acting as the agent of the bank, and there being some evidence of that fact by the circumstances stated, we cannot disturb the finding. Saginaw, etc., R. Co. v. Chappell, 56 Mich. 193. The court was therefore not in error in finding that the plaintiff was liable to account to the defendants Walker and Bartram for the default of Breck. The other findings of law need not, therefore, be discussed, as the results found by the court must follow.

The judgment of tbe court below must be affirmed, with costs.

The other Justices concurred.


text:
    RODGERS v. KENT CIRCUIT JUDGE.
    Constitutional Law — Peddler’s License — Discrimination Against Nonresidents.
    Act No. 248, Pub. Acts 1897, making it unlawful'to peddle without a license in the several townships of the State, is unconstitutional, in that section 8 discriminates against nonresidents by permitting manufacturers, farmers, and mechanics “residing in this State” to sell their work or production, by sample or otherwise, without procuring the license provided for.

      Mandamus by Frank A. Rodgers, prosecuting attorney of Kent county, to compel Allen C. Adsit, circuit judge of said county, to vacate an order quashing a prosecution for peddling without a license, brought under Act No. 248, Pub. Acts 1897.
    Submitted November 17, ' 1897.
    Writ denied December 21, 1897.

      Rodgers, McDonald & Corwin, for relator.

      Gerrit H. Albers (Taggart, Knappen & Denison, of counsel), for respondent.

       On the question of peddlers and drummers, as related to interstate commerce, there is a collection of authorities in a note to Re Spain, (C. C. E. D. N. C.) 14 L. R. A. 97.

   Long, C. J.

One Arthur Visser was convicted in justice’s court of traveling, trading, and soliciting trade in the township of Grattan, Kent county, without first having obtained a license therefor. The prosecution was had under Act No. 248, Pub. Acts 1897. The defendant appealed to the circuit court, and there moved the court for his discharge, on the ground that the act was unconstitutional. That court so held, and the defendant was discharged. The relator-here is the prosecuting attorney of that county, and asks the aid of the writ of mandamus to compel the circuit court to set aside that order, and restore the case, and hold the defendant for trial.

The act is entitled “An act relative to granting, regulating, and licensing the business of pawnbroking, hawking, and peddling goods, wares, and merchandise in the several townships of this State.” Section 1 of the act provides substantially that it shall not be lawful for any persons to engage in the business of hawking, peddling, or pawn-brokerage by going about from door to door, or from place to place, or from any stand, cart, vehicle, or in any other manner in the public streets, without first having obtained from the township board of the township where such business is to be carried on a license therefor. Section 2 fixes the amount of the license at from $5 to $30, according to the population of the township. Section 6 provides a penalty for violation of the act, of not more than $50, or by imprisonment in the county jail not exceeding three months, or both, in the discretion of the court. Section 8 provides:

“ Nothing contained in this act shall prevent any person from selling any meat or fish in townships outside of any incorporated city or village, nor any nurseryman from selling his stock by sample or otherwise, nor any person, firm, or corporation engaged in the sale of farm machinery and implements, nor any manufacturer, farmer, or mechanic residing in this State from selling or offering for sale his work or production, by sample or otherwise, without license; nor shall any wholesale merchant, having a regular place of business, be prevented by anything herein contained from selling to dealers by sample, without license; but no merchant shall be allowed to peddle or to employ others to peddle goods not bis own manufacture without the license provided for in this chapter.”

While several questions are raised as to the constitutionality of the act, we deem it necessary to discuss but one, and that arises under section 8, above quoted. It is contended thát the act discriminates against the citizens of other States. The title and body of the act are general; forbidding every one from peddling without a license;’ but, by section 8, manufacturers, farmers, and mechanics residing in this State are permitted to sell their goods by sample or otherwise; so that such persons are, by section 8, expressly permitted to engage in the business of peddling, etc., without a license. As to all persons not residing in this State, the general provisions remain; and they are forbidden to engage in the same business except-as they procure and pay for the license provided for. It is therefore evident that the license regulation is imposed upon nonresidents of the State, and is not imposed upon residents, all other circumstances being the same. The discrimination against nonresidents is clear, and the case is controlled by Welton v. Missouri, 91 U. S. 275; Walling v. Michigan, 116 U. S. 454.

It cannot be said that the legislature would have passed this act if section 8 had been eliminated, and, in consequence, the whole act must fail.

The writ of mandamus must be denied. No costs will be awarded.

The other Justices concurred.


author: Long, C. J. Grant, C. J.

text:
    CONNECTICUT MUTUAL LIFE INSURANCE CO. v. WOOD.
    1. Tax Sales — Validity—Lands Previously Bid tó State.
    Lands that have been bid off to the State under the tax law ' of 1893 (Act No. 206), and are still held by it, cannot again be sold for the delinquent taxes of succeeding years, in view of the provision of section 61 of the act that “lands hereafter bid off in the name of the State, and thus held, shall not be included ” in the petition of the auditor general for the sale of delinquent lands, notwithstanding the other incompatible provisions of the statute; and a sale made in violation of said section will be set aside on petition filed by the landowner.
    2. Same — Title of Purchaser.
    A tax sale under the law of 1893, if valid, operates to vest in the purchaser an absolute title in fee, whether that purchaser be the State or a private individual.
    3. Statutes — Construction—Negative Terms.
    The use of negative words in a statute is ordinarily indicative of a legislative intent to make the provision imperative.
    4. Same — Practical Construction.
    Where the language of a statute is plain and unambiguous, there is no room for the application of the doctrine of practical construction; nor can such construction be controlling in any case where it has been challenged with reasonable promptness.
    5. Taxes — Equity Jurisdiction.
    The court of chancery has only such jurisdiction in tax proceedings as is conferred upon it by statute. „
    6. Same — Duty of Taxpayer. g
    One who seeks relief from a void tax sale in a court of equity will be compelled to do equity.
    7. Same — Purchaser at Void Sale.
    The various provisions of law which are designed to protect the purchaser at a void tax sale are referred to and discussed.
    Appeal from Wayne; Carpenter, J.
    Submitted October 15, 1897;
    opinion filed December 21, 1897.
    Rehearing granted January 4, 1898;
    reargued February 28, 1898;
    former opinion affirmed March 29, 1898.

