text:
    DAY v. DAVEY.
    1. Tax Titles — Bill to Quiet Title — Possession—Fraud.
    The owner of the original government title to land, although not in possession, may maintain a bill in chancery to cancel tax deeds purchased by one in possession under an agreement with the owner to pay the taxes, on the ground that the title was bought in complainant’s interest, and held by fraud.
    2. Same — Evidence.
    The evidence is held to be sufficient to show an arrangement that the tax deeds should be purchased in the interest of the original owner, provided it shall be made to appear that the agent purporting to represent the original title was in fact the representative of the owner.
    3. Same — Omission oe Evidence — Remanding Case.
    The complainant having, through an oversight, omitted to show the fact of such agency, the case was remanded for the purpose of permitting him to supply the proof.
    Appeal from Newaygo; Palmer, J.
    Submitted November 21, 1902.
    (Docket No. 120.)
    Decided January 27, 1903.
    Bill by George A. Day against Egbert A. Davey' and Alice L. Davey to set aside certain tax deeds. From a decree for complainant, defendants appeal.
    Remanded, with, leave to complainant to supply proof.

      A. Cf. Day, for complainant.

      Martin Bozema, for defendants.
   Montgomery, J.

This is a bill to have certain tax titles held by defendant Egbert A. Davey declared void as against the title of the complainant. The bill alleges and the evidence shows that the complainant is the owner of the original government title. In March, 1897, Davey became the purchaser of tax titles for the years 1892 and 1893. The bill alleges that prior to April, 189G, the Home Guaranty & Trust Company owned the land covered by said tax titles, and by its agents employed one F. J. Covell and said Davey to cut the timber from the land, sell it, and use the money realized therefrom in paying up the back taxes on said land; that, under and by virtue of said employment and agency, the said Co veil and Davey entered upon said land, cut and removed certain timber, sold the same for money, received the money therefrom, and bought in the tax titles aforesaid in their own name with the money received from the sale of the timber cut by them from the land by'virtue of their confidential employment, and have ever since been in possession, in fraud of the rights of the Home Guaranty & Trust Company and its grantees, and that said Davey is now in possession by virtue of said, fraudulent purchase, and has no other rights; and that said tax titles are void in the hands of the defendants in a court of equity, as against the Home Guaranty & Trust Company and its grantees. The bill further alleges that the defense and objections to the tax titles, based on these confidential relations, cannot be made in a court of law, and are only cognizable in a court of equity. The circuit judge, upon the proofs made, granted the relief asked, except as to one description of land, which the complainant by his bill offered to release to Davey. The defendants appeal.

The contention of defendants is that this bill cannot be maintained as a bill to quiet title, for the reason that it does not aver that the complainant is in possession, but, on the contrary, avers possession in defendants. This contention is strictly correct, so far as it relates to an attempt to try the validity of the tax titles by alleging defects in the proceedings; but such is not the scope of the present bill. - This is a bill more properly to declare a trust. The case falls within Jones v. Smith, 22 Mich. 360. Where the bill brings the case within some other head of equity jurisprudence, possession by complainant is not essential to jurisdiction. The complainant’s right to attack these tax titles is an equitable right. On the face of the record the title is in defendant, but the theory of the complainant is that the title was bought in in complainant’s interest, and that defendant now fraudulently asserts a legal title to which complainant is equitably entitled. A resort to equity seems necessary to establish this right.

It is contended by defendants that there is no such proof of the arrangement between Covell and the representative of the original title as entitles complainant to assert the claim made. Without setting out the testimony at length, we think the inference that the circuit judge drew justified, viz., that the representative of the original title was given to understand that this title would be purchased in in the interest of the owner of such title, and that the defendant Davey was aware of this arrangement, and took his deed subject to it. The above statement is upon the assumption that the agent purporting to represent the original title shall prove to be and have been the representative of the owner at the time of the transaction in question. The testimony of complainant’s witness was to the effect that he represented one Calvin E. Brown as the owner of the original title. The connection of Calvin E. Brown with the Home Guaranty & Trust Company is- not made to appear by the testimony. There are indications that this was an oversight on the part of complainant.

The question is presented- whether we should reverse this decree without prejudice, or whether another course would not better meet the exigencies of the case. We are disposed to direct that the case be remanded, with leave to complainant to supply the proof showing that Calvin E. Brown was in some way the representative of the Home Guaranty & Trust Company at the time this contract made between Draver, complainant’s witness, and Covell was entered into; and, on such testimony being adduced, the case may be brought to hearing at the circuit. The appellants will recover the costs of this appeal.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    McBRIDE v. SCOTT.

    Joint Torts — Release.
    A release of one or more joint tort feasors releases the others, although it be agreed that they shall not be discharged.
    Error to Wayne; Rohnert, J.
    Submitted December 3, 1902.
    (Docket No. 142.)
    Decided January 27, 1903.
    Case by Joseph McBride against John Scott, Arthur Scott, and Maxwell H. G-rylls (copartners • as John Scott & Co.), Alexander Chapoton, James M. Wood, and others, for injuries caused by the collapse of a building. From a judgment for defendants on demurrer to the replication to their plea puis darrein continuance, plaintiff brings error.
    Affirmed.

      S. E. Engle, for appellant.

      Earl D. Babst and Otto Kir diner, for appellees John Scott & Co.
    ■ Brennan, Donnelly & Van De Mark, for appellees Chapoton and Wood.

      Walker & Spalding, for other appellees.

       Rehearing denied May 29, 1903.

   Montgomery, J.

The plaintiff brought this suit against a large number of defendants. The defendants demurred to the declaration. Judgment passed for the defendants. The case was appealed to this court, reversed, and remanded. 125 Mich. 517 (84 N. W. 1079). At this stage of the proceedings two of the defendants, Moore and Wiggins, paid to the plaintiff §1,507.68, and were given a release in the following terms:

Whereas, the Supreme Court has held that in the various Wonderland cases all the defendants were liable upon the allegations in the plaintiff’s declaration; and Whereas, James H. Moore and Enoch W. Wiggins are desirous of settling for their own individual liability, and to be therefore released from any further liability as to themselves personally; and they having paid to me the sum of $1,507.68, to be applied upon my claim for damages in this cause, I do hereby release the said Moore and Wiggins from all further liability, but reserving distinctly and expressly all my rights and claims against each and all of the other defendants.for any and all sums, in addition to the sum above paid, which I may be found entitled to. In other words, it is distinctly understood that no rights whatever are released as against the other defendants, and that the only benefit they may br shall receive by reason hereof is such as allowed by law in giving to them the benefit of the sum above paid by way of reduction pro tanto of the damages for which this suit was brought.
“The said Moore and Wiggins, in further consideration hereof, agree each to attend and give his testimony when called upon by due legal subpoena, and to furnish such plans, specifications, contracts, deeds, or other documents of any description whatever which may be required upon the trial relating to the matter in this suit, should the same be within their possession or control.”

The case was thereupon discontinued as to Moore and Wiggins. The other defendants interposed a plea puis darrein continuance, setting up this discharge of Moore and Wiggins as a bar to the action. The replication to this plea set out the agreement above quoted. The defendants demurred to the replication. Judgment passed for defendants on the demurrer, and the plaintiff brings error.

The question is very clearly presented by the record as to whether a discharge of one or more of numerous joint tort feasors is a bar to a further action against the remaining tort feasors in a case where the plaintiff in form reserves the right to proceed against the remaining tort feasors, and where the plaintiff does not acknowledge full satisfaction for the wrong complained of. The question never has been directly determined by this court, and it is not free from doubt. In 8 Bac. Abr. (Bouv. Ed.) tit. “Release,” p. 277, it is said:

“If divers commit a trespass, though, this be joint or several, at .the election of him to whom the wrong is done, yet, if he releases to one of them, all are discharged; because his own deed shall be taken most strongly against himself. Also, such release is a satisfaction in law, which is equal to a satisfaction in fact.”

That such is the effect of a bare release at the present day, plaintiff’s counsel concedes. But it is urged that, as the plaintiff had the right originally to proceed against one or all of the wrong-doers until full satisfaction is obtained, no one of the defendants has a right to complain of any arrangement made with his co-defendant for an adjustment of the plaintiff’s demand as against such co-defendant, unless either by a formal release under seal, which conclusively imports full satisfaction, or full satisfaction in fact. And authorities are not wanting which sustain this contention. On the other hand, it is contended that the discharge of one of several tort feasors amounts in law to a satisfaction of the plaintiff’s demand, and this without regard to the question of whether the release be by instrument under seal or by parol agreement.

One of the earliest American cases upon the subject is Ruble v. Turner, 2 Hen. & M. (Va.) 38, in which several had been guilty of an assault. An agreement, not under seal, was made between the plaintiff and one defendant, by which satisfaction was acknowledged for the part which such defendant took, and an attempt was made to reserve the right as to the other defendants. The court held this reservation inoperative, Mr. Justice Tucker saying:

“ It is a rule of construction that, if there be any clause or condition in a deed which is either contrary to law or repugnant to the nature of the estate created, it is void. Now, her.e the question is whether, by the first clause in this instrument of writing, Joel Motley was thereby discharged, and the plaintiff barred of his action against him; and I hold that he was, for the reasons already given. What, then, is the effect of this ? The law says that if one joint trespasser be released, or make accord and satisfaction, it shall bar a recovery against all the others. The plaintiff can no more change the law in this particular by any subsequent proviso or condition than he could, after a grant in fee simple by deed, restrain his grantee from selling the lands, or change the course of descents prescribed by law; neither of which will it be contended that he could do. The proviso, then, is merely void, and cannot prevent the legal effect of the accord and satisfaction made by one of the defendants.”

