text:
    TEAGAN v. KEYWELL.
    1. Covenants — Deeds—Building Restrictions — Residence Purposes — Dwelling House.
    A conveyance of a city lot with the restriction that it should be used for residence purposes only, does not exclude the • erection of a 41-apartment building; there being a clear distinction between a restriction for “residence purposes only,” and one confined to a “dwelling house.”
    2. Municipal Corporations — Building Code — Distance prom Lot Lines.
    Where a proposed 41-apartment building on an interior lot receives no legal light from the rear yard, and has no windows in the side walls, the placing of the rear wall within 2 feet of the 20-foot alley, and the placing of the side walls on the lot lines, held, not in violation of the provisions of the State housing code (Act No. 326, Pub. Acts 1919, § 12, Art. 2, Tit. 1) or the building ordinances of the city of Detroit.
    3. Covenants — Building Restrictions — Estoppel.
    Where all the residents of a subdivision except one violated the restrictive covenant in the deed against building on the 50-foot area from the front lot line, and plaintiffs themselves violated it and sat by and saw others violate it without protest, they cannot now complain of defendant’s extending his porch 8 feet and 6 inches into said restricted area.
    Appeal from Wayne; Root (Jesse H.), J., presiding.
    Submitted October 6, 1920.
    (Docket No. 27.)
    Decided December 21, 1920.
    Bill by William Teagan and others against Henry C. Keywell to enjoin the violation of certain building restrictions. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      James H. Pound, for plaintiffs.

      A. W. Sempliner, for defendant.
   Stone, J.

The plaintiffs by their bill of complaint herein seek to enjoin the erection by defendant of an apartment building on the north side of West Grand boulevard, between Lawton and Linwood avenues, in the city of Detroit. The case is here upon the appeal of plaintiffs, the court below having dismissed the bill of complaint. Counsel for plaintiffs and appellants has failed to comply with Rule No. 40 of this court, in that the, brief does not contain a concise statement of the facts of the case distinct from argument and of the errors upon which plaintiffs rely, the questions involved and the manner in which they are raised. We have felt at liberty, therefore, to look into the brief of the defendant and appellee for such statement. The plaintiffs) own property on the north side of the boulevard named, between Lawton upon the west and Linwood upon the east, length of block being about 860 feet. In the deeds of plaintiffs’ property, as well as in the deed of the defendant, are the following building restrictions:

“It is a condition and restriction of this conveyance, accepted by the parties of the .second part, and to bind all future owners, that.no building shall be erected on said premises except for residence purposes only, which shall be at least two stories in height and shall cost at least $2,500, and set at least fifty (50) feet back from the front lot line.”

Defendant’s land is 70 feet wide andv 204.75 feet in depth. In the rear of this property there is a 20-foot alley. The boulevard in front of the property is 150 feet wide. In this block, between Linwood and Law-ton avenues, the evidence shows that there is only one building that does not violate the restrictions and extend into the 50-foot restricted area. Two of them have inclosed porches. Starting at Linwood upon the east, the first house, including the steps, extends into the restricted area 12 feet 6 inches; without the steps it extends into the restricted area 8 feet. The next contemplated house is the apartment house of the defendant. According to the plans and specifications it extends into the restricted area 8 feet 6 inches. The next is the property of the plaintiffs Teagan, the porch of which extends into the restricted area 9 feet 4 inches, and the steps 4 feet 6 inches more. The next extends into the restricted area 8 feet. The next extends into the restricted area 8 feet 5 inches, and the steps 4 feet 10 inches. The next extends into the restricted area 8 feet without the steps. The next extends into the restricted area 8 feet 10 inches, according to the testimony. The next does not extend into the restricted area. The next is an 8-apartment, 3-story building extending into the restricted area 9 feet 3 inches; the basement porch is built in all around and inclosed. The next extends into the restricted area 8 or 9 feet. The next is the Alsace-Lorraine apartment, a 33-apartment building, which has four porches and extends into the 50-foot building line 9 feet; the porches are inclosed porches built around windows the same as in the defendant’s proposed building. The last-named building was built since the plaintiff moved into the locality. In fact, the building of it was started the winter before the commencement of this suit.