      Petition by the Connecticut Mutual Life Insurance Company against Eugene B. Wood and Roscoe D. Dix, Auditor General, to set aside certain tax sales. Erom a decree for petitioner, defendant Wood appeals.
    Affirmed.

      Moore & Goff (John D. Conely, of counsel), for petitioner.

      Charles W. Nichols and A. A. Ellis, for defendant Wood.

      Fred A. Maynard, Attorney General (Avery Bros. & Walsh, of counsel), for defendant Auditor General.
   Long, C. J.

In 1894, defendant Wood purchased the lands involved here at the annual tax sales held in Wayne county for that year. He also at the same time purchased the same descriptions of land from what is known as the “State tax land list,” those lands having been bid in by the State at the sale of 1893, and the bids still held by the State. The petitioner filed its petition on March 29, 1897, in the Wayne circuit court, in chancery, to have these sales set aside and the deeds canceled, alleging, among other things, that it was, and for several years prior thereto had been, interested in such premises, being the owner of one tract and mortgagee of the other; that the first is of the value of $5,000, and the other, $14,000. There are several grounds upon which it is asked to have the sales set aside, only one of which need be considered, as that is decisive of the case. Both of these parcels of land were bid off to the State at the tax sales of 1893 for the taxes of 1891, and were so held by the State during the years 1893 and 1894, and at the time the lands were included in the petition made by the auditor general for the sales to be made in 1894 for the taxes of 1892.

Section 61 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), among other things, provides, “ Lands hereafter bid off in the name of the State, and thus held, shall not be included in such petition;” referring to the petition of the auditor general for the sale of lands returned delinquent. The contention of counsel for petitioner here is that, these lands being held by the State under the bids of 1893 for the taxes of 1891, the auditor general had no authority under this statute to include them again in the petition for the sales in 1894 for the taxes of 1892. On the other hand, counsel for Mr. Wood admit that this might be a reasonable construction of the statute were it not for other provisions to which they call attention. Section 68 provides:

‘ ‘ All lands bid off for the State as provided in this section shall continue liable to be taxed in the same manner as if not held as belonging to the State, and all such taxes shall be a charge and lien upon such lands as in case of other tax lands, except as hereinafter provided.”

Section 70 provides:

“If any parcel sold under the provisions of this section shall also be offered at the same sale as State tax lands, the purchaser must also, at the same time, become the purchaser from the State tax land list, and pay the taxes, interest, and charges remaining unpaid thereon, and must pay all the remaining taxes assessed for the year for which he purchased, with interest thereon. All sales made in contravention of this requirement shall be void.”

Section 80 provides:

“In all cases where a description of land is offered as State or county tax land, and the same description, or any part thereof, shall be offered in the list of lands delinquent for taxes, as provided “in this act, the county treasurer shall inform the person bidding for the same of that fact, and such person shall be required to purchase said description at the same time, and, if he refuses so to do, the treasurer shall refuse his bid, and shall again offer it as if no bid had been made thereon.”

Section 85 provides:

“Neither the sale of State tax lands, nor the sale of any of the bids of the State for which the time of redemption has not expired, shall in any wise prejudice the right to enforce the collection of any tax subsequent to the year or years for which the same has been sold as aforesaid; and for the taxes and charges remaining unpaid for said subsequent year or years the auditor general shall cause such lands to be offered in regular succession at the next ensuing annual sales for taxes, «giving notice as required by law, unless previously redeemed or otherwise discharged.”

The contention is that, reading these sections together, but one conclusion can be reached as' to what the legislature intended, and that is that a resale may be made each year though the State holds the lands under former bids.

We think this construction cannot be given the statute. The provisions of section 61 above quoted may be given force, and yet the other provisions referred to by counsel stand. What is meant by the language used in section 61 is that when lands have been bid off to the State, and are yet held by the State, such lands shall not again be sold for the delinquent taxes of succeeding years. Of course, it would follow that, where the State had assigned its bid, the lands would be again subject to sale, as it would be the duty of the purchaser of such bid to pay the taxes of succeeding years. The auditor general, under the provisions of section 61, had no authority to include these lands in the petition for the sale for the year 1894, as at that time the State held them under the bids of 1893.

The court below, by its decree, having reached the right result, that decree must be affirmed, with costs against defendant Wood, he alone having appealed.

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

ON REHEARING.

Grant, C. J.

After able arguments by several eminent counsel, several exhaustive briefs, and a careful examination by ourselves, we again reach the same conclusion stated in the former opinion.

1. Counsel for the defendants now seek to sustain their position by applying a restricted meaning to the word ‘ ‘ lands ” in the statute. They insist that it does not mean the lands and the title thereto, but only such interest as the State has acquired by former sales, and that only that interest is excluded from the petition. This contention cannot be maintained. The term has a well-defined meaning. There may be cases where, in instruments or in laws, other language may be used, showing that a term is used in a restrictive sense. We, however, find no language in this statute which can be construed into a restriction of the well-understood term ‘ ‘ lands. ” “In law, ‘ land ’ signifies any ground forming part of the earth’s surface which can be held as individual property, whether soil or rock, or water-covered, and everything annexed to it, whether by nature, as trees, water, etc., or by the hand of man, as buildings, fences, etc.” Cent. Diet. When the lien given by the statute is foreclosed by the court in chancery, the evident purpose is to convey to the State or to the private purchaser the absolute title in fee, a title which completely destroys the original one. It is of no significance that the State does not bid in the land for speculative purposes, or that it acquires no possessory rights therein, or that it remains liable to taxation for successive years. When the lien is foreclosed, the land sold, and the time of redemption expired, the State or the private purchaser owns the complete title in the land, or it owns nothing. The law may preserve the lien in case the title is held void, but that does not affect the quantity of the title conveyed, which is the entire or nothing.

2. Section 61 provides for the contents of the petition, which must have annexed thereto lists-or schedules containing “a description of all lands in such county upon which taxes have remained unpaid for more than one year prior to the 1st day of May, 1893, or the 1st day of May of the year in which the petition is filed,” etc. .Then follows an express prohibition as to lands ‘ ‘ hereafter bid off in the name of the State, and thus held.” It is conceded that this language, standing by itself, can have but one meaning, and that it should control but for other provisions of the statute which are incompatible with it.