In 9 Bac. Abr. (Bouv. Ed.) p. 547, appears the following:

“Trespass against five. The plaintiff accepts a note from two, for a sum to be paid at a future day, in satisfaction as to them, but not to operate as a satisfaction as for the other defendants. The right to recover damages is gone as to all. ”

In Ellis v. Bitzer, 2 Ohio, 89 (15 Am. Dec. 534), it appeared that there were several joint defendants. A note was executed, of which the court said it was executed and received with the intent and for the purpose of discharging Williams and Adkins, the makers, from all further liability on account of their being jointly concerned with the defendants in the trespass, but with the express stipulation that it should not discharge the other co-trespassers. The court said:

“An accord and satisfaction of a joint trespass by one is good for all concerned. The act of one of several joint trespassers is the act of all. They all Unite to do an unlawful act, and each is responsible for the acts of the others. The plaintiff may elect to sue them jointly or separately, and may pursue them until he has obtained satisfaction; but he can have but one recompense in damages for the same injury. The plaintiff here agreed to take the note of Williams and Adkins, two of the trespassers, for §150, and to forbear to sue them; the note was given, and it was understood they were fully discharged; and he has thus made his election, not only as to the amount he would receive as a recompense for the injury he sustained from the assault and battery committed, by the defendants jointly with Williams and Adkins, but also of the persons from whom he would recover that recompense. * * * The accord and satisfaction mentioned in the third plea operated in law as a discharge of these defendants from liability for the injury complained of by the plaintiff, and it was not in the power of other persons to deprive them, by any agreement of theirs, of the benefit of this legal discharge.”

Brown s. Kencheloe, 3 Cold. 192, was decided in 1866. In this case the record does not clearly show a distinct reservation of the right of action as against the other wrong-doers, but it discloses a settlement and discharge of several of the joint tort feasors, and it was held that a discharge of one discharged all. To the same effect is Gilpatrick v. Hunter, 24 Me. 18 (41 Am. Dec. 370). See, also, Gunther v. Lee, 45 Md. 60 (24 Am. Rep. 504).

The plaintiff cites Bloss v. Plymale, 3 W. Va. 393 (100 Am. Dec. 752). In this case there were several joint wrong-doers, and a receipt was given to one in full of all dues, debts, and demands to date. The court declined to follow Ruble v. Turner, supra, and, basing its decision upon Herrington v. Harkins’ Adm’rs, 1 Rob. (Va.) 591, held that the payment did not discharge the other wrongdoers.

The case of Matthews v. Manufacturing Co., 3 Rob. (N. Y.) 711, is much relied upon. In this case there was a reservation in the following words:

“It being expressly understood and agreed that I do not hereby release or prejudice any claim, suit, or demand which I may have against any other person or persons or corporation for any matter or thing arising out of, or connected with, or relating to, any shipment or consignment,” etc.

The court held that this release of one joint wrong-doer did not discharge the other defendant. The value of this case as an authority is much impaired by a decision of the appellate division of the supreme court of New York in Brogan v. Hanan, 55 App. Div. 92 (66 N. Y. Supp. 1066). This was a case in which the question was directly presented. There were several joint trespassers. The defendants pleaded release to Duncan, a co tort feasor. The release of Duncan was read in evidence, and plaintiff reserved therein all right of action and claim for damages for negligently causing the death of plaintiff’s intestate against the defendants and all other persons who controlled the premises. The court held this release to be a bar, because the defendants were joint tort feasors.

The authority of Matthews v. Manufacturing Co. was also directly questioned in Mitchell v. Allen, 25 Hun, 543. In that case three were sued for negligence. One was discharged upon payment of $285, but with a stipulation reserving the right of action against the other defendants. It was contended that this release did not amount to a discharge of the other defendants, for the reason that it was not a technical'release under seal; the plaintiff relying upon Matthews v. Manufacturing Co. The court say of Matthews v. Manufacturing Co.:

“The record of the case is meager. Neither the nature of the action nor the contents of the release are stated.”

The court further say:

‘ ‘ This stipulation, not being under seal, cannot operate as a release, but it acknowledges a payment from Markham, for which it releases him from further claim of the plaintiff. So far as he is concerned, the stipulation was an accord and satisfaction for the tort. There is no doubt that the plaintiff is entitled to but one satisfaction for her injury. It is not necessary that this satisfaction be by \vay of a judgment, and satisfaction from one party discharges the others. The plaintiff, not seriously, denying all this, insists that her discharge of Markham arises solely out of her contract, and can extend no further than the express provision of the contract will permit. But, while Markham was discharged from his liability by th'e contract, the discharge of Allen and Porter arises as a necessary legal result from the satisfaction by and discharge of their joint tort feasor. When Markham was discharged, the action as to them was barred as a matter of law, and no contract between plaintiff and Markham can prevent the legal effect of his satisfaction.”

Another case which, to a certain extent, supports the contention of the plaintiff, is Ellis v. Esson, 50 Wis. 138 (6 N. W. 518, 36 Am. Rep. 830). The opinion is by Mr. Justice Taylor, and, because of his great ability, is entitled to considerable weight. He rests his decision, however, in part upon the case in 3 Rob. (N. Y.), which, as we have seen, has not been followed by the courts of New York. Furthermore, the court in Ellis v. Esson distinctly reserve the question as to the effect of a release of one tort feasor with a reservation of the right of action as against the others ‘ ‘,in an action for assault and battery, false imprisonment, or similar actions,” such as the present, “in which the damages rest mainly in estimation and opinion.” This reservation in the opinion of the court upon this subject detracts very materially from the force of the case as an authority, for it is difficult to conceive in principle how any such distinction can be drawn. If the discharge of one tort feasor, as matter of law, operates tó discharge his co tort feasor in any case, we are not able to see how the question of difficulty in establishing the exact damages can affect the holding in the particular case.

We are of the opinion that the better rule is that contended for by defendants in this case; that to admit of a settlement with one tort feasor under such circumstances as are here presented, and to hold that a reservation such as is here attempted saves the right as to other tort feasors, would open the door for the plaintiff in any case to acquire by successive settlements more than just compensation; or, as is said in Brown v. Kencheloe, supra, “The plaintiff in many instances would operate upon the fears of the defendants, and get from each full damages for the trespass committed.”

The judgment will be affirmed, with costs.

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


author: Moore, J.

text:
    BERLIN v. WILLIAM B. MERSHON & CO.
    Master and Servant — Negligence — Dangerous Machinery — Warning to Children.
    Where the testimony shows that a boy 16 or 17 years of age, who was injured in the cogwheels of a planer while waiting for the foreman to adjust the machine, had worked with the planer until he knew its manner of operation and the danger from the cogwheels, no recovery for the injury against his employer can be based upon a failure to warn him of the danger.
    Error to Saginaw; Snow, J.
    Submitted December 5, 1902.
    (Docket No. 45.)
    Decided January 27, 1903.
    Case by August Berlin, by next friend, against William B. Mershon & Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Beversed.

      Humphrey & Grant, for appellant.

      Wilber & Brucker and Fred L. Travers, for appellee.
   Moore, J.

The plaintiff recovered a judgment against the defendant for personal injuries received while in its employ. At the close of the testimony, a request was made that a verdict be directed in favor of defendant. This request was refused. A good many assignments of error were made and argued by counsel, but the important question is whether a verdict should have been directed as requested.

The plaintiff was at work upon a planing and matching machine at the time of the injury. There is a dispute as to his age at that time. He claims he was but 16 years and 3 months old. The defendant claims he was 1 year older. The machine upon, which he was hurt was known as a “ Schenck Machine.” Four of them were in use in the building where plaintiff was employed. A photograph of it is before us, which gives a better idea of its construction than it is possible to give in words. This machine had been in use several years. There is no claim that it was out of order, but it is claimed that, because certain cogwheels were uncovered, it was a dangerous machine, and that, because of the tender years of plaintiff, he should have been warned of the danger.

This machine was used for planing and matching lumber varying in length from 18 inches to upwards of 12 feet long. The bed of the machine was 9 inches wide. The boards to be planed or matched were put upon the bed of the machine, where they were engaged by two rollers which were driven by cogwheels, and carried forward to other rollers and knives, which did the planing or matching. One board was followed in close succession by another. Between the bed of the machine and its frame was a space of 9 inches. When boards shorter than 4 feet were to be planed, the person feeding the machine put a bag filled with sawdust, or some article of clothing, upon the bed of the machine, to serve as a cushion, and sat upon it, astride of the bed of the machine, with his legs hanging between the frame of the machine and its bed. The operator then took the short boards from a table at his left hand, where they were placed by another employé, put them upon the bed of the machine immediately in front of him, and pushed them forward until they were engaged by the rollers and carried forward; one board quickly following another. The cogwheels where the injury occurred were at the right end of the rolls, and between the bed of the machine and its frame. They were from 7 to 9 inches in diameter, and in plain view. They revolved in such a way that, if the operator got his fingers between them from the side nearest him, instead of his hand being drawn between the cogwheels it would be thrown away from them.

The accident occurred January 15, 1900. It is shown-by the testimony of the plaintiff that in April, 1897, he presented to the defendant a letter, the contents of which lie knew, signed by bis father, asking that he be .given employment, and stating he was 14 years old the 2d day of the previous October. He was given employment in and about the planing mill, and continued to work for the defendant until the accident, — a period of 2 years and 9 months. About 8 or 9 months before the accident, he was put at work upon the planer, where he was hurt, planing or matching lumber running from 4 feet long to upwards of 12 feet, and worked there steadily until the accident, except when boards shorter than 4 feet were run through the machine, when he changed off with an older brother, who ran a planer next to this one, and in plain view of it,so that he could see how his brother did the work, if he looked.

On the morning of January 14th, plaintiff was put at work shoving 18-inch boards through the machine, and worked eight hours that day. On the morning of the 15th he worked about á half hour, when he ceased pushing boards through the machine, to enable Mr. Piker to change the machine so that wider boards might be run through it. The plaintiff continued to sit upon the bed of the machine, and in some unaccountable way his hand was caught in the upper or back part of the cogwheel, and three fingers were badly crushed. His version of how it occurred is as follows:

On the direct examination:

Q. Tell the jury, as near as you can, how you got hurt.
“A. My hand got up there suddenly, and catched in there some way.
Q. Got between those cogs?
“A. Yes. I cannot tell just how it was. When I was at work my hand caught in there some way; came in contact with it.”