The defendant’s building is a 41-apartment, 4-story building, on his lot which adjoins that of the plaintiff Teagan on the east. The building covers the entire width of the lot and extends back to within two feet of the alley, and in front is set back 50 feet from the front line of the lot, with the exception of the porches, which extend 8 feet 6 inches hearer the front lot line. Defendant’s proposed building has no windows on either the east or west sides, which are the side walls of the building. It receives its light there from three courts or basins extending into the building proper. It has no windows for its legal light in the rear, receiving the light there from courts the same as on the side. The plans of defendant’s building were submitted to the board of health of Detroit and to the department of safety engineering and buildings. The plans were approved by the board of health and by the building department of the city of Detroit.

At the time the bill of complaint was filed herein the defendant had commenced the erection of the building and the excavating had been done. The front basement walls were in and also' the side walls, and nearly all the contracts for the remainder of the construction had been let. The plaintiffs filed their bill of complaint seeking to restrain the erection of the building on three grounds:

(1) That the proposed building was a violation of the restrictive covenants contained in the deed.

(2) That the building as planned did not conform •with the housing code of the State, and the building ordinances of the city of Detroit.

(3) That the inclosed porches violated the restrictive covenant of the deeds in reference to building nearer than 50 feet from the front lot line.

The case was heard below upon the pleadings, and proofs taken in open court, and, as we have said, the plaintiffs’ bill of complaint was dismissed. The learned circuit judge who heard the case below viewed the premises. The court below, after hearing the testimony in the case and the arguments of counsel, found:

(а) That the defendant was not violating the building restrictions.

(б) That the defendant was conforming to the building laws of the State of Michigan and of the city of Detroit.

(c) That all the residents of the subdivision, in-eluding the plaintiffs, had in erecting the buildings upon their lots violated the restrictions to erect the buildings at least 50 feet back from the front line of the lot; that the plaintiffs had, without protest,,permitted other owners in said, subdivision to erect on their lots buildings which were not set back at least 50 feet from the front line of the lots, and which buildings were constructed in the same manner as that pro-, posed by the defendant; and that the building of the defendant sits back 50 feet from the front lot line, and that only the porches extend beyond, and that this is in accordance with the construction placed upon the building restrictions by the residents of the subdivision.

(1) The first contention of the plaintiffs is that the restrictive covenant in the deed forbids the erection of an apartment house. Counsel has cited the following cases, all of which we have examined: Hammond v. Hibbler, 168 Mich. 66; Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Moore v. Curry, 176 Mich. 456; Misch v. Lehman, 178 Mich. 225; Stewart v. Stark, 181 Mich. 408; Casterton v. Plotkin, 188 Mich. 333; Sherrard v. Murphy, 193 Mich. 352; Davison v. Taylor, 196 Mich. 605; Andre v. Donovan, 198 Mich. 256; Hartwig v. Grace Hospital, 198 Mich. 725; Rosenzweig v. Rose, 201 Mich. 681; Baxter v. Ogooshevitz, 205 Mich. 249.

In our opinion many of these cases are not at all decisive of the questions that we are here considering. We think, however, that the case of Casterton v. Plotkin, supra, has an important bearing upon the instant case. There, as here, the restriction was that the lot should be used for “residence purposes only.” The first two head-notes of that opinion are as follows:

“A conveyance of a city lot with the restriction that it should be used for residence purposes only, * * * did not exclude the erection of an apartment house; and no further or different limitations to those expressed in the deed might be implied.
“Such restrictions are construed strictly against the grantor and those claiming to enforce them, all doubts being resolved in favor of the free use of the property.”

In'reversing the decree in that case and dismissing the bill of complaint this court said:

_ “Complainants have failed to establish a proposed violation by defendant of any of the restrictive covenants in his chain of title, or to clearly show that subsequent events'have by legal implication imposed additions to such original restrictions. Courts of equity do not aid one man to restrict another in the use to which he may put his property unless the right to such aid is clear.”

It will be noted that in Rosenzweig v. Rose, supra, the restriction was “the said party of the second part further agrees that he will not occupy said premises except for a dwelling house.” This court held that the words “dwelling house” meant a single dwelling.

In addition to Schadt v. Brill, supra, we may add the cases of Harris v. Roraback, 137 Mich. 292, and Bagnall v. Young, 151 Mich. 69. All that need be said in addition to this reference is that there is a clear distinction between a restriction, that property shall be used for “residence purposes only” and one where the restriction is confined to a “dwelling house.” We think this question is controlled by Casterton v. Plotkin, supra, and that under the restriction defendant had a right to build a 41-apartment building upon the premises in question.