Usually, when negative words are used, in a statute, it becomes imperative and mandatory. There is no room in such case to hold that the language is directory simply. Pond v. Negus, 3 Mass. 230; Stayton v. Hulings, 7 Ind. 144; Koch v. Bridges, 45 Miss. 247; Sibley v. Johnson, 1 Mich. 380. Can this express language, prescribing what shall not be included in the petition, be set aside and held meaningless, from the fact that there are other provisions following it in the statute which seem to contemplate that the petition might also include things which were thus excluded ? We think not. These incompatible provisions appear to have been taken bodily from previous statutes. Considering the frequent and continuous changes made by the legislature in the tax laws, the haste of legislation, and the inexperience of many upon the subject, it is not surprising that many incongruities creep in. This court has frequently had to deal with such legislation, which oftentimes presents difficult questions. It was said by Mr. Justice Campbell in Attorney General v. City of Detroit, 71 Mich. 97: “The frequent and careless revision and re-enactment of charters for Detroit has led to a good deal of confusion.” Treating the question from the statute alone, we are compelled to hold that the incompatible sections quoted in our former opinion do not destroy the clear and unequivocal provision of section 61.

In addition to the sections cited in the former opinion, section 127 of the tax law of 1893 is also cited as being incompatible with the provision of section 61. It reads as follows:

“Whenever it shall hereafter appear that any lands delinquent for taxes have been bid off to the State for a consecutive period of more than three years, and that no application has been made to redeem or purchase the same, it shall be the duty of the auditor general and the commissioner of the state land office, when requested so to do by the township board of the township wherein such delinquent lands are situated, to cause an examination of such lands to be made as soon as practicable, to ascertain their value, and the cause of the non-payment of taxes thereon; and if it shall appear that such lands are barren, swamp, or worthless lands, and have been abandoned by the owner, upon a certificate being filed by the examiner to that effect, the auditor general is hereby authorized to make a transfer by deed of the same to the State, as to an individual, as provided in this act, which deed shall be recorded in the proper county, and a copy filed in the office of the commissioner of the state land office, and said commissioner shall thereafter hold-such lands as State lands, subject to sale as hereinafter provided.”

It must be remembered that the act of 1893 does not exclude from the petition lands which had theretofore been bid in by the State, but only lands which should be thereafter bid in and held. The State at that time owned many thousand parcels of land, bid in at former tax sales. To such lands section 127 clearly applies, and after there had been one sale of lands under the act of 1893, which had been sold annually for the taxes of previous years, they would come within this section. To this extent, section 127 can be given effect in harmony with section 61.

3. It is, however, very strenuously urged that the auditor general’s department has given a practical construction to the statute, which is binding upon the courts. Prior to 1882 no judicial determination of the validity of the tax' prior to the sale was provided for. Owing to the carelessness or negligence, or both, of officials charged with the assessment and collection of taxes, the proceedings were notoriously defective, and a tax title was seldom sustained by the courts. The statutes prior to that time expressly provided for annual sales from the State tax land list and from the tax record for the current year. The provision of section 61 first appeared in the tax law of 1882, and in the identical language found in the present law. Act No. 9, Pub. Acts 1882, § 53 (1 How. Stat. p. 1279). Nothing is found in that statute to qualify or restrict the provision. Section 66 of that act provided for the resale of lands bid off to the State. Thp auditor general was to furnish a statement of all such lands to the county treasurer. The auditor general was to publish a notice for three weeks next previous to the day fixed for the annual tax sale. It also provided: “Such notice shall not describe the lands, or state the amount of taxes and charges thereon.” This act, for the first time in the history of the State, provided for a judicial determination upon the validity of the tax before sale, and contemplated that a decree and sale should be final and conclusive. TÍie methods of the old law were entirely superseded, and have no bearing upon the question before us. If it be conceded that the auditor general included, in the petition filed under that law, lands which had been bid off to the State, and thus held, such action would not constitute a practical construction. There was nothing to construe. The language was so plain that “he who runs might read ” and understand it. Such action would be a practical disobedience, rather than a practical construction.

It was conceded by the attorney general upon the argument that this provision in the act of 1882, where it first appeared, was susceptible of but one meaning, and that lands bid in by the State, and thus held, must be excluded from the petition. When were its purpose and meaning changed? The auditor general could not change them by disobeying them. There is nothing in the acts passed between 1882 and 1893 to indicate such a change. For the first time we find in the law of 1893 some incompatible provisions. This law of 1882 became inoperative by an equal division of this court. State Tax-Law Cases, 54 Mich. 350. It was repealed in 1885, and the legislature returned to the old system. This provision was restored by the act of 1889. It was eliminated by the act of 1891, and again restored in 1893. Section 69 of the law of 1889 contains the same provisions as does section 66 of the law of 1882 in regal'd to State tax lands, viz., the auditor general furnishes the county treasurer with the same statement, and publishes a four-weeks notice, which “shall not describe the lands, or state the amount of taxes and charges thereon.” There is nothing in the law of 1889 which would justify the auditor general in including in the petition the prohibited lands. The construction placed upon the act of 1893 has been too early-challenged to justify the courts in following the construction apparently placed upon it by the auditor general’s department. We are not pointed to any opinion from the legal department of the State sustaining such construction, and which has been followed, as was the case of Attorney General v. Glaser, 102 Mich. 408.