On the cross-examination he said:

Q. How did you get your hand in that place in operating that machine ?
“A. Why, caught it in there some way.
Q. How did you get it in there in pushing the boards into that machine ?
“A. I was not pushing the boards through. •
Q. In pushing the boards into that machine, it wasn’t possible for you to get your hand in there, was it ?
"A. No, sir.
Q. What were you doing when you'got your hand caught clear over the outside of this cog in there ?
“M. Do you mean what I was at work at ?
■ “ Q. What were you doing to get your hand in that position and get it caught ?
“A. We were changing the machine. * * *
Q. What were you doing while he was changing the machine ?
“A. Sitting there.
Q. Then you were doing nothing, were you not, at the time ?
“A. Yes.
Q■ .Well, now, how did you get your hand in there?
“A. I was so excited I could not tell.
Q. You were so excited you could not tell anything about it?
“A. No, sir. * * *
‘ ‘ Q. Why did you get closer to the machine when you were doing nothing than when you were feeding ?
“A. I don’t know. I slipped there.
‘ ‘ Q. Who slipped you over ?
“A. I did myself.
Q. You slipped over next to the machine?
“A. Yes.
Q. Who told you to do that?
“A. No one.
Q. The place the foreman told you to sit and operate the machine, if you had sat there, you would not have got hurt, would you ?
“A. No, sir.
Q. Now, you were sitting there doing nothing, so you slipped up next to the machine ?
“A. Yes.
“Q. Then how did you get your hand in there? What were you doing to get it in there ?
“A. Nothing. * * *
Q. What would cause you to slip on the frame ?
“A. I can’t tell you now how I got in there; I was so excited.
Q. You couldn’t tell anything about it?
“A. No, sir.
‘ ‘ Q. But you stated while he was fixing the machine you yourself moved yourself over next to the machine. Is that true ?
“A. I just moved over there. I didn’t know anything about anything.
Q. You must have moved over there without knowing' anything about it ?
“A. Not particular.
Q. You must have moved over there, to get your fingers in there ?
“A. Yes.”

He then stated he got closer to the cogwheels in order to straighten the boards that were on the table from which he took them. His cross-examination also showed the following:

Q. How long had you been working at that kind of work there ?
“A. I had for two years ago; a year and a half.
“ Q. How near was the planer that your brother ran to the one you ran ?
“A. Bight beside of each other; enough room to go through.
“ Q. As near as from me to that desk ?
“A. Just about.
Q. Right close together?
“A. Yes.
Q. So, whenever your brother was running this short stuff through, and had been running it through for eight or nine months, you saw just how he would do it ?
“A. Yes.
“ Q. And after looking at him you knew just as much about how to do it as he did, didn’t you ?
“A. Why, yes.
Q. Of course you did; and you knew all about that machine, didn’t you, and knew if you got your hand in those cogs around on the back side of that machine you would get them hurt ?
“A. No, sir.
Q. You didn’t know it ?
“A. No, sir.
“Q. Why?
“A. Because I never examined the machine before.
Q. Didn’t you know that if cogwheels are working in together, and you stuck your fingers down in there, it would hurt them ?
“A. Sure, it will hurt them.
Q. Did you know it on that day ?
“A. No, sir.
Q. Why?
“A. I paid no attention to it.
Q. Oh, on that day, and prior to that day, you didn’t know it would hurt if you stuck your finger into a cogwheel if it was coming together ?
“A. Anybody knows it would.
‘ ‘ Q. Then you knew if you got your fingers in ’there they would get hurt, at that time ?
“A. After I got them in I knew I did.
Q. Didn’t you know it before you put them in ?
“A. No, sir.
Q. before you got your fingers in the cogwheel you thought you could do that without their being hurt ?
“A. No, sir.
Q. You didn’t know it?
“A. No, sir.
Q. You didn’t know they would be hurt if you got them in there ?
“A. Yes; I knew if I got them in there they would be hurt.
“ Q. Certainly; and the way, — how you got your fingers in there, — you don’t know ?
“A. No, sir.
Q- Now, all the time you worked there those cogwheels were uncovered, that you worked at ?
“A. Yes.
Q. Cogwheels right in plain sight all the time ?
“A. Yes.
Q. You knew they were uncovered all the whole time ?
“A. Yes.
Q. Did you ever object to working with your machine with the cogwheels uncovered ? * * *
“A. No, sir.
Q. Never made any objection of any kind, did you?
“A. No, sir.
Q. Had you worked on that matcher as your steady job for nine months before you were hurt?
“A. Yes. * * *
‘ ‘ Q. The machine was exactly in the same condition the day you were injured as it was during all the time you worked there, wasn’t it ?
“A. Yes.
“ Q. It hadn’t been changed in any way, shape, or manner, had it ?
“A. No, sir.
Q. The same cogs?
“A. Yes.
Q. Worked in the same way ?
“A. Yes. * * *
Q. And when this 18-inch stuff would come to your planer, as I understand you, you had exchanged with your brother ?
“A. Yes; I did when he was there.
Q. And then he would run through the 18-inch stuff, and you would run through the stuff on his machine ?
“A. Yes.
“ Q. And you saw how your brother did the work ?
“A. Yes.
“ Q. Why did the foreman, then, have to. tell you how to do it, if you had known how ?
“A. He didn’t tell me how to do it. He told me to sit on it.
‘ ‘ Q. He didn’t tell you to sit on there, or what to do. You knew what to do, didn’t you?
“A. Yes.
Q. You had seen your brother do it time and again?
“A. Yes'.
“ Q. And you did the work exactly as you had seen your brother do it ?
“A. Yes.”

The plaintiff was a boy of at least ordinary intelligence, and, while his testimony is not ingenuous, it is impossible to read it without coming to the conclusion he had worked about and with this machine so long that he knew its manner of operation, the position of the cogwheels, the office they performed, and that if he got his fingers between the cogwheels he would be injured. It is difficult to see how any warning would have helped him, for he already knew the danger. Palmer v. Harrison, 57 Mich. 182 (23 N. W. 624); Ertz v. Pierson, 130 Mich. 160 (89 N. W. 680). The plaintiff was entirely familiar with the manner of operating the machine. For months he had used it himself. He had planed lumber from 4 feet to upwards of 12 feet in length, and he had seen his brother plane the 18-inch lengths, and had done so himself for an entire day before the accident. The case is unlike Allen v. Jakel, 115 Mich. 484 (73 N. W. 555), where a girl but 14 years of age, entirely without experience, was employed upon a mangle. It is also unlike the case of Ertz v. Pierson, 130 Mich. 160 (89 N. W. 680), where an inexperienced boy was set to operating a feed cutter without being instructed as to the manner of doing the work. In the last-named case there was a dissenting opinion, while it was stated in the prevailing opinion that the case was very near the border line. It is believed no case can be found where, under a record like this, a defendant was held liable. The principles announced in Palmer v. Harrison, 57 Mich. 182 (23 N. W. 624), Borck v. Nut Works, 111 Mich. 129 (69 N. W. 254), Journeaux v. E. H. Stafford Co., 122 Mich. 396 (81 N. W. 259), and cases there cited, control this case. A verdict should have been directed for defendant.

Judgment reversed, and a new trial ordered.

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

Grant, J. I think no new trial should be granted.


author: Carpenter, J.

text:
    LAKE v. PERE MARQUETTE RAILROAD CO.

    1. Labor Liens — Attachment—Service on Carrier.
    Under section 10761, 3 Comp. Laws', a sheriff may attach a car load of shingles for labor liens by serving a copy of the writ upon a station agent of a railroad company in whose pos. session the shingles are for the purpose of transit to a place within this State; although, at the time, they are in a differ ent county from that in which the service is made.
    2. Same — Delivery.
    In such case the railroad company should deliver the attached property at once to the sheriff.
    8. Same — Construction of Statute.
    The statute, in providing that no sheriff shall seize and detain such property while in transit, indicates the legislative intent to permit it to be attached by service of the writ upon the company.
    4. Same — Constitutional Law — Cost of Caring for Attached Property.
    The statute is not unconstitutional in not providing for the payment to the company of the expense of caring for the property from the time of service of the writ to the time the sheriff makes a demand for the property, since, in the case of a carrier, delivery should be made at once to the sheriff.
    Error to Clare; Dodds, J.
    Submitted December 2, 1902.
    (Docket No. 127.)
    Decided January 27, 1903.
    Trover by Sheldon Lake against the Pere Marquette Railroad Company. From a. judgment for plaintiff, defendant brings error.
    Affirmed.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

      John Quinn (C. W. Perry, of counsel), for appellee.

       Rehearing denied March 9, 1903.

   Carpenter, J.

On an agreed statement of facts, the court below held the defendant liable to plaintiff for the conversion of a car load of shingles, and assessed his damages at the sum of $100.20. On February 19, 1901, while this car load of shingles, was being carried over defendant’s road from Harrison, in Clare county, to Flint, in Genesee county, Mich., and less than two hours before it reached Flint, plaintiff, the deputy sheriff of the county of Clare, served on defendant’s station agent at Harrison eight copies of writs of attachment issued to enforce liens for labor in pursuance of Act No. 229 of the Public Acts of 1887, the same being 3 Comp. Laws 1897, §§ 10756-10770, under the claim that said service attached the car load of shingles in question by virtue of a provision in section 6 of said act, hereinafter set forth. The station agent at Flint, having no notice of said attachment suits, delivered the shingles in controversy to the consignee about nine hours after said service on the company’s agent at Harrison. The attachment suits proceeded regularly to judgment. On October 9, 1901, plaintiff demanded the shingles in controversy, and defendant refused to comply with said demand.

The defendant asks this court to reverse the judgment of the court below on two grounds: First, that the service of the writ in question was not authorized by law; second, that, if such .service was authorized, the law is unconstitutional.