It is next contended by plaintiffs that the proposed building violates the housing code of the State of Michigan and the building ordinances of the city of Detroit. We think this question is controlled by the statute. By Act No. 326, Public Acts-1919, it is provided in section 1 of article 1 that:

“This act shall be known as the housing law of Michigan and shall apply to every city and organized village in the State which, by the last regular or special federal census, had a population of ten thousand or more, and to every such city or village as its population shall reach ten thousand thereafter.” * * *

The evidence shows that the lot in question is an interior lot. By section 12, article 2, title 1, of the act referred to, it is provided:

“Immediately behind every dwelling hereafter erected there shall be, except as hereinafter provided, a rear yard extending across the entire width of the lot. * * * In the case of an interior lot the rear yard space shall in no case be less than sixteen feet deep for a one-story dwelling, eighteen feet for a two-story dwelling, twenty feet for a three-story dwelling, twenty-four feet for a four-story dwelling, and shall be increased in depth by four feet for each additional story of the dwelling above four stories, except that in case there is a public alley in the rear of said lot upon which the lot abuts for its full width, the measurement for yard space may be made up to the center of such alley. * * * The above requirements for rear yards, however, may be decreased by one-half provided that there is no room of the dwelling which receives its legal light from such rear yard.”

We think it may be stated from the evidence in the case that this building receives no legal light from the rear yard, so that the requirements of said section for a rear yard of 24 feet may be reduced to 12 feet, and it seems it was so reduced when the board of health and department of buildings issued the permit, there being a 20-foot alley in the rear. Under the statute the rear yard is measured to the center of the alley. The building proper is erected 2 feet off the alley line, and measured to the center of the alley the rear yard space is 12 feet, and is in strict compliance with the requirements of the statute, which we think is controlling here.

It clearly appears that the defendant’s proposed building has no windows at all on the side lot lines, but the light is received from courts. The construetion seems to be in compliance with, section 13 of the statute already referred to, following section 12 above quoted from. It reads as. follows:

“Dwellings hereafter erected may be built up to the side lot line, if the side wall is without windows.” * * *

It is further urged by plaintiffs that the defendant has violated the restrictive covenants in the deed by building inclosed porches closer to the front lot line than 50 feet. It is admitted that the porches do extend 8 feet 6 inches into this restricted area. In the entire block between Lawton and Linwood, according to the testimony of one of the plaintiffs, as we have already said, there is just one'house that does not extend into the 50-foot restricted area. Plaintiffs’ buildings extended within that restricted area. Two of the houses, including the large one, the Alsace-Lor-' raine, have closed porches in the same manner as the defendant. Under the evidence it seems that plaintiffs sat by and said nothing against the erection of these buildings. The Alsace-Lorraine apartment with its inclosed porches was not finished when this case was begun, yet there seems to have been no complaint made in regard to it.

The learned trial judge filed a written opinion in the case to which we refer, and from which we quote as follows:

“I am of the opinion that the erection of this apartment house with inclosed porches does not violate the restrictive covenant in the deed any more than have the plaintiffs in this case, and any more than have all the other residences of this subdivision, with the exception of one who stayed outside of the 50-foot limit. As has been heretofore pointed out, all of the residents, including the plaintiffs in this case, have gone beyond the 50-foot limit, and in my judgment are not in position to now claim, having acquiesced in the erection of other buildings in this same subdivision in the same block, and having violated that restrictive covenant themselves, to now claim that the defendant in this case has no right to do so.”

The mere glassing in of the porches of the plaintiffs and other parties would put their buildings in the same position as the defendant’s. We have examined the record with much care, as well as the briefs of counsel, and while we have not discussed all of the points urged by plaintiffs’ counsel in his brief, we have considered what we think are the important and controlling questions in the case, and are of the opinion that the case was properly disposed of by the court below.

The decree of the circuit court is affirmed, with costs to the defendant.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    COOPER v. PIERSON.
    1. Frauds, Statute of — Memorandum—Sufficiency.
    A memorandum for the sale of land, to be sufficient to satisfy the statute of frauds (3 Comp. Laws 1915, § 11975), must be complete in itself and leave nothing to rest in parol; it must be certain and definite as to the parties, property, consideration, premises, and time of performance.
    2. Same.
    An option for the sale of three lots which failed to state in what State, county, city or village they were situate was not sufficiently definite and certain to satisfy the statute.