The policy of this provision in the acts of 1882, 1889, and 1893 was, as already stated, to adjudicate the validity of the tax§s before sale, and also to avoid the expense of publication. The taxpayer was to be given his day in court. If the decree was against him, his only remedy was to pay; and, if he did not pay, the State was clothed with the complete title. If he appeared, the decree was conclusive. If he did not appear, it was equally conclusive, provided there were no jurisdictional defects which were not within the curative provision of the law. The State was sufficiently protected, and the legislature had prescribed the terms under which the State should part with its title. The land was still subject to be taxed, and he who purchased from the State was required to pay all the subsequent taxes assessed upon it before he could obtain his deed. If the taxpayer redeemed within the time provided from the sale in any year, the tax for the subsequent year still remained a lien upon his property. If he redeems before the filing of the petition in the subsequent year, his land can be included in such petition as delinquent for the year following the one for which it had been sold, and from which he redeemed. If he redeemed too late for inclusion in such petition, we think it may be included in the petition of the next year. If, however, there were no way provided for the enforcement of such liens, there would simply be a defect in the law. The court of chancery has only such jurisdiction in tax proceedings as the statute gives it. Section 61 alone confers that jurisdiction, and is substantially the same as in the previous acts. It differs from them only fin being more explicit as to the contents of the petition. The legislature was particular to state what the petition should contain, and positively excluded certain things from it. No other section of the statute attempts to limit or define its contents, or to confer jurisdiction. Naturally, therefore, the auditor general must look to this section for his authority in preparing his petition, and that authority cannot be enlarged by the courts.

4. It is provided by section 131 that the lands mentioned in section 127 shall be subject to homestead entry. Counsel for the auditor general made a statement in their brief of the number of acres on which taxes had been canceled under this provision, and also the number that had been homesteaded, and ask what shall he done with these homesteaders, and what is to become of their improvements. The plain provisions of the law could not be set aside, even though disastrous consequences should follow; but the homesteaders are amply protected. Section 73. provides that no sale shall be set aside where the purchaser, his heirs or assigns, have been in actual, undisputed possession for five years; and, whenever such sale is set aside within five years, the court shall determine and decree the value of improvements made by the purchaser, and give judgment therefor, and issue execution to collect the same from the claimant before putting him in possession. Croskery v. Busch, (Mich.; March 15, 1898) 74 N. W. 464. See, also, section 104 of the act. So, also, in an action of ejectment, under 3 How. Stat. § 7836, if the plaintiff recover, the defendant is entitled to compensation to the extent that the buildings and improvements made by him shall increase the present value of the premises. Under these liberal statutes, no great hardships can be imposed upon the homesteader.

5. It is also urged that the State would suffer great loss in the taxes it would be compelled to refund in consequence of this decision; and a statement is furnished by the auditor general, and incorporated in the brief of his counsel, showing the amount of such anticipated losses. We do not think that the conclusion of the auditor general will necessarily follow. If, as in the present case, the taxpayer petitions the court in chancery in the auditor general’s proceedings to foreclose a lien, the court will compel him to do equity. If the taxpayer is in possession, and files a bill to remove a cloud from the title, the court may then compel him to do equity. If, in an action of ejectment, the title is held void, or if the purchaser is refunded his money, it does not follow that the lien is destroyed. If the present law does not provide for that emergency, it can be amended, authorizing proceedings to foreclose such liens.

6. Other objections are raised, which are not. important to consider. They affect mainly the proceedings at the time of and after the decree. They are defects attributable to the gross carelessness or negligence of those charged with the execution of the revenue laws of the State, and are without excuse. Whether they are fatal we need not discuss. They should never have occurred. There is no reason why these proceedings should not be conducted according to the law. It is equally inexcusable in landowners to permit valuable property, as in this case, to be sold for a few dollars of taxes. There is no prevail-' ing equity in the claim of either party. It is essential to just and equal taxation that these proceedings be such as to convey a good title to the purchaser. Courts should liberally construe a revenue statute, so that the revenue shall be collected; but when the State or a purchaser rests upon the letter of the law, both must be content with the plain interpretation which the revenue law will bear. When the State takes the property of the citizen, it is not entitled to any strained construction of the law in its favor. The petitioner in this case offers to pay the taxes. Speaking for myself, I regret that the law does not provide a penalty to be impo'sed upon it, and also upon the officials, for such gross neglect of duty. The lands are stated to be worth about $19,000, while the taxes amount to less than $50. When the revenue officials will make just and honest assessments, and see that the proceedings to enforce them are regular, which they can easily do, there will be little difficulty in the collection of taxes. Our conclusion is that there was no authority of law for including the petitioner’s lands in the petition, and .that the sale was void.

It is urged that adherence to our former decision will lead to confusion in the pending proceedings before the various circuit courts on the pending May sales. If any remedial legislation upon this or any other point is necessary and urgent, the legislature is now in session, and can adopt such measures as it may consider necessary, if the executive, by special message, so suggests.

The decree is affirmed. No costs will be allowed the petitioner.

The other Justices concurred.

       It was conceded by defendant Wood that,the sales for 1891 were void, and no reliance was placed upon them.


author: Grant, C. J.

text:
    STATE v. HOLMES.
    1. Wills — Devise on Condition Precedent.
    A testator devised a life estate to his wife, with remainder over to the State upon the following condition: “-If the State shall, within the period of five years from and after the death of my said wife, formally accept of this provision of my will, and, by due enactment, locate upon my real estate * * * some public educational or charitable institution, and build thereon suitable buildings for such institutionotherwise to go to a grandson of the testator. Held, that the devise to the State was upon condition precedent. ,
    2. Same — Suspension oe Alienation — Term not Based on Lives.
    The effect of the conditional devise being to suspend the power of alienation of the estate for a period not based on lives in being at the time of its creation, it was void under the statute. 2 How. Stat. §§ 5530, 5531.
    3. Same — Disposition op Intestate Property — Widows.
    A widow who, under the terms of her husband’s will, takes a life estate in his personalty, may nevertheless, upon the provision of the will which attempts to dispose of the residuum of the personalty being declared invalid, take under the statute of distribution (2 How. Stat. § 5847, subd. 6) a one-half interest in such residuum.
    4. Statutes — Adoption prom Other States — Construction.
    It will be presumed that the legislature, in adopting a statute from another State verbatim et literatim, recognized and accepted the construction that had been placed upon such statute by the courts of such other State.
    Appeal from Kent; Grove, J.
    Submitted October 5, 1897.
    Decided January 4, 1898.