That portion of the law relative to the service of the writ in question is found in section 6 of the act (3 Comp. Laws 1897, § 10761), and reads as follows:
“Provided, that no sheriff or other officer shall seize upon and detain any such property or products when in transit from the place where banked or deposited for shipment on the railroad, or for flotage in the stream or streams, or for transportation on the waters of this State, when such place of destination is within this State; but in case such products are in transit, or are in possession of any booming company or other person or corporation for the purpose of being driven or sorted and delivered to the owners, or to satisfy any statutory lien, then levy and attachment of said property or products may be made by serving a copy of said attachment upon the person or corporation driving or holding the same, who shall, from the time of such service, be deemed to hold the same both on their own behalf and in behalf of said sheriff or other officer, to the extent of.said attachment lien, until the same can be driven and sorted Out; and, when driven or sorted out, said sheriff or other officer may receive said products from said person or corporation, and the statutory lien' of said person or corporation shall not be released by the holding of said sheriff or other officer; and in case of sale by the sheriff or other officer on execution, and when the proceeds of sale shall not be sufficient to satisfy all liens in full, then such proceeds shall be distributed pro rata to all parties in interest, under the special order and direction of the court having jurisdiction in said attachment.”

Defendant contends that the proper construction of this language permits service of writs of attachment, in the manner attempted in this case, only when forest products are in the possession of some person or corporation for the purpose of being driven or sorted out, and therefore does not permit such service when a railroad company, as in this case, is merely carrying them for the'purpose of making a delivery. This contention is based on the latter part of the language above quoted. This language, it is to be observed, was copied verbatim from 2 How. Stat. § 8417, contained in an act giving a lien only for “services in cutting, skidding, falling, hauling, scaling, banking, driving, running, rafting, or booming any logs', timber, cedar posts, telegraph poles, railroad ties, tan bark, shingle bolts or staves.” That act was repealed, and its application extended to “lumber, shingles, and all other forest products,” by the act under consideration. The prohibition of an actual seizure of products deposited for shipment on the railroad sufficiently indicates the legislative intent to permit them to be attached by service of the writ on the company. Otherwise, we are forced to the conclusion, forbidden by the statute, that the legislature intended to exempt forest products altogether from attachment while in the possession of a railroad company.

Does the language of the latter part of the clause under consideration make this intent altogether ineffective? The statute reads (the brackets are inserted by us for the purpose of this opinion) •.

“In case such products are in transit [or are in possession of any booming company or other person or corporation for the purpose of being driven or sorted and delivered to the owners, or to satisfy any statutory lien], then levy and attachment of said property or products may be made by serving a copy of said attachment upon the person or corporation driving or holding the same.”

If we omit the clause inclosed in brackets, as, clearly, •we may for the purpose of construction, authority is given (and this justified the service under consideration) to attach forest products in transit by serving a copy of said attachment upon the corporation holding the same. Thus far, then, there'is no difficulty. The difficulty arises from the words following, namely:

“Who shall, from the time of such service, be deemed to hold the same both on their own behalf and in behalf of said sheriff or other officer, to the extent of said attachment lien, until the same can be driven and sorted out; and, when driven or sorted out, said sheriff or other officer may receive said products.”

Does this language restrict the right to attach “by service of a copy of the writ ” to cases where the products are yet to be driven or sorted out ? The statute expressly authorizes the service in three cases: (a) Where the products are in transit; (b) where they are in the possession of any booming company or other pei’son or corporation for the purpose of being driven or sorted and delivered to the owners; (c) where they are held to satisfy any statutory lien. The clause which creates the entire difficulty is that permitting the custodian of the attached products to hold the same, and to continue his custody “until the same can be driven and sorted out,” and has application to but one of the cases in which this method of attachment is authorized. We are clearly not warranted in confining to one case the right expressly given in three, because provision is made for the continuance of the custodian’s possession in that one only. It is rather to be presumed that the legislature thought that this was the only case in which the attached products would not be in a condition for immediate delivery, and therefore made provision for no other such case. It wocld have been wise for the legislature to state explicitly when products attached in transit should be delivered; but the legislative intent that such delivery should take place at once is clearly manifest, and only a species of technical reasoning would warrant us in construing the statute as though it were not stated.

It is claimed that the statute is unconstitutional, because “the carrier must retain possession until the sheriff makes demand for delivery, it can only do so at considerable expense,” and no provision for the payment of this expense is made. It is a sufficient answer to this contention to say that the statute, in óur judgment, as already indicated, intends the sheriff to take immediate possession of the attached products. From the time of the attachment, the attached products are in his official custody, constructively, if not actually,. and express authority is given the officer to “pay the storage on such products during the time that he shall have the custody thereof by virtue of such writ of attachment, * * * which shall be included and taxed in the bill of costs or disbursements.” 3 Comp. Laws 1897, § 10769. In the case at bar, this provision has no application. Defendant could make no claim for storage on the ground that plaintiff did not demand possession for several months. By delivering the products to the consignee in disregard of plaintiff’s rights, defendant not only lost all right to compensation for their storage, but made itself legally chargeable for their conversion.

The judgment of the court below is affirmed.

The other Justices concurred.


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    SALTONSTALL v. BOARD OF REVIEW OF CITY OF CHEBOYGAN.
    Taxation — Assessment—Cash Value — Wild Lands — Constitutional Law.
    Const, art. 14, § 12, requiring all assessments to be on property at its cash value, does not permit an assessment on any other basis than actual value; and a provision in a city charter that wild and unimproved lands shall be assessed at their true cash value considering the location, and not according to any prospective or supposed value of such lands as city property, is invalid.

      Certiorari to Cheboygan; Shepherd, J.
    Submitted December 2, 1902.
    (Calendar No. 19,443.)
    Decided January 27, 1903.

      Mandamus by Brayton Saltonstall to compel the board of review of the city of Cheboygan to modify an assessment. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Cross & Harpster (DeVere Hall, of counsel), for relator.

      C. 8. Beilley, for respondent.
   Montgomery, J.

The charter of the city "of Cheboygan contains the following provision:

“ In assessing lands within said city which are held and used merely as farming lands, or which are wild and unimproved, the supervisor shall assess such farming lands and. such wild and unimproved lands at their true' cash value considering the location of the same, and not according to any prospective or supposed value of such lands as city property.” Act No. 333, Local Acts 1889, chap. 25,

We shall assume that the pleadings in this case fairly raise the question of the constitutionality of this provision. Const, art. 14, § 12, provides that all assessments hereafter authorized shall be on property at its cash value. We are all agreed that this constitutional provision does not leave room for a different basis of valuation of real property as vacant or occupied. Nor can it be evaded by authorizing a valuation of one class of property based upon its value for a particular use only. To use an extreme illustration, a valuable painting might be framed so as to be available for use as a fire screen. Yet it would not do to say that this constitutional requirement was met by authorizing the assessment of such a piece of property at its cash value as a fire screen. The only safety is in refusing to fritter away this valuable protection to the taxpayer by any refined construction. The intent of the framers of this provision is perfectly clear, and we hold that the actual value of the land must be the basis for assessment. See cases cited in note to section 3847, 1 Comp. Laws. Cases cited from other jurisdictions, construing constitutional provisions essentially different from ours, are of little aid, and certainly cannot be given the force of authority justifying a distortion of plain English.

It follows from the views expressed that the decision of the circuit court should be affirmed, and the writ of mandamus denied, with costs.

The other Justices concurred.


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    AUDITOR GENERAL v. HOFFMAN.
    1. Appeal — Taxes—Objections Not Made in Answer.
    Objections to a tax which were not.made in the contestant’s answer to the petition of the auditor general will not be considered on appeal.
    2. Municipal Corporations — Special Assessments — Waiver of Irregularities.
    Where a city charter does not provide that a petition for paving or macadamizing streets shall be signed by any specific number or class of inhabitants, and does not expressly deny to the council the authority to levy a special assessment for such improvement without a petition, a landowner, knowing that a pavement is being laid, and making no objection until he files his answer to the tax petition of the auditor general, cannot complain that the petition to the council to “take immediate steps to repair and place the street in first-class condition ” was not sufficiently specific.
    3. Same — Resolution of Council — Necessary Vote to Pass.
    A city charter provision that no resolution or proceeding of the common council imposing taxes or assessments, and no ordinance, shall be passed at the same meeting at which it is introduced, if there be any objection; and no ordinance shall be passed except by a two-thirds vote of the aldermen elect, —does not require a resolution imposing taxes to be passed by a two-thirds vote.
    4. Same — Special Assessment Roll — Confirmation by Council.
    The action of the common council of a city in passing a resolution that a special assessment roll, as reported by the city engineer, “be and the same is hereby accepted and adopted,” will be treated as a confirmation, under a charter provision requiring that the common council shall by resolution confirm the same.
    5. Same — Presumptions as to Performance of Duty.
    It will not be presumed that a common council neglected to perform its duty in reviewing and examining a special assessment roll, as required by the city charter.
    6. Same — Notice of Hearing.
    A charter provision which requires notice that a special assessment roll has been completed to be given in two weekly publications of the official newspaper of the city, and allows two weeks from the first publication for filing objections, is not invalid for failure to provide reasonable notice.
    7. Same — Review oe Roll.
    Where the charter requires the common council to review a special assessment roll and consider objections, it is competent for the legislature to leave the time and place of hearing to be determined by the council.
    Appeal from St. Clair; Law, J.
    Submitted December 4, 1902.
    (Docket No. 144.)
    Decided January 27, 1903.
    Petition by Perry F. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by Wesley L. Hoffman. From a decree for petitioner, contestant appeals.
    Affirmed.

      Joseph Walsh (Beach & Benedict, of counsel), for petitioner.

      William T. Mitchell, for contestant.
   Carpenter, J.