      3. Same — Extension of Option — Construed Together.
    Where an extension of the option, signed, by one of the three vendors, tenants in common, supplied the data lacking in the original option, the two should be read together, and, as so construed, will be held binding on the vendor so signing, but not on the others who signed the original option only.
    4. Tenants in Common — Specific Performance as to One.
    Since one tenant in common has a right to sell his interest in the common property, an option to sell, signed by one tenant only is enforceable against him, where the property is severable.
    Appeal from Genesee; Black (Edward D.), J.
    Submitted October 13, 1920.
    (Docket No. 100.)
    Decided December 21, 1920.
    Bill by Morris Cooper against Fred D. Pierson and others for the specific performance of an option contract. From the decree rendered, plaintiff and defendant Fred D. Pierson appeal.
    Affirmed.

      McFarlcm. & Wilson, for plaintiff.

      Farley & Selby, for defendants.
   Bird, J.

Defendants, who were the. owners of certain lots on North Saginaw street, in the city of Flint, .gave plaintiff a 30-day option thereon, reading as follows :

“May 26, 1919.
“In consideration of one ($1.00) dollar, we, the undersigned, agree to give option to Morris Cooper oh lots 831, 833 and 835, North Saginaw street, for the sum of two hundred sixty and no/100 dollars per front foot. It is agreed that first payment be made five thousand dollars. Balance to be secured by deed of trust for five years with six per cent, interest. This option will expire on June 26, 1919.
“Fred D. Pierson,
“Robert L. Pierson,
“Fannie G. Pierson.”

Plaintiff was a resident of Petersburg, Virginia. After securing the option he returned to his home. Just before the option expired he returned to the city of Flint and requested the parties to meet him at the Bryant hotel on June 26th. Fred Pierson met him and they went to the office of Farley & Selby, at Pier-son’s suggestion, to have the papers drawn. Neither of these gentlemen was in his office, and it was agreed that the matter should be postponed until one of them returned. A 10-day extension was agreed to upon payment of $100. The receipt and extension are in the following words:

“$100.00 June 26, 1919.
“Received from Morris Cooper one hundred and no/100 dollars, part payment on purchase price of Lots No. —, known in option furnished to Morris Cooper in option dated May 26, 1919, the revised No. known as Number 821 North Saginaw street, Flint, Michigan, deed to be drawn on or before 10 days.
“Fred D. Pierson.”

Plaintiff made his check payable to the three Pier-sons and delivered it to Fred, with the understanding that the parties would meet him the next morning at his hotel, so that the matter could be closed. Fred and Robert appeared the next morning at plaintiff’s hotel and advised him that the “option was off” because he did not pay, on the previous day, the $5,000 stipulated in the option, and at the same time Fred offered to return his check to him, but plaintiff refused it. Subsequently plaintiff made a tender of the $5,000 less the $100 check, also the mortgage provided for, but defendants refused to accept them. Plaintiff then filed this bill to enforce specific performance of the option.

The defense made was that the writing was not sufficiently definite and certain to satisfy the statute of frauds. The chancellor refused to enforce the option against Robert and Fannie, because neither signed the 10-day extension of the option, but held that the option and receipt signed by Fred, considered together, were sufficiently definite to satisfy the statute, and accordingly made a decree enforcing it as against the interest of Fred. Both Fred and the plaintiff have appealed. The questions which we shall consider are:

(1) Does the option satisfy the statute of frauds?

(2) Does the option, aided by the 10-day extension, satisfy the statute?

It has been held by this court that a memorandum, to be sufficient under the section involved (3 Comp. Laws 1915, § 11975), must be complete in itself, and leave nothing to rest in parol. Gault v. Stormont, 51 Mich. 636. And that it must be certain and definite as to the parties, property, consideration, premises, and time of performance. Rosenbaum v. Tyszka, 192 Mich. 457. The present option appears to be sufficiently certain and definite as to the parties, consideration, terms and time of performance, but not as to the property which was to be conveyed. If one had no information as to the location of the property except what he was able to gather from the face of the option, he would have great difficulty in locating it. It does not appear from the face of the' paper in what State, county, city or village it is situate. In order to be of any force in designating the property intended to be conveyed, the option would have to be aided by parol evidence. We must, therefore, conclude that the option, considered by itself, was not sufficiently definite and certain to satisfy the statute. Droppers v. Marshall, 206 Mich. 560. This conclusion must result in affirming the decree as to Fannie and Robert, as they did not sign the extension, nor was it shown that Fred was duly authorized to act for them.