      Bill by the State of’ Michigan against Abbie S. Holmes and Adolph B. Mason, executors of the last will and testament of Nelson Holmes, deceased, Abbie S. Holmes, individually, and Frank Nelson Holmes, to obtain a construction of said will. From a decree in favor of Frank Nelson Holmes, the others appeal.
    Modified.
    Nelson Holmes died testate, leaving his widow and grandson as his sole heirs at law. By his will he bequeathed $2,000 to his grandson, and all the residue of his estate, real and personal, to his wife, for life, to enjoy the income and profits thereof. The fourth clause of his will reads as follows:
    “After the death of my said wife, I give and bequeath and devise my said estate, real and personal, to the State of Michigan, upon the conditions following: If the State shall, within the period of .five years from and after the death of my said wife, formally accept of this provision of my will, and, by due enactment, locate upon my real estate in the said township of Grattan some public educational or charitable institution, and build thereon suitable buildings for such institution. If the State shall not accept the foregoing provision, I then direct the said residue and remainder of my estate shall descend to my said grandson, Frank Nelson Holmes, to him, his heirs and assigns, forever.”
    The bill is filed by the State to obtain a construction of this'will. Issue was framed by the proper pleadings, and upon the hearing a decree was entered holding that the fourth clause of the will is void, and that the grandson, as the sole heir at law of the deceased, is entitled to the entire residue of the estate, both real and personal, subject to the life estate of the widow. The State appeals, insisting upon the válidity of the will. The widow appeals, insisting that, if this clause be set aside, the personal property must be distributed as in a case of intestacy, and that under 2 How. Stat. § 5847, subd. 6, she is entitled to one-half of such property.

      Fred A. Maynard, Attorney General (Birney Hoyt, of counsel), for complainant.

      Butterfield & Keeney, for defendants Abbie S. Holmes and Adolph B. Mason.

      Crane, Norris & Stevens, for defendant Frank Nelson Holmes.
   Grant, C. J.

(after stating the facts). 1. The condition is precedent, not subsequent. The terms of the will are too clear upon this point to require much discussion. The title is not devised to be defeated by a breach of a condition subsequent, but is made to vest only upon the performance of a condition precedent. The State has no title or interest until it has complied with the condition. The learned attorney general' cites many authorities, but none of them contain provisions similar to this. In Langley v. Chapin, 134 Mass. 82, the conveyance contained the following clause: “This conveyance is made by us upon condition that the Corbitant Mills, or its successors, will erect, or cause to be erected, upon its premises, a cotton factory, of not less than 20,000 spindles, within two years from the date hereof.” It was held, “The clause attaches a condition to the estate conveyed.” Under that conveyance, the title, with the right of possession, vested in the grantee, subject to be divested by noncompliance with the condition subsequent. The other authorities cited contain similar provisions. In this case no title can vest until the legislature, by appropriate act, has accepted the devise, and located upon it some public educational or charitable institution, and built suitable buildings therefor.

The law of this State in regard to estates in possession and in expectancy is found in 2 How. Stat. § 5523 et seq. The provisions controlling this case are sections 5530 and 5531, which read as follows:

“Every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.
“The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.”

This statute was adopted in the State of New York in 1830. It was subsequently adopted in this State, verbatim et literatim, and is found in the Revised Statutes of 1846. The construction placed upon this statute by the courts of that State has a controlling influence, and courts will presume that the legislature recognized and accepted such construction. Greiner v. Klein, 28 Mich. 12. The court of appeals of New York had passed upon this statute several times before its adoption here. Coster v. Lorillard, 14 Wend. 265, 312; Hawley v. James, 16 Wend. 61; Hone v. Van Schaick, 7 Paige, 231; Irving v. DeKay, 9 Paige, 529. It has been before that court many times since. Yates v. Yates, 9 Barb. 324, 347; Tayloe v. Gould, 10 Barb. 398; Tucker v. Tucker, 5 N. Y. 417; Rose v. Rose, 4 Abb. Dec. 108; Moore v. Moore, 47 Barb. 260; Garvey v. McDevitt, 72 N. Y. 556; Rice v. Barrett, 102 N. Y. 161; Cruikshank v. Home for Friendless, 113 N. Y. 337; Haynes v. Sherman, 117 N. Y. 433; People v. Simonson, 126 N. Y. 299; Booth v. Baptist Church, Id. 215; Trowbridge v. Metcalf, (Sup.) 39 N. Y. Supp. 243.

The rule established by these authorities is that a suspension of the power of alienation, not based on lives, is void, and that the power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. It is said in Moore v. Moore: “ In all the adjudicated cases upon this statute the courts have uniformly held that the period of suspension of alienation could not be measured by time alone; that life must, in some form, be the measure of the period of suspension.” In that case, suspension was for three years. In Rose v. Rose it was for five years. Tested by this rule, the devise must fail. There are no persons in being who can convey an absolute fee in this land. If all the parties mentioned should now unite in a conveyance, the grantee would take only a life estate. The widow has only that interest to convey. The State has nothing to convey, for it has no interest until the conditions are accepted. The grandson has nothing.to convey, and cannot have until the State refuses or neglects to accept the condition. The title to the land is left “swinging in abeyance, ” without protection, owner, or abiding place. A squatter might take possession, and ho one could eject him. It-is.not exempt from taxation, because the State does not own it. It cannot be assessed to the grandson after the death of the widow, because he does not own it. This- condition of things may exist for five years. It therefore violates the statute, and is void.

2. It is conceded that the will is valid, except as to: the fourth clause. This being declared invalid, it follows .that the residuum of the personal estate is intestate property, and must be distributed under the statute of distribution of estates of intestates, above cited. Counsel for Frank Nelson Holmes contend that the widow, having elected, by acquiescence, to take under the will, is. thereby, barred of any further interest in her husband’s estade. But Mr. Holmes acquires no interest in the personal estate covered by the fourth clause, otherwise than by- intestacy as to it. With this clause omitted, there is no testate disposition of the personalty, except for life to the widow. If he claims through intestacy, he can take only the share which the law gives him. Our statute is taken from the Massachusetts law, and a construction had been placed upon, it by the courts of that State before its adoption in Michigan. Nickerson v. Bowly, 8 Metc. (Mass.) 424. The testator in that case bequeathed the use of his personal estate to his wife during her widowhood. Held, that the widow, upon the death of the testator, was entitled to one-half. Chief Justice Shaw said: “As every man is presumed to know the law, it may reasonably be inferred, as ms intention, that the residue should be disposed of according to law.” This is also the rule in England. Davers v. Dewes, 3 P. Wms. 40; Dicks v. Lambert, 4 Ves. 725. The following authorities also support it: Wood v. Mason, 17 R. I. 99; Edsall v. Waterbury, 2 Redf. Surr. 48; Reed's Estate, 82 Pa. St. 428; Armstrong v. Berreman, 13 Ind. 422.