Contestant appeals to this court from a decree made by the circuit court for the county of St. Clair, in chancery, overruling his objections to a special assessment on his land for macadamizing Gratiot avenue in the city of Port Huron. Several objections to the tax are made in this court which were not contained in contestant’s answer to the petition of the auditor general. These, under the authority of Auditor General v. Maier, 95 Mich. 127 (54 N. W. 640), we cannot consider.

The objections urged against the tax which are open to consideration by this court are four:

(1) That the common council of Port Huron was not asked by petition to order the macadamizing in question.
(2) That the resolution which approved the assessment roll and determined the tax to be paid by the different owners in the assessment district was not adopted by a two-thirds vote of the common council.
(3) That the assessment roll was not confirmed, as required by the charter of the city of Port Huron.
(4) That the charter of Port Huron does not provide a reasonable notice or adequate hearing to persons affected by assessments of this character.

Each of these questions will be considered separately.

The council was, on March 21, 1898, petitioned to “take immediate steps to repair and place in first-class condition such portions of Gratiot avenue, from the north curb line of State street to the city limits, that may, in the opinion of the superintendent of public works and the city engineer, require such repairs to place the roadway in serviceable condition during the summer months.” Section 1 of chapter 17 of the charter of the city of Port Huron gave the' common council authority “to levy and collect special assessments for the following purposes: First, to defray the costs and expenses of * * * paving * * * or macadamizing of any of the streets; * * * second, to defray the costs and expenses of repairing any of the streets.” Act No. 381, Local Acts 1895. The section immediately following reads as follows:

“When a petition shall be presented to the common council asking for the grading, curbing, paving, graveling, claying, planking, or macadamizing of any street, lane, alley, highway, or avenue in said city, or for improving the same by a combination of any such methods, or for repairing to such an extent that a special assessment may be made therefor, or for the construction of any drain or sewer, * * * the common council shall determine by resolution as to the necessity of doing such work. ”

There is no provision in the charter that the petition referred to in the last section shall be signed by any specified number or class of the city’s inhabitants, nor does the charter expressly deny authority to the council to levy and collect special assessments except when they are made in pursuance of a petition. The macadamizing in question was done in 1898. Contestant testified that he knew that the pavement was being laid, but raised no protest to the same, and he made his first objection on the 19th day of March, 1902, when he filed the objections under consideration. Contestant cannot, under these circumstances, complain because the petition was not more explicit.

Did the charter require that the resolution fixing the assessment district and determining the taxes to be paid by the different owners should be adopted by a two-thirds vote of the aldermen? This depends upon the construction to be given to section 15 of chapter 7 of the charter, which reads as follows:

“No resolution or proceeding of the common council imposing taxes or assessments, and no resolution or proceeding incurring any debt or liability in excebs of the sum of fifty dollars, and no ordinance, shall be passed at the same meeting at which it was introduced, if there be any objection made thereto by any of the aldermen present; and no ordinance shall be passed except by a two-thirds vote of the aldermen elect, and such vote shall be taken by yeas and nays, to be entered upon the record; and the yeas and nays shall be taken upon any question entered upon the record upon the demand of any one of the members present.” Act No. 381, Local Acts 1895.

Contestant contends that the language, ‘ ‘ except by a two-thirds vote of the aldermen elect, and such vote shall be taken by yeas and nays, to be entered upon the record,” applies to resolutions or proceedings imposing taxes or assessments. We do not agree with him. In our judgment, it applies only to ordinances.

Was the special assessment roll confirmed, as required by the charter? The charter (chapter 17, § 7), at the time these proceedings were taken, provided:

“The common council shall review said roll, and consider the objections, and may refer the said roll back to the engineer for further revision or correction, and, when satisfied with the same, it shall by resolution confirm the same.” Act No. 445, Local Acts 1897.

What was done was this: The city engineer reported that he had made out a special assessment roll for consfa’ucting the Gratiot-avenue macadamizing; -that, “on completion of the same, it was duly advertised in the official paper of the city of Port Huron for two weeks, and, no objection having been filed to the same, I have certified it, as required by the charter, and submit herewith for confirmation.” The records show that the common council adopted the following resolution: “Resolved, that the special assessment roll ‘ 48 ’ for paving Gratiot avenue, as reported by the city engineer, be and the same is hereby accepted and adopted.” This was, in everything but in name, a confirmation, and should not be held nugatory simply 'because that name was not used. Nor is it to be supposed, as contestant’s counsel urges, that the common council did not review or examine said roll. It should be presumed that the council did its duty.

Did the charter provide a reasonable notice and adequate hearing to the persons affected by the assessment? The notice required by the charter was two weekly publications in the official newspaper of the city, and two weeks from the first publication was given for the filing of objections. The authority belongs to the legislative and not to the judicial department of government to determine what notice should be given in cases of this character, and how it should be given. Courts will uphold this legislative determination unless it clearly appears to result in a denial of justice. The determination in question, in our opinion, leads to no such result, and we are referred to no authority which so holds.

It is also urged that there was no provision for the hearing of objections which might be made during these two weeks. The charter provides, as already indicated, that “the common council shall review said roll, and consider the objections.” It is true that no provision is made as to when and where these objections shall be heard. We think that it was entirely competent for the legislature to leave this matter to be determined by the council. It is to be presumed that, in considering the objections, as required by the charter, the council will give a hearing suited in time and place to the exigencies of the situation. Contestant, having made no objection, is in no position to complain of improper treatment in this particular.

It results from this opinion that the decree of the court below should be affirmed.

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


author: Grant, J.

text:
    MOROSS v. MOROSS.
    1. Husband and Wife — Divorce—Dower.
    A wife wlio has obtained a divorce from her husband on the ground of extreme cruelty is entitled to dower in his lands in the same manner as if he were dead.
    2. Same — Decree—Ejectment—Statute of Limitations.
    A divorced wife’s right to dower in her husband’s lauds is not based upon the decree, but upon the statute (3 Comp. Laws, § 8639), and therefore her right of action to recover possession is not barred in 10 years, the time limited for bringing actions upon judgments and decrees, but only by the 15 years allowed by the statute (3 Comp. Laws, § 9714, subd. 3) for the recovery of the possession of lands.
    Error to Wayne; Carpenter, J.
    Submitted January 7, 1903.
    (Docket No. 13.)
    Decided January 27, 1903.
    Ejectment by Louise Moross against Victor J. Moross and another. Prom a judgment for plaintiff on verdict directed by the court, defendant Moross brings error.
    Affirmed.
    Plaintiff obtained a decree of divorce from her husband, the defendant, for extreme cruelty, on July 29, 1889. On January 16, 1901, she instituted this suit in ejectment to recover her dower interest in her husband’s lands. The defense is that her right of action is barred by the statute of limitations. The court below found against this contention, and directed a verdict for the plaintiff.

      William B. Jackson (Cutcheon, Stellwagen & Mac-Kay, of counsel), for appellant.

      William E. Walsh (George Gartner, of counsel), for appellee.
   Grant, J.

(after stating the facts). If the action is based upon the decree, the defendant’s contention should prevail, because every such action must be brought within 10 years after the entry of the decree. 3 Comp. Laws, § 9751. If it is not based upon the decree, then the plaintiff! must prevail, because this is a real action, and the'statute gives her 15 years within which to bring it after the right has accrued. 3 Comp. Laws, § 9714, subd. 3. The decree is entirely silent as to the property rights of the plaintiff. No alimony, even, was decreed her. She was granted a decree, with the custody of her minor child.

A wife’s inchoate right of dower becomes fixed and recoverable by suit on the happening of two events,— death (3 Comp. Laws, § 8918), and divorce for certain causes (3 Comp. Laws, § 8639). Extreme cruelty is one of the causes covered by the statute. Rea v. Rea, 63 Mich. 257 (29 N. W. 703). The statute gives her “dower in his lands in the same manner as if he were dead.” As to her property rights, he became legally dead when the divorce was granted. In establishing this right, the law makes no distinction between actual death and legal death. Her right is not based upon the decree, and her suit is not brought upon it. The decree is the evidence only that the event had happened by which her right of action to recover that which the statute gives her had accrued. The statute, not the decree, gave her dower in her husband’s lands. The decree, under the statute, simply fixed the time when her right of action accrued. Whether the death be actual or legal, the statute of limitations in regard to real actions controls, and it follows that the judgment must be affirmed.

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


text:
    GREGORY v. TOMPKINS.
    1. Wills — Interpretation.
    The primary object in the interpretation of a will is to ascertain, if possible, the intent of the testator, and give effect to it.

      2. Same.
    A will should be so construed as to give effect, if possible, to every part of it.
    3. Same.
    A testator devised land to S., and charged her with the pay. ment of $2,000 to A. To A. he gave $3,000, to be paid as soon as the estate was settled; $2,000 of it to be paid out of the share of S., and the balance out of any portion of the estate not specially devised. He directed his executors to use $2,500 to buy a home for A. within a reasonable time after his death, and to pay over to the parties entitled thereto the property left by him. Held, that A. was entitled to both $8,000, and $2,500 to be invested in a home.
    Appeal from Wayne; Donovan, J.
    Submitted January 7, 1903.
    (Docket No. 11.)
    Decided January 27, 1903.
    Bill by Fred E. Gregory, surviving executor of the last will and testament of William Ten Eyck, deceased, against Anna M. Tompkins, Maria B. Sloss, and Sarah Tompkins, for a construction of said will. From a decree for defendant Anna, complainant and the other defendants appeal.
    Affirmed.

      Orla B. Taylor, for complainant.

      Ralph Phelps, Jr., for defendants Sloss and Sarah Tompkins.

      Roioland M. Connor, for defendant Anna M. Tompkins.
   Moore, J.