If the option and 10-day extension be read together, and we think they should be (Francis v. Barry, 69 Mich. 311), we must conclude that the extension supplies what is lacking in the option. The extension identifies the lots on North Saginaw street, mentioned in the option, as being located in Flint, Michigan, and makes the description of the property to be conveyed certain and definite. Fred, having signed both memoranda, is bound by the option as amended.

But plaintiff’s counsel argue that the parties being tenants in common, the contract is not binding on Fred unless it is binding on Robert and Fannie. In other words, that the agreement must bind all or none, citing Moreland v. Strong, 115 Mich. 211 (69 Am. St. Rep. 553); Walker v. Marion, 143 Mich. 27. These cases do not deny the right of one tenant in common to sell his interest in the common property; they simply consider the relative rights of the tenants in dealing with the property. In one case, however, the court refused specific performance as against one tenant. Adler v. Katus, 190 Mich. 86. That case is distinguishable from the present one in this: The vendor in that case was seeking the relief and the property which was owned in common was not severable. In the present case the vendee is asking relief and the inference to be drawn from the record is that the property is severable, as it consists of three city lots.

The decree as to Fred must also be affirmed, but with the privilege to plaintiff to elect whether he will accept a conveyance or be remitted to an action at law against Fred for his refusal to abide his contract., Fannie and Robert will recover their costs, the same to be taxed against Fred Pierson and the plaintiff, each to pay one-half thereof. Neither Fred nor plaintiff will recover costs.

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


text:
    MILLARD v. MILLARD.
    1. Evidence — Paeol Evidence — Deeds.
    Parol evidence is not admissible to vary or contradict tbe legal effect of a conveyance.
    2. Deeds — Estates—Eee Simple — Fee Tail.
    By the common law a conveyance of lands and tenements to one and bis beirs generally created an estate in fee simple, and a conveyance to one and tbe beirs of bis body created an estate in fee tail; both being estates of inheritance, made so by use of tbe word “beirs.”
    3. Same — Life Estates — “Heiks” — “Body” —• Fee Tail — Pee Simple.
    A deed recited to be between a father of tbe first part, and a daughter and her children, beirs of her body, of tbe second part, and granting unto tbe parties of tbe second part and to their heirs and assigns forever, certain lands, to have and to bold to tbe parties of tbe second part, their beirs and assigns forever, held, not to convey to tbe daughter a life estate, with remainder to her beirs, there being ño indication of a life estate, but to áttempt to create a fee tail, which, by operation of 3 Comp. Laws 1915, § 11521, is converted into a fee simple in tbe daughter, since tbe deed contained not only tbe word “beirs,” essential to make it an estate of inheritance, but also tbe word “body,” tbe appropriate word of procreation to make a fee tail, under which construction tbe word “children”" adds nothing, being a word of limitation.
    On tbe general rule that parol evidence not admissible to vary, add to or alter a written contract, see note in 17 L. R. A. 270.
    Error to Clinton; Moinet (Edward J.) J.
    Submitted October 8, 1920.
    (Docket No. 60.)
    Decided December 21, 1920.
    Ejectment by Ernest Millard and others against Lester A. Millard. Judgment for plaintiffs on a di- ■ rected verdict. Defendant brings error.
    Reversed.

      Hawley, Eldred & Gemuend, for appellant.

      Searl & Searl, for appellees.
   Bird, J.

This proceeding is one in ejectment involving certain lands in Clinton county. The case turned on the construction of a certain warranty deed through which both parties claimed title. The trial court took plaintiffs’ view and directed a verdict in their behalf and the defendant assigns error. The controversy grows out of a warranty deed given by Moses Dean to his daughter, Charity Millard, in the year 1846. Moses Dean appears to have been, at that time, a resident of Ionia county and the possessor of considerable property. He had three daughters and one son, and on the 27th day of July, 1846, he conveyed to each of them 160 acres of land. His daughter Charity was married to John A. Millard at that time, and they had five children. After the conveyance five more were born. The 160 acres which passed to her was described as the east half of the southeast quarter and the east half of the northeast quarter of section 31 in Lebanon township, Clinton county. In February, 1877, Charity Millard and her husband conveyed the east half of the southeast quarter to their son, Lester A. Millard, the defendant herein. Later Lester purchased the south 13 acres of the east half of the northeast quarter. This made him the owner of 93 acres, the title to which is involved in this suit.