The decree will be modified in accordance with this opinion. No costs will be allowed.

The other Justices concurred.


author: Montgomery, J.

text:
    CANFIELD v. W. J. GOULD & CO.
    1. Debtor and Creditor — Conveyance as Security — General Assignment.
    A conveyance by bill of sale of all one’s property as security for a debt, no creditor save the grantee being named in the instrument or provided for by. outside agreement, cannot be construed as a general assignment for the benefit of creditors.
    3. Chattel Mortgages — Trover.
    A mortgagee of chattels may maintain an action of trover for the conversion of the mortgaged property.
    3. Same — Pleading and Proof.
    An averment of general ownership of chattels is sustained, as against a stranger, by proof of a mortgage interest therein.

      4. Fraudulent Conveyances — Burden of Proof.
    3 How. Stat. § 6190, casting upon the purchaser of personal property, who permits the same to remain in the possession of the seller, the burden of showing, as against creditors, not only his own good faith, but the good faith of the seller, does not apply to a transfer of property as security.
    Error to Wayne; McMahon, J., presiding.
    Submitted October 8, 1897.
    Decided January 4, 1898.

      Trover by Georgie Canfield against W. J. Gould & Company, a corporation. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry B. Graves, for appellant.

      Lehman Bros. and F. J. Riggs, for appellee.
   Montgomery, J.

This is an action of trover, to recover the value of certain goods seized and attached at the instance of defendant. The attachment ran against the goods and chattels of Canfield Bros., and was sued out on the 22d day of September, 1896. On the 12th of September, 1896, Canfield Bros, had given to the plaintiff a bill of sale of- their stock in trade, book accounts, etc.; and the questions presented on the trial related to this transfer, and its bona fides. The plaintiff recovered the value of the goods seized, $279.53, and defendant brings error.

It is contended:

(1) That the transfer should be construed as a general assignment for the benefit of creditors.

(2) That the plaintiff is estopped by her pleadings from recovery upon any other theory than that she was the ab-' solute owner of the stock in question.

(3) That, if the bill of sale passed the title, then, as there was no immediate delivery, the transfer was presumptively fraudulent, and the instructions were faulty, in that the plaintiff was not, under the instructions given, required to show good faith on the part of Canfield Bros.

1. The evidence shows that the bill of sale conveyed all the property of Canfield Bros., it is true; but the sole purpose was to secure a single creditor, the plaintiff. No other creditors were either named in the instrument 'or provided for by outside agreement. As was said by Mr. •Justice Grant in Hill v. Mallory, 112 Mich. 390, “A debtor may prefer a creditor by a mortgage on all his property, or by a transfer of all his property in payment, when the value of the property is not so in excess of the debt as to raise the presumption of fraud.” See, also, McMorran v. Moore, 113 Mich. 101, and cases cited; National Bank of Oshkosh v. First Nat. Bank of Ironwood, 100 Mich. 485.

2. The declaration contained counts in trover. This form of action was proper, even though the plaintiff’s rights were those of a mortgagee only. Wright v. Starks, 77 Mich. 221; McGhraw v. Bishop, 85 Mich. 72.

It is contended that as the declaration contains a special count, in which plaintiff avers that she was the owner of the same goods described in the counts in trover, she must be held bound by the averment in the special count. The only way that this question appears to have been raised in the court below was by preferring a request which read, “The declaration of the plaintiff alleges an ownership of the disputed property in the plaintiff, and the undisputed evidence in the case discloses that plaintiff did not own the goods, and for that reason the verdict must be for defendant.” The request does not challenge the attention of the trial judge to any conflict between the various counts of the declaration. Presumably, if it had, the court would have permitted an amendment. But we think that there was no such conflict between the various counts as precluded proof of the title which plaintiff established. The special count alleges the indebtedness of Canfield Bros, to the plaintiff, and alleges that, in order to satisfy plaintiff’s debt, Canfield Bros, executed to plaintiff a bill of sale of the goods and chattels, which thereupon became and were the property of plaintiff. This avers but a general ownership of the property, and we think that, as against a stranger, a chattel mortgagee shows such a title as entitles him to recover under such an averment. Indeed] the cases in which trover has been maintained by a mortgagee necessarily so hold, as the averment in trover is that “plaintiff was lawfully possessed, as of his own property, of,” etc.

3. The defendant’s contention that one who purchases an absolute title in personal property, and permits the same to remain in the possession of the seller, has the duty cast upon him, in such an action as the present, to show, not only good faith on his own part, but also on the part of the seller, is 'supported by Kipp v. Lamoreaux, 81 Mich. 299; 2 How. Stat. § 6190. It is doubtful whether the court made the distinction between such a case, and the case of one who accepts a mortgage or bill of sale as security, clear to the jury; but, in the view we take of the case, we need not consider whether the charge, as a whole, was misleading, if both theories were open to the jury, for we think, fairly construed, that there is no evidence that this bill of sale was given as an absolute transfer of the property in question. Defendant’s second request on the trial was as follows:

“It was also the intention of all the parties to this conveyance that this transfer to the plaintiff should operate as security for a certain debt alleged to be owing to the plaintiff by the firm of Canfield Bros., and that after the plaintiff had sold the goods transferred to her, at such times as she saw fit, any surplus over and above the debt due her by Canfield Bros, would be returned by her to Canfield Bros.”

This request stated the effect of the testimony correctly, in so far, at least,. as it stated that the instrument was accepted as security. Section 6190, 2 fHow. Stat., does not, therefore, apply to this security. Cooper v. Brock, 41 Mich. 488. It follows that any omission to instruct the jury as to the effect of nondelivery of property conveyed by a bill of sale intended to be absolute could not have worked any injury to defendant, if the real issue was fully covered. We find that the charge of the court fully and clearly presented the issue as to bona fides, and that no error was committed to the prejudice of defendant.