The bill of complaint is filed in this cause to obtain a construction of paragraph 7 of the will of William Ten Eyck, deceased. He left an estate aggregating about $235,000, which he disposed of by the will which is to be construed. Mr; Ten Eyck was an old man when he died. His heirs at law are a niece 17 years old, a nephew 5Ó years old, and five sisters, the youngest of whom is 64 years old, and the oldest 80 years old. A sister of Mr. Ten Eyck married Daniel D. Tompkins after the death of his first wife, who was the mother of Daniel D. Tompkins, Jr. This son married Anna M. Tompkins. He died in .1896, leaving a widow, Anna M. Tompkins, the defendant, and three minor children. The defendants Maria B. Sloss and Sarah Tompkins are the residuary legatees under the will. After the provisions of the will are carried out, they will each receive upwards of $75,000.

Those parts of the will which are necessary to an understanding of the case read as follows:

“Fifth. I give and devise * * * the next eighteen and three-quarters (18|) feet to Sarah Tompkins, and the remaining thirty-seven and one-half (37£) feet to Maria B. Sloss; and I do hereby charge the said Sarah Tompkins, and the eighteen and three-quarters (18f) feet given to her, with the payment of the sum of two thousand ($2,000) dollars, to be paid to An.na M. Tompkins, as hereinafter provided. * * *
“Seventh. I give and bequeath to Anna M. Tompkins, widow of Daniel D. Tompkins, Jr., deceased, the sum of three thousand ($3,000) dollars, to be paid as soon as my estate is_ settled, two thousand ($2,000) dollars of said sum to be paid out of the share of Sarah Tompkins, as herein-before provided, and the balance of one thousand ($1,000) dollars to be paid out of the portion of my estate not especially devised or bequeathed to any person; and I direct that my executors shall use the sum of twenty-five hundred ($2,500) dollars for the purpose of buying a home for the said Anna M. Tompkins, the same to be purchased within a reasonable time after my death. * * *
‘ ‘ Fifteenth. I do hereby nominate and appoint as executors of this, my last will, my friends Fred E. Gregory, of Dearborn, and William Daly; * - * * and I direct my said executors, or the survivor of them, to pay over to the parties entitled thereto the property left by me.”

Counsel are agreed there is but one question in the case, and that is, Does the seventh paragraph of testator’s will give to Anna M. Tompkins $3,000 in cash, and, in addition thereto, $2,500, to be converted into a home by the executors, or does it give her only $3,000, and direct •the executors to purchase the $2,500 home out of the $3,000? The circuit judge construed the will to give to Mrs. Tompkins not only the $3,000 in cash, but $2,500 to be invested by the executors in a home for Mrs. Tompkins. From that decree the surviving executor and defendants Maria B. Sloss and Sarah' Tompkins have appealed, claiming that the $2,500 invested in a home should be taken from the $3,000, leaving but $500 to be paid over to Mrs. Tompkins.

- The ■ following principles of law are well recognized in this State:

“ The primary object in interpreting a will is to reach, if possible, the intent the testator had in mind, and give effect to it. Rock River Paper Mill Co. v. Fisk, 47 Mich. 212 (10 N. W. 344).
“The whole will is to be taken together, and is to be so construed as to give effect, if possible, to every part. Thurber v. Battey, 105 Mich. 718 (63 N. W. 995); Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111); Smith v. Jackman, 115 Mich. 192 (73 N. W. 228).”

They do not, however, afford very much aid in construing this will.

Without discussing very much in detail the reasons which lead us to the conclusion, we are of the opinion the circuit judge gave a right construction to the provisions of the will. It will be observed that by paragraph 5 of the will Mr. Ten Eyck devised to Sarah Tompkins certain real estate, and charged her, and the real estate devised, with the payment of $2,000, to be paid to Anna M. Tompkins as thereinafter provided. By paragraph 7 he gives and bequeaths her the sum of $3,000, to be paid “as soon as my estate is settled, $2,000 out of tbe share of Sarah Tompkins, and the balance of $1,000 out of the portion of my estate not especially devised or bequeathed to any person ; and I direct that my executors shall use the sum of $2,500 for the purpose of buying a home for the said Anna M. Tompkins, the same to be purchased within a reasonable time after my death.” By paragraph 15, executors are appointed, who are directed to pay over to the parties entitled thereto the property left by the testator.

By the provisions of the will, within a reasonable time after testator’s death the sum of $2,500 is to be used by the executors for the purpose of buying a home for Mrs. Tompkins. This would indicate the executors are not to wait until the estate is settled before making this investment. In the early part of the paragraph a bequest of $3,000 was made to Mrs. Tompkins, to be paid as soon as the estate was settled. If the testator had intended the executors should deduct from this sum the amount invested in the home, it would have been very easy for him to say so, but he did not do so. He provided generously for the other objects of his bounty. While the case is not free from doubt, we think the circuit judge made a proper disposition of the case.

The decree of the court below is affirmed.

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


text:
    LASLEY v. PRESTON.
    1. Judicial Records — Presumption of Notice.
    After the lapse of 20 years, an order of the probate court will be presumed to have been based on due notice.
    2. Evidence — Ancient Documents — Presumption.
    An agreement for the settlement of an estate, filed in the probate court, will be presumed to be genuine after the lapse of £0 y^aro.

      3. Judicial Records — Division oe Estate — Parties.
    An order of the probate court dividing an estate in accordance with the terms of an agreement necessarily involves a determination that all the parties in interest were before the court.
    4. Evidence — Records oe Probate Court.
    A probate record of the proceedings in the settlement of an estate is not rendered inadmissible by the fact that there were entered therein purported copies of powers of attorney and releases which had been used as evidence by the probate judge in settling the estate.
    5. Estates oe Decedents — Construction of Agreement.
    The heirs of a decedent entered into an agreement by which part of them-assigned to S. “ all their right and interest in and to the share of the whole of the estate remaining as is hereinafter more fully specified.’’ A subsequent provision recited that the heirs should be tenants in common, and that S. should receive four out of fifteen shares. Held, that S. was not entitled to the whole estate by the assignment, but the language quoted referred to the share allotted to him in the subsequent provision.
    Error to Mackinac; Shepherd, J.
    Submitted January 15, 1903.
    (Docket No. 52.)
    Decided January 27, 1903.
    Ejectment by George Lasley, Peter Lasley, and Isabel A. Lasley against William P. Preston. From a judgment for plaintiffs on verdict directed by the court, defen dánt brings error.
    Affirmed.

      Henry Hoffman {A. H. By all, of counsel), for appellant.

      M. Brown (James McNamara, of counsel), for appellees.
   Montgomery, J.

This is an action of ejectment, brought to recover eight-fifteenths part of certain lands described in the declaration. The plaintiffs had judgment, and the defendant brings error.

The plaintiffs’ title is derived through William Lasley and George Lasley, who were, by the decree of the probate court of the county of MichilimacMnac, decreed to be each entitled to four-fifteenths of the land as heirs of Samuel C. Lasley, deceased, which decree bears date March 6, 1848. -The questions presented relate to the admissibility of this record in evidence and to the effect of the decree. It is contended by the defendant that the record is not admissible as evidence

“1. For the reason that none of the parties to the agreement, as appears by said agreement, appeared before the court at the time of the presentation of this agreement, or at the time of the making of the order based upon this agreement.
“3. That the said agreement was not signed by John D. Lasley, one of the parties in interest, or by any one authorized to sign for him.
“3. That it does not appear from said record that the parties to the said agreement were all the parties interested in said estate, and in the land in question, as heirs of Samuel C. Lasley.
“4. That a part of said record, if not all of it, was made up of a record of instruments not authorized by law to be recorded in the office of the probate court.”

As to the first and second of these objections, we think the presumption in favor of jurisdiction should obtain. In 1 Grreenl. Ev. (16th Ed.) p. 115, the rule is correctly stated:

“The presumption will also be made, after 30 years, in favor of every judicial tribunal acting within its jurisdiction, that all persons concerned had due notice of its proceedings.”

There can be no doubt that the probate court had jurisdiction to determine the heirs and to make the order which it entered, and therefore this presumption should be indulged.

The third contention, viz., that it does not appear that all the parties interested in said estate were parties to the agreement entered into, may be answered by the same considerations, for it was not alone the agreement of the parties which appears of record, but the determination of the court that the estate of Samuel C. Lasley, deceased, should be. divided in accordance with the terms of the agreement, and this, of necessity, involved the determination that the parties interested in the estate were before the court.

The fourth point is based upon the fact that there were entered of record purported copies of powers of attorney, releases, etc., which were certified by the probate judge to be a true copy. We think the objection mistakes the purpose of these entries. These instruments were not recorded as notice to the world of the rights which they conferred, but appear to have been entered by the probate judge as a part of the evidence upon which he acted, or, more properly, as copies of the evidence upon which he acted. This was probably an unnecessary proceeding, as, had the probate court determined the facts as those copies of instruments would indicate them’ to exist, the record would have been conclusive without any entry of the evidence upon which it was based.

The remaining contention is that, by the terms of the agreement, the title to the land is shown to have been vested in Henry Silby, and this is based upon the agreement, which is in part as follows:

“And, for value received of George Lasley, the. said John Lasley assigns to said George Lasley, his heirs, executors, administrators, and assigns, all his right and interest in and to the whole of said estate, except as to the said Lasley farm; and in consideration of certain sums advanced by said Henry Silby for the said estate, and for other valuable considerations, the said parties of the first part, for themselves and for each of their heirs, executors, administrators, and assigns, have assigned and hereby do assign to the said Henry Silby, and to his heirs, executors, administrators, and assigns, all their right and interest in and to the share of the whole of the estate remaining as is hereinafter more fully specified; the said pieces and parcels of land, with their hereditaments and appurtenances, which are hereby intended to be divided among the said several parties, being as follows.”

This is subsequently followed by another provision:

“It is hereby agreed by and between the above parties, and each one, for himself and herself, and for his and her heirs, executors, administrators, and assigns, that the whole of the above-mentioned property remaining for distribution in the estate of Samuel C. Lasley shall be held and owned by said William Lasley, George Lasley, James Lasley, Julian Silby, Samuel J. Irvine,, and Henry Silby as tenants in common in manner following, to wit: The said William Lasley shall be entitled to four shares, the said George Lasley shall be entitled to four shares, the said James Lasley shall receive and be entitled to one share, the said Julian Silby shall receive and be entitled to one share, the said Samuel J. Irvine shall receive and be entitled to one share, and the said Henry Silby shall receive and be entitled to four shares; making in all fifteen shares or parts.”