Charity Millard continued to live on the remaining 67 acres until a short time before her death, which occurred in December, 1918, when she had nearly reached the age of' 104 years. After her death the plaintiffs, who are her grandchildren, claimed title to the 93 acres, which was then in possession of the defendant, their claim being that their grandmother Charity had only a life estate therein, and upon her death they were, entitled to the possession of their respective shares therein as remaindermen. The validity of this claim furnishes the principal issue in the case. The question involves the construction of the conveyance, referred to, from Moses Dean to Charity Millard in July, 1846. The material portions of the deed are:

“This indenture made the 27th day of July in the year of our Lord one thousand eight hundred and forty-six, between Moses Dean, of the county of Ionia and State of Michigan, of the first part, and Charity Millard and her children, heirs of her body, of the second part, witnesseth: * * * have granted * * * unto the said parties of the second part, and to their heirs and assigns forever, all that certain piece or parcel of land, etc. * * * To have and to hold, the above-mentioned and described premises, with the appurtenances, and every part and parcel thereof, to the said parties of the second part, their heirs and assigns forever.”

It is the claim of the plaintiffs that in legal effect this was a deed conveying to Charity a life estate, with a vested remainder over in fee to her heirs in esse, subject, however, to be opened up to let in after born children, and that all of the children took a vested interest in the remainder, and that when Charity departed this life these children, or their descendants, were entitled to the possession of their respective shares.

The defendant took the position that an attempt was made by the deed to create an entailed estate, which, under the provisions of our statute, was converted into a fee simple estate in Charity. That if the language of the deed will not admit of this construction then it must be held that Charity Millard and her children in esse at the date of the conveyance took the lands as tenants in common.

The theory advancéd by plaintiffs, and adopted by the trial court, that the deed conveyed but a life estate to Charity with a vested remainder over to her children in esse, subject, however, to be opened up to let in after-born children, is a theory not easily sustained by the language of the deed. The trial court appears to have been of the opinion that the wording of the deed, aided by extrinsic circumstances, which were shown, justified its conclusion. An examination of the language of the deed discloses no reference to a life estate, and if we construe the word “children” as a word of purchase (as plaintiffs insist we should do), there is no language indicating that any other or different estate was intended for Charity than for the children. If the word “children” is construed as a word of purchase and not of limitation, it is a much more reasonable construction to say that it was the intent to make Charity and the children tenants in common. But even this, theory has its difficulties. If it were intended to make them tenants in common, we are met at once with the inquiry why the words “of her body” were inserted? This is not easily answered.

It is extremely difficult to understand how an expert or a novice in making conveyances would have used the language contained in this deed if Moses Dean had requested him to draw a deed giving Charity a life estate with remainder over to her children. And it is just as difficult to understand how Moses Dean, a man of business sagacity, would have been content with such a deed after it was made and read to him if it were his intention to give Charity but a life estate. It would seem as if a deed which was supposed to convey a life estate but which made no mention of it would have naturally attracted the attention of even the lay mind of Moses Dean when it was read to him.

Under the claim that the meaning of the grantor was ambiguous, evidence of extrinsic facts was admitted under objection. The question really involved here is the legal effect which should be given to the language used in the deed. Parol evidence is not admissible to vary or contradict the legal effect of a conveyance. Sanborn v. Loud, 150 Mich. 154 (121 Am. St. Rep. 614). But waiving this objection we have been unable to find anything in the relations or surroundings of the parties which were disclosed which aids the theory of plaintiffs. It was shown that straight warranty deeds were executed by Moses Dean at the same time the present one was, conveying to each of his three other children 160 acres. This was for tile purpose of showing that Moses Dean intended to make a different conveyance to Charity than he did to them. It certainly has that effect, but the face of Charity’s deed shows exactly the same thing. Her deed shows beyond question that a conveyance in fee simple was not intended. It is also suggested that Moses Dean was not favorably impressed with his son-in-law, and it is quite likely he was not, as both counsel -have suggested it, but, conceding that to be true, How does that fact make for or against plaintiffs’ theory? We have not been able to see the connection and it has not been pointed out to us by counsel.