Judgment affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    TOWNSHIP OF ERIN v. DETROIT & ERIN PLANK-ROAD CO.
    1. Corporations — Consolidation—Amendment or Charter.
    A special charter granted to a corporation in 1848 reserved to the legislature the right, after 30 years, to amend, alter, or repeal the same. A charter granted in 1850 to another corporation contained like terms. In 1857, by legislative authority, the interests of the two corporations came under one management, under the name and charter of the one first incorporated. Held, to amount either to the formation of a new corporation under the present Constitution (1850), reserving generally the right to amend, alter, or repeal corporate charters, or to a sale to the earlier corporation of the property and franchises of the later one, in which case the 30-year limitation would date from 1848,- — either theory supporting the enactment of amendatory legislation in 1879.
    2. Same — Plank-Road Companies — Permissive Statute — Revocation.
    A plank-road company, which is authorized by an act passed after its creation to substitute gravel for plank on the whole or any portion of its road, does not, by substituting unscreened gravel on part of the road, acquire an irrevocable privilege to use the same kind of gravel on other parts, after the passage of an act permitting the use of screened gravel only as a substitute for plank.
    3. Same — Injunction—Modirication.
    Where, after the issuance of an injunction restraining a plank-road company from using upon its roadbed any material except that authorized by the existing statute, an act is passed permitting the use of other materials, the injunction should be modified accordingly.
    4. Same — Misuser or Franchise — Equity Jurisdiction.
    In the absence of an existing or threatened nuisance, equity has no jurisdiction to enjoin a misuser of corporate franchises, or to compel the performance of corporate dirties. So held where a township and its highway commissioner sought to restrain a plank-road company from using upon its roadbed material other than that prescribed by its charter.

      Appeal from Macomb; Eldredge, J.
    Submitted October 14, 1897.
    Decided January 4, 1898.
    Bill by the township of Erin and August W. Nummer, highway commissioner of said township, to restrain the Detroit & Erin Plank-Road Company from using unscreened gravel upon its roadbed. Prom a decree for complainants, defendant appeals.
    Reversed.

      Canfield & Spier, for complainants.

      Byron R. Erskine, for defendant.
   Hooker, J.

In 1848 the Detroit & Erin Plank-Road Company was created by a special act of the legislature, which made the general plank-road act passed at the same session a part of its organic law. This act was passed before the adoption of our present Constitution, and provided that the legislature might alter, amend, or repeal said act by a vote of two-thirds of each branch, but that such alteration, amendment, or repeal should not be made within 30 years after the passage of' the act, except under circumstances mentioned, which apparently do not exist in this case. In 1879 an amendment was made to the general law, permitting the use of screened gravel, in place of plank, upon the whole or any portion of any plank road; this being an amendment of section 31, which was added to said act in 1857, and which authorized the substitution of gravel for plank upon the whole or a portion of any such road. The company substituted bank gravel for plank, upon a portion of its road, previous to 1879, and after that time sought to do the same with other portions, when this bill was filed to restrain the use of material other than as prescribed in the law passed in 1879. A fuller statement of the facts will be found in the case of Detroit & Erin Plank-Road Co. v. Macomb Circuit Judge, 109 Mich. 371, where the jurisdiction was sustained upon demurrer. The record shows that the material which the defendant sought to use upon said roacl did not conform to the requirements of the act of 1879. Defendant claims that it did fulfill the requirements of the law of 1857. We do not discover that it is contended that the act of 1879 did not receive a vote of two-thirds of each branch of the legislature, and the defense appears to rest upon the following claims: First, that the 30 years provided by law had not expired when the act of 1879 was passed; second, that it was not such an amendment as might lawfully be made if the period had elapsed.

The first point mentioned is based upon the further fact that in 1850 another company, known as the Erin & Mt. Clemens Plank-Road Company, was chartered by an act exactly like that of the Detroit & Erin Plank-Road Company; and in the year 1857 the legislature passed an act under which the interests of the two roads were permitted to, and did, come under one management, under the name and charter of the Detroit & Erin Plank-Road Company. It is contended that this extended the period of 30 years to 1880, the time limited in the charter of the Erin & Mt. Clemens road. We think there is no force in this contention, for the defendant must accept one of the following alternatives: This was either a consolidation of two existing corporations, and the formation of a new one, which would be subject to the reserved powers required by the Constitution, as held in the recent case of Smith v. Railway Co., 114 Mich. 460, or it was a sale of the Erin & Mt. Clemens franchises and property,. under a law which subjected its property to the Detroit & Erin charter, as the act of 1857 expressly provides, in which case the 30 years expired in 1878. In either case the act of 1879 was valid, so far as the time of its passage is concerned. This disposes of the first contention.

The second is predicated upon the proposition that the company had certain rights as to the construction of its road, which it had accepted and acted upon, and that these could not be taken away; i. e., that it had been given the right to gravel its road, and began to do so, under the law of 1857, and that it could not be required to substitute a different, and more costly, and perhaps less suitable, material than that law authorized. Under its original charter this company could not lawfully use gravel in the construction of its road. It has never been required to do so. Were the act of 1879 the only act that had been passed authorizing it, we should have no doubt that the company could not lawfully use unscreened gravel, under the familiar principle that corporate privileges must be accepted with the conditions upon which they are offered. There were two other acts of similar nature, — the first being passed in 1855 (Act No. 102, Laws 1855), designating screened gravel; the second, passed in 1857 (Act No. 184, Laws 1857), using the term “gravel” without qualification. The company did not avail itself of the privilege offered by the law of 1855. It did act upon that of 1857, and substituted gravel for plank on several miles of its road, though this is the only acceptance of this law as an amendment of its charter. But the various acts of 1855, 1857, and 1879 were merely permissive. They gave the plank-road company the privilege of substituting gravel for plank upon the whole or any portion of its road; and, whatever may be the rule as to the portion of the road where the substitution was made before 1879, the State might withdraw this permission as to the others. In other words, we think the acceptance of the act of 1857, by the substitution of gravel on a portion of the road, did not give to the company an irrevocable privilege to do the same throughout the line. The act of 1879 had the effect of withdrawing the permission to use unscreened gravel, and imposed a further condition in case the company should attempt to make a change in other portions of the road, which it was not required, but was at liberty, to do. It follows that the company had not a right to substitute the gravel it sought to use at the time the suit was commenced, and whatever we may think of the question of the material used, and the unfitness of screened gravel, we could hardly go so far as to nullify ' a statute upon a question of expediency. If screened gravel was not suitable, the company might have continued to use plank until it could have convinced the legislature of the necessity for a change in the law.