And by the determination of the court:

“The remainder of said real estate, being the two lots in the village of Mackinac, more fully described by said agreement (see pages 61, 63, and 64), to be held in common by William Lasley, George Lasley, James Lasley, Julian Silby, Samuel James Irvine, and Henry Silby (the heirs of Margaret Drew and Samuel Lasley having received their shares, as is shown by their releases — see folios 64, 65, 66, and 67 — ; also John Lasley, one of the heirs, having disposed of his interest to George Lasley, as is shown by his power of attorney — see folios 70 and 71 — ), as per said agreement, being deemed a full and final administration and bar to all further claims or demands against the said estate.”

The defendant’s contention is that, by the first clause quoted, the entire right of the estate in these lands was to be assigned to Henry Silby. We do not so construe it. It appears that Henry Silby had become entitled by assignment to certain interests in this land in excess of his interest as heir, so that under the agreement he was entitled to take four shares of the fifteen. We think the reference in the clause first quoted, ‘ ‘ to the said Henry Silby, and to his heirs, executors, administrators, and assigns, all their right and interest in and to the share of the whole of the estate remaining as' is hereinafter more fully specified,” ■must be held to refer to the share allotted to him in the subsequent clause, to wit, four-fifteenths.

We discover no error in the record, and the judgment will be affirmed.

The other Justices concurred.


author: Grant, J. Hooker, C. J.

text:
    CITY OF ST. JOSEPH v. SCHULZ.
    1. Dedication or Lands — Plats—Approval by Auditor General.
    The approval of a plat whereby land is dedicated to the public use, required of the auditor general by 1 Comp. Laws, § 3372, if, in his opinion, it conforms to the act, cannot be made in his name by a clerk in his department.
    2„ Same — Parks—Ejectment by City.
    A city cannot maintain ejectment for the recovery of a park claimed by reason of a comtnon-law dedication, on the authority of section 3154,1 Comp. Laws (providing that the city may regulate the care of parks, and protect them from injury), in the absence of a showing that the city was organized under chapter 88, of which such section is a part.
    Error to Berrien; Coolidge, J.
    Submitted June 4, 1902.
    (Docket No. 11.)
    Decided February 3, 1903.
    Ejectment by the city of St. Joseph against Louis S. Schulz. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      N. A. Hamilton, for appellant.

      Latvrence C. Fyfe, I. W. Biford, and O’Hara & O’Hara, for appellee.
   Grant, J.

This is an action of ejectment brought by the city, claiming the title in fee to a piece of land marked “Public Park” upon a plat of Boughton’s addition to St. Josepb. The plat was made by Kate Boughton. and her husband in September, 1890. Mrs. Boughton died. The land marked “Public Park,” in question, was sold as a part of her estate, and purchased by the defendant. The court, for various reasons, directed a verdict for the defendant.

The statute (section 3372, 1 Comp. Laws) requires that, before such plat can be recorded, or copies made therefrom, the person making the same shall forward the original plat to the auditor general, who shall approve of the same whenever, such plat shall conform, in his opinion, to the requirements of the act, and shall return the plat to the person who forwarded it, with his approval indorsed thereon. The original plat contained this indorsement: “August 26th, ’90. Henry H. Aplin, by Henry Humphrey.” In making the copies which the statute requires, the words “Examined and approved” were written over this indorsement upon the copies.

This record, even if authorized to be made by Mr. Humphrey in the name of Mr. Aplin, is not an approval of the plat. The mere signature cannot constitute an approval. Not only is no authority shown for the signature of Henry H. Aplin “by Henry Humphrey,” but there is nothing to show the signature is official. Henry Humphrey was a clerk in the office at the time, as appears by the auditor general’s reports; but no power is by statute given to him to pass an approval in the name of the auditor general, even if we could take judicial notice that he was at the time an employé of that office. The authority to approve was conferred upon the auditor general alone, and not upon any clerk. The officer so appointed must perform the duty. Mechem, Pub. Off. § 567. These provisions of the statute must be substantially, if not literally, complied with. 9 Am. & Eng, Enc. Law (2d Ed.), 35; 2 Dill. Mun. Corp. (4th Ed.) § 628.

The plat dedicates ‘ ‘ the streets and alleys as shown on said plat to the use of the public. ” It says nothing whatever about a public park.

There are other defects and other questions raised, but it is unnecessary to refer to them, as the above are sufficient to justify the finding of the circuit judge.

Judgment affirmed.

Hooker, C. J.

I concur in the affirmance of this judgment upon the ground that the plaintiff failed to show that it had title in fee to the premises. The plat not being properly approved, a statutory dedication failed. I think that the deeds of conveyance, made soon after the plat w.as recorded, were not inconsistent with a dedication of the alleged park, and that it should not be decided upon this record that there was no common-law dedication, but that ejectment would not lie in such a case as is here shown, even had not the declaration claimed the premises in fee. If 1 Comp. Laws, § 3154, would authorize it in such cases of dedication, we cannot say that this section applies, as it does not appear that the plaintiff is organized under chapter 88, of which section 3154 is a part.

Moore and Montgomery, J J., concurred with Hooker, C. J.

Long, J., did not sib


text:
    GEER v. TRADERS’ BANK OF CANADA.
    1. Trust Deeds — Creditors—-Fraud.
    A conveyance of land in trust to sell for the benefit of creditors is authorized by statute (3 Comp. Laws, § 8839), and cannot be set aside on the ground that its effect is to hinder and delay other creditors.
    3. Same — Presumptions.
    The presumption is in favor of the validity of such a conveyance, and that it was executed for a lawful purpose.
    3. Same — Authority of Trustee to Rent.
    A trust deed for the benefit of certain creditors is not invalid because it contains a provision that the trustee may rent the property.
    4. Same — Surplus After Payment of Creditors — Attachment.
    The surplus remaining after the payment of the creditors for whom the trust deed was made cannot be reached by an attachment levy upon the land.
    Appeal from Wayne; Donovan, J.
    Submitted October 14, 1903.
    (Docket No. 54.)
    Decided February 3, 1903.
    Bill by Harrison Geer, Joseph Turner, and Hezekiah M. Gillett, trustees, against the Traders’ Bank of Canada, to set aside an attachment levy. From a decree for complainants, defendant appeals.
    Affirmed.
    On July 33, 1896, James T. Hurst, a lumberman carrying on an extensive business in Michigan and elsewhere, being in financial difficulty, and desiring to provide for certain of his creditors, executed a deed of trust of certain real estate in the county of Wayne to the complainants, as trustees. Said deed recited that Mr. Hurst was indebted to certain parties therein named, — nine in all,— specifying the amount due to each; the aggregate being $514,000. One claim is to be paid in full; the rest to be paid jiro rata from the assets. It then recites that the land is conveyed to complainants for the following uses and purposes:
    “1. To assume possession'thereof, to manage and rent, and out of the rents and proceeds of sale to pay taxes, insurance, liens and incumbrances, if any, and their reasonable expenses.
    “3. To sell and convey said property, or any part or interest therein, and to make, execute, and deliver deeds of conveyance thereof, at such prices and upon such terms and conditions as they shall deem best.
    “3. From the proceeds of rents and sales of said property, after the payment of accrued taxes, insurance, and expenses, to first pay the said claim of Nelson Holland, with interest, and from the remainder of such -proceeds, as the same shall come to their hands, to pay the balance of said claims pro rata.

      “4. The surplus, if any, shall be paid to said James T. Hurst, or to such person or persons as he shall direct.”
    Then follows a description of the property.
    The deed was duly executed, and recorded on the day of the execution at 3 o’clock p. m. On the same day the defendant levied an attachment upon this same property at 4:23 p. m. The land conveyed did not include all of Mr. Hurst’s property, but only certain lands in Wayne county. Neither were the creditors therein provided for all his creditors.
    The object of complainants’ bill is to remove the cloud upon their title created by the attachment. Two objections are interposed on behalf of the defendant: (1) That the trust deed is, in effect, an attempted common-law assignment, and void as to all the creditors; and (2) that, if it is a mortgage security, it must be enforced by foreclosure as a mortgage, and, if a mortgage, the attachment levy must stand, because defendant is in that event entitled to redeem. Proofs were taken in open court, and decree entered for the complainants.

      Russel & Campbell (Harrison Geer and Henry M. Campbell, of counsel), for complainants.

      H. M. & D. B. Duffield, for defendant.
   Grant, J.

(after stating the facts). This conveyance was before the United States circuit court of appeals, and was there attacked by the same counsel, and for the same reasons that are now urged against it. Ontario Bank v. Hurst, 43 C. C. A. 193, 103 Fed. 231. The instrument is there given in full, and an able opinion filed, written by Judge Day, in which various decisions of this court are cited and discussed. The conveyance was upheld.

We will not attempt a review of the many cases involving conveyances made to secure creditors. If there be any apparent conflict between the decisions on this important question, it is because of the difficulty in laying down and applying a conclusive test to each case. The rule is not in doubt. The difficulty lies in applying it. We reach the same conclusion as that reached by the federal court, and for the reasons therein stated. Whatever the decisions of other courts may be, it is the settled rule of this court that it is not a sufficient reason to set these convej-ances aside that their effect is to hinder and delay other creditors, or even that the parties contemplated that other creditors might thereby be delayed in enforcing their debts. McMorran v. Moore, 113 Mich. 101 (71 N. W. 505); Webber v. Webber, 109 Mich. 147 (66 N. W. 960). The presumption is in favor of the validity of such instruments, and courts will ascribe to the parties thereto an honest, rather than an unlawful, purpose. Palmer v. Mason, 42 Mich. 146 (3 N. W. 945). Conveyances of land in trust to sell for the benefit of creditors are expressly authorized by statute. 3 Comp. Laws, § 8839.