We have had many cases Called to our attention in support of plaintiffs’ theory, wherein property had been conveyed to a grantee and his children, or to a grantee and his heirs, and which hold that the first taker took a life estate, with the remainder to his children or heirs. An examination of these cases, however, shows that in many of them a life estate was expressly granted, or was implied from the restrictions placed upon the right of the first taker to deal with the property, or from some other phraseology in the deed which indicated a life estate. In others the estate granted had been declared a fee tail at the common law and thereby converted into a life estate by the force of the statute of the particular State. We have found no case, and none has been called to our attention by either counsel wherein the same language in a granting clause has been interpreted, although the briefs of both counsel show great industry. Being of the opinion that the language of the deed and the extrinsic circumstances are insufficient to support plaintiffs’ theory we are obliged to disagree with the trial court.

The defendant’s main contention is that in making the deed an attempt was made to create a fee tail by the common law, and that by force of our statute (3 Comp. Laws 1915, § 11521), it was converted into a fee simple. By the common law a conveyance of lands and tenements to one and his heirs generally created an estate in fee simple. 16 Cyc. p. 601. A conveyance of lands and tenements to one and the heirs of his body created an estate in fee tail. 10 R. C. L. p. 656. Both were estates of inheritance and were made so by the use of the word “heirs.” 2 Blackstone, 114. In the creation of an estate in fee tail it was not only necessary to use the word “heirs,” but it was necessary to use the word “body,” or some other word or words of procreation. 10 R. C. L. p. 658. Measured by these tests would the present deed have been adjudged at the common law as conveying to Charity an .estate in fee tail? Both the words “heirs” and “body” are present in this deed. It has been said .generally that an estate limited to one and the heirs of his body creates an estate tail and that it is not very important what the phraseology may be, aside from the words of inheritance and procreation. It is inferable from the record that Moses Dean was in this frame of mind when the deed was made: “I want Charity to have this farm, but I do not want any of it to go to my son-in-law. I want Charity and her children to have the benefit of it.” Acting on this .suggestion the conveyance was limited to Charity and the heirs of her body. But the inquiry at once arises, What did he mean by inserting the word “children”? Herein lies the only irritant in this theory. No direct answer can be made to this inquiry, but it is not unlikely that in the anxiety of the drawer of the deed to limit it to Charity’s children the word “children” was thrown in and used in a cumulative sense to make it certain and satisfy the grantor. Without the word “children” the wording would be the exact phraseology of a deed in fee tail at the common law. With it inserted, it adds nothing to the legal effect if a fee tail was intended because the word “children” has often been construed as a word of limitation. Wheatland v. Dodge, 10 Metc. (Mass.) 502. But aside from speculation as to intent, this much is certain. The deed contains the word “heirs,” the essential word to make it an estate of inheritance. It also contains the word “body,” the usual and appropriate word of procreation, and it limits in no uncertain way the estate to Charity and the heirs of her body. This makes a fee tail by the common law. The word “children” can be construed the same as “heirs” if both are construed as words of limitation and not of purchase. If this view of the wording of the deed is to prevail it becomes consistent with an estate in fee tail at the common law. While, of course, this theory has its debatable phase it has much fewer difficulties than any other theory which has been advanced, or which has occurred to us.

A discussion of the numerous authorities brought to our attention in the briefs has been omitted because the wording in all of them differs from the wording of this deed just enough to make them of doubtful value. Our conclusion is that an attempt was made to create an entailed estate and that it was converted by the foregoing statute into an estate in fee simple in Charity, as grantee. With this view the judgment of the trial court must be reversed and a new trial ordered, with costs to the defendant.