Although we should find the injunction, as originally made, was fully warranted by the law in force at the time, yet the question whether it should be made perpetual is not before us, because the circuit judge has decreed otherwise. Presumably, the complainants are satisfied with the modified injunction,, and the defendant is not complaining that this is too narrow, but too broad. As stated, the law of 1897 has supplanted that of 1879, and specifies the constituents of the gravel to be used on the improvements. Prom the time of its taking effect, these companies could substitute gravel for plank only upon the conditions therein stated, and the court would have been justified in modifying its injunction so that the company should be at liberty to proceed with gravel of the quality prescribed by such law. The bill was filed to restrain the substitution of such material as the company was then using, as well as any material other than that specified by the act of 1879. By reason of the change in the law in 1897, the township has no longer a right to insist on the use of screened gravel, and the company has a right to gravel its road in conformity to the law of 1897.

The bill of complaint was sustained by the circuit court and this court, upon the ground that it was filed to prevent a threatened nuisance, dangerous to the public. An examination of the testimony not only shows conclusively that there was no justification for the claim that the projected substitution of gravel for plank upon said road would be dangerous, but it is also satisfactorily shown that the road would have been an excellent one, and a radical improvement upon that which it'was to supplant, had the defendant been permitted to go on with its contemplated work.

Testimony was taken in relation to the railway constructed, with the consent of the township, within the limits of the highway, and a claim was set up that it was constructed nearer to the plank portion of the highway than authorized, and it appears to be insisted that this should be considered; but not only is there no showing that the wagon road will be injured, or travel made dangerous, but it is apparent that a straight railroad could not have been built elsewhere without destroying valuable shade trees, which complainants seem to insist should be done, at the expense of the road. There seems little equity in this contention, and we are convinced that there was no occasion for complaint upon this score.

It appears that the nuisance theory of the bill is disposed of, because disproved; and therefore the bill cannot be sustained unless we are to say that the complainants may proceed by bill in equity to restrain a misuse of a. franchise, or to compel the performance of corporate duties. There is abundant authority for saying that there are adequate legal remedies for this, if the State is disposed to complain. Counsel for the complainants say that this question was decided) in their favor upon the former hearing; but we do not so understand that case, which was expressly limited to statutory matters. See Act No. 103, Pub. Acts 1895. The authorities cited by counsel for the defendant sustain the proposition that 'equity has not jurisdiction to enjoin misuser where there is no nuisance. In Shackley v. Railroad Co., 98 Mass. 94, the court say:

“It is clear that any suit to compel the performance of a corporate duty, in which the petitioners show no interest different from that of the whole public, should be brought in the name of the attorney general, and cannot be maintained in the name of these petitioners.”

This case was an attempt to compel a railroad company to run the number of trains required by statute.

In People v. Railroad Co., 24 N. Y. 261 (82 Am. Dec. 295), it was held that a railroad company incurred a forfeiture of its franchise by abandoning the operation of its road, but that it could not be subjected to a suit in equity to compel performance of its duties, even by the attorney general.

Moore v. Railroad Co., 108 N. Y. 103, was a suit in equity to enjoin the change of location of a station. The court said that

‘ ‘ There would be great difficulty in maintaining an action to compel the performance of this obligation, even if the public interests required its observance. * * * But it is, we think, a conclusive answer, in this case, to the remedy by injunction, that no public injury will result from the proposed action of the defendant. The threatened violation of a mere naked legal right, unaccompanied by special circumstances, is not a ground for injunction, when, as in this case, legal remedies are adequate to redress any resulting injury.”

See, also, Attorney General v. Insurance Co., 2 Johns. Ch. 376, where it was said:

“It appears not to admit of doubt, nor do I understand it to be disputed, that if the defendants, as a corporation, have assumed powers not within their charter, the people of this State, by their attorney general, have a complete and adequate remedy at law, either by the common-law writ of quo warranto, or by an information in the nature of such writ.”

An examination of the cases cited by counsel for the complainants upon this point will show that they involve the question of nuisance, or rest upon statutes: Inhabitants of Springfield v. Railroad Co., 4 Cush. 63; Easton, etc., R. Co. v. Inhabitants of Greenwich Tp., 25 N. J. Eq. 565; Town of Burlington v. Schwarzman, 52 Conn. 181; Craig v. People, 47 Ill. 487. If, as contended, these complainants may take upon themselves the duties of the attorney general, and may proceed, by slow process of chancery proceedings, to enforce a rigid observance by corporations of all statutory duties, it will subject corporations and the public to the danger of much inconvenience. Railroad companies may be enjoined from operating their roads until the tracks are made to conform to the statutory regulations regarding ties, rails, ballast, cattle-guards, lights, signs at crossings, fences, and other particulars too numerous to mention. Trains might be stopped if the engine be not equipped with the statutory bell, if an officer could be found who would allow the writ. It is sufficient inconvenience where, as in this case, an injunction may issue upon a bill alleging a nuisance, and all work be stopped until the merits can be heard. This company was prevented for a year from making desirable public improvements on a road confessedly bad, and meantime the public was subjected to the risk of traveling upon a poof highway, while the defendant was compelled to assume the hazard of suits for accidents, or the unnecessary expense of temporary repairs, which it sought to avoid. It may be said that we should make a decree requiring the defendant to uáe material conforming to the act of 1897; but we are not able to say from the evidence that the gravel proposed to be used does not conform to, such act, and we would not be justified in ordering an injunction on suspicion, even if the equity jurisdiction attached, which we think it does not.

The decree of the circuit judge must be reversed, and the bill dismissed, with costs of both courts. Ordered accordingly.

The other Justices concurred.