By the instrument now in question, certain lands are conveyed to complainants for the sole purpose of selling them and paying the debts therein provided, and turning the surplus, if any, over to the grantor. The provision authorizing the trustees to rent does not invalidate the trust. The authority to rent is not in conflict with the authority to sell. Without this provision the trustees would have the same authority to rent previous to sale. As expressed in the deed, it means no more than that the trustees may rent until they can, in their judgment, sell to advantage. If such deed is not valid, the statute is of little use. Other creditors may have an interest in the surplus that remains, but they cannot reach it by attachment levy. It is clear that trust lands cannot be sold to advantage, if they can be sold at all, with an attachment levy made thereon. Such a conveyance is not a mortgage. It is an absolute conveyance of the title expressly authorized by statute, subject to be reconveyed to the grantor upon his paying the debts mentioned therein. It is in the nature of a mortgage, but is not a mortgage in fact, and does not require foreclosure proceedings. The trustees are entitled to have the property discharged from all subsequent levies, in order that they may carry out the power conferred upon them, and sell the property to advantage. We think the case of Palmer v. Mason, supra, rules this.

The decree is affirmed, with costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


author: Montgomery, J. Grant, J.

text:
    BRUNICK v. ANN ARBOR RAILROAD CO.
    Railroads — Killing Cattle at Crossing —Contributory Negligence of Driver — Question for Jury.
    Plaintiff’s cattle, while crossing a railroad track in the highway, were killed by a wild engine. If the bell had been rung and the whistle sounded as required by the statute, plaintiff’s two sons, who were driving the cattle, would have been able • to prevent the accident. Just before reaching the track, the cattle stopped to drink at a pond. It did not appear that, if the drivers had at that time gone forward upon the track, they would have seen the engine, or that such precaution would have prevented the injury. Held, that whether the drivers were guilty of contributory negligence was a question of fact for the jury. Grant, J., dissenting.
    Case made from Wexford; Chittenden, J.
    Submitted November 21, 1902.
    (Docket No. 112.)
    Decided February 3, 1903.
    Case by Everett Brunick against the Ann Arbor Railroad Company for the alleged negligent killing of plaintiff’s cattle. There was a judgment for defendant on verdict directed by the court, and plaintiff assigns error.
    Reversed.

      Sawyer & Bishop, for appellant.

      T. W. Whitney, for appellee.
   Montgomery, J.

This is an action on the case, brought by Everett Brunick against the Ann Arbor Railroad Company, to recover the value of certain cattle killed by a wild engine on a highway crossing in the township of Richland. The whole case turns upon the question of contributory negligence, and there is practically nothing else involved, so far as the hearing in this court is concerned. On this particular evening the plaintiff’s cattle were being driven along the highway by his two sons. When they came to this crossing, the cattle stopped to drink at a pond in the highway near the railroad track, and the boys waited for them to come out and proceed homeward. When they had finished drinking, they returned to the highway, and pursued their course, cattle fashion, one behind the other. When about half of them were over the track, this wild engine suddenly appeared, and struck them amidships, so to speak, killing some' five or six of them, but leaving unharmed the cattle at either end of the procession.

It was the claim of the plaintiff that the boys were so situated that they could and would have been able to clear the track of these cattle in time for the engine to pass "had the bell been rung and the whistle sounded in accordance with the statute, and that they were on the lookout for danger, and were exercising all the care possible with a large herd of cattle, and that the sole cause of the accident was the negligence of the trainmen in failing to give the proper warning of their approach. The defendant claimed that the boys were negligent in not going onto the track, and -there waiting until the cattle had all passed. The circuit judge took this latter view of the case, and directed a verdict of no cause of action. The error complained of is in not leaving the question to the jury to say whether or not the boys were exercising ordinary care in the management of these cattle, and whether or not they were so situated that they could have prevented the accident had the proper signals been given.

We think the case presented a question of fact for the jury. The case is quite different from one of an attempt to cross a track with a team of horses, which the driver is presumed to have in hand and be able to control. There was no noise of a wagon to prevent these boys from hearing an approaching train. It is true, their view was obscured, but, had they gone to the track and looked when the cattle stopped to drink, and then returned to drive the cattle across the track, it is not clear that this precaution would have prevented the injury. True, the defendant’s witnesses testify that the approaching engine could have been seen two miles away, as it passed Lucas: but, had they gone to the track to look when the cattle first stopped to drink, and then returned to drive the cattle, it is probable that they would not have seen the approaching engine. It was a still night, and they relied upon their sense of hearing and their knowledge that no train was due. The jury might have been justified in saying that this was negligent, but we think the question was for the jury. A case directly in point is Bates v. Railroad Co., 4 S. Dak. 394 (57 N. W. 72). See, also, Snook v. Clark, 20 Mont. 230 (50 Pac. 718); 2 Thomp. Neg. (2d Ed.) § 2011.

Judgment will be reversed, and a new trial ordered.

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

Grant, J.

(dissenting). The facts in this case are undisputed. It was dark. Plaintiff’s two sons were familiar with the situation, and knew and fully comprehended the danger at the crossing. Their vision was obscured, so that they could not see the headlight of an approaching engine. They stood 100 feet from the track while their cattle drank at the pond beside the road. As they drank they came back into the road, and walked, cattle fashion, towards the track. Standing at the crossing or near it, the headlight of the engine could be seen coming two miles distant. The negligence of the defendant in failing to blow its whistle and ring its bell is established by the finding of the jury.

There is no dispute as to the rule of law. Where there is a conflict in the testimony, and where different minds may reasonably draw different conclusions from undisputed facts, — some that there is negligence, and others that there is not, — the question belongs to the jury to determine. The facts being undisputed, is this a case where reasonable minds can draw different conclusions? Can one mind reasonably say that the plaintiff’s sons were not guilty of contributory negligence, and another that they were ? This depends upon the determination as to what care they were required to take to protect the property in their charge, and as well to protect the property of the defendant, its employes and passengers. In case of a collision some of the cattle were sure to be killed or injured. The engine was liable to be derailed, causing injury to property, and injury, if not death, to defendant’s employes. Yet the contention is made that these young men had the right to rely upon the absolute performance of duty by the defendant’s engineer and fireman in giving the signals, and that they themselves had done all required of them when they stopped and listened 100 feet from the track, where they stood about five minutes. It cannot be successfully disputed that, without incommoding themselves, they might easily have prevented the accident. The two were not needed to drive the cattle along the road. One could have gone to the track and watched for a train, while the other waited until all the cattle had finished drinking, and then followed them up. Had they done so, the accident would certainly have been avoided. It is of no consequence that it was not time for a regulár train. Every traveler is chargeable with knowledge that regular trains are often behind time; that sometimes they are run in sections; that special trains, and what are known as “wild” trains and “wild” engines, are run over these railroads, and must, of necessity, be run in order to do the work required of them. Vincent v. Steamship Co., 48 La. Ann. 933 (20 South. 207, 55 Am. St. Rep. 287). Therefore the duty to take at least ordinary precautions for one’s own safety and the safety of those upon the trains is required of every traveler in making these crossings. The circuit judge, in directing a verdict, used the following language:

‘ ‘ It would seem that these young men, standing there for five minutes, if they desired to run that risk, and stay there, waiting for the bell to ring or the whistle to blow, that they were certainly guilty of negligence. They had plenty of opportunity — they had five minutes, according to their testimony — to go to the track and look up and down, and see whether there was any danger in the cattle crossing the track. Instead of doing that, they stood 100 feet from the track, allowed the cattle to drink from this water hole, pass out, and rove over the track, without taking any precaution on their part to see whether an engine or a train was coming; and it seems to me that, under these circumstances, they did not use and employ all reasonable means at their disposal to ascertain whether there was any danger in the cattle crossing the track.”

Here we have two persons, travelers, in charge of a large herd of cattle; not one person in charge, as was the casein Bates v. Railroad Co., 4 S. Dak. 394 (57N. W. 72). In that cáse the decision was by a majority of the court. In the majority opinion it was held that the evidence tended to show negligence, but did not establish it so conclusively as to justify the court in deciding it as a matter of law. The only act of contributory negligence claimed was in failing to go forward to the track and ascertain whether a train was approaching. Justice Corson filed an able dissenting opinion, in which he gives the testimony of the plaintiff in full, and cites many authorities to-sustain his position. In Snook v. Clark, 20 Mont. 230 (50 Pac. 718), the highway led through a narrow canon. The right of way was not fenced, and the negligence charged was a failure to fence the right of way and to maintain a cattle-guard. The cattle were evidently killed on the right of way, and not in the highway. The contributory negligence claimed was “in-driving his stock into the canon without taking proper steps to avoid coming in collision with the train,” and in not riding down the track to stop the train by flagging when he heard it approaching. It was held that he could not have flagged the train without exposing his life in riding along a deep and dangerous cut. These cases are so different in their facts that I do not regard them as authority in this case.

If these two young men had been driving six heavily loaded teams, tied together, one after the other, or if they had been so well broken as not to require a driver, but would follow without being tied to the team in front, would they have been justified in stopping 100 feet from the track to listen, and then walking behind the teams the rest of the way to the track, assuming that no train would come ? Or, if these cattle had been tied together, with a leader in front, and they had stopped at the same distance to listen, and then driven on, both drivers being behind, would that have been the exercise of due diligence? Would not common prudence dictate that one should be in front of the procession, and the other in the rear, when they were about to cross the track? The fact that the cattle were loose does not change the rule of law. If anything, they were bound to greater care when they were loose, because they would be more beyond their control than when tied together. I deem it unnecessary in this case to discuss the question of the duty of one traveler driving cattle along the highway. That is not this case. Here were two. One could have gone ahead, while the other remained, and thus have secured the passage in perfect safety. I think it was their clear duty to do so.

I think the judgment should be affirmed.