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


author: Clark, J.

text:
    DOBSON v. DOBSON.
    1. Husband and Wife — Mortgages — Foreclosure — Defenses • — Hazy Promises as to Future No Defense.
    In. a suit to foreclose a mortgage given by a married woman upon her separate estate to secure a note given by herself and husband to plaintiff who had advanced a considerable sum of money to pay creditors of a corporation, the stock of which was largely owned by the husband, mere hazy promises as to the future, made by plaintiff, that he would assume the active management of the corporation, but not made to induce, or even in connection with, the giving of the mortgage, held; insufficient to constitute a defense.
    2. -Same — Payment—Collateral,
    Defendant’s contention that plaintiff had had the use of certain stock of the corporation when it was turned over to a third party who thereupon assumed the debts of the corporation, and thus had secured his own release from his indorsement of the corporation’s note, and was in effect to plaintiff as if the loan for which the mortgage was given was paid, cannot he sustained where it appears that the plan of selling said stock and repaying plaintiff’s loan was not carried out, hut that it was turned over by defendant’s husband to secure his own release as well as plaintiff’s from indorsements upon which they were jointly liable.
    Appeal from Alpena; Emerick (Frank), J.
    Submitted October 21, 1920.
    (Docket No. 73.)
    Decided December 21, 1920.
    Bill by Russel T. Dobson against Inez L. Dobson and others for the foreclosure of a mortgage. From a decree for plaintiff, defendant Inez L. Dobson appeals.
    Affirmed.

      C. H. & G. M. Lehman, for plaintiff.

      D. W. Closser, for appellant.
   Clark, J.

From a decree for the foreclosure of a. mortgage defendant Inez L. Dobson has appealed. In the beginning of the year 1914, the Alpena Echo Publishing Company, a Michigan corporation, was in financial straits. The. capital stock, $15,000, divided into 1,500 shares, was owned substantially by defendant William B. Dobson. Some of the creditors were pressing for immediate payment. Plaintiff, a brother of said defendant, was a creditor to the amount of $4,000. The brothers and others to become interested in the enterprise agreed that one-fourth of the shares of the capital stock of the company should be transferred to plaintiff in payment of his claim, that one-fourth of the shares should be sold to Dayton W. Glosser and one-fourth should be transferred to.Mr. Closser, in trust, to be sold to business men of Alpena, the proceeds to be paid to defendant William B. Dobson. It was also agreed that the remainder of the shares should be transferred to John Haggerty, in trust, in the hope that they might ultimately be sold to Alexander J. Groesbeek.

Transfers of the shares were made as agreed to plaintiff and to Mr. Closser and certain of the shares were sold in Alpena. A certificate was later issued in the name of Mr. Haggerty, but a sale to Mr. Groesbeck was not made, although in June, 1914, the parties were still hopeful that Mr. Groesbeek would purchase. At this time it was imperative that a creditor be paid $2,120 and that said defendant have $250 to pay several claims in Alpena. Defendant William B. Dobson applied to plaintiff for a loan of $2,370. Plaintiff made the loan and on June 3, 1914, received of the defendants William B. Dobson and Inez L. Dobson, his wife, their note for the amount, which note was secured by a mortgage of real estate executed by Mrs. Dobson. The bill was filed to foreclose this mortgage. The mortgage refers to a collateral agreement of the same date (Exhibit G), which is as follows:

“This agreement made this third day of June, 1914, between William B. Dobson, Inez L. Dobson and Russel T. Dobson, witnesseth as follows:
“Whereas, February eighteenth, 1914, William B. Dobson assigned three hundred seventy-five shares of stock of the Alpena Echo Publishing Company of Alpena, Michigan, in the name of John Haggerty, and the same has been transferred on the books of said Alpena Echo Publishing Company, which stock was taken by Russel T. Dobson, as agent of William B. Dobson, for delivery to Alex. Groesbeck, who before said transfer agreed to pay the sum of three thousand seven hundred fifty dollars therefor, and, whereas, the said Alex. Groesbeck has neglected to take said stock and pay for the same, and it may be necessary for the said Russel T. Dobson to guarantee the said Groesbeck against the sustaining of any loss other than the use of the money by reason of the decrease in value of the property of the Alpena Echo Publishing Company of Alpena, Michigan, and whereas, the said Russel T. Dobson has advanced the sum of two thousand three hundred seventy dollars to W. B. Dobson to apply on the said payment in behalf of the said Alex. Groesbeck; and, whereas, William B. Dobson and Inez L. Dobson have joined in a promissory note dated June third, 1914, calling for the payment of two thousand three hundred seventy dollars in one year from date, and the said Inez L. Dobson has givén a mortgage of lot nine (9), block five (5), George N. Fletcher’s first addition to the village (now city) of Alpena, Michigan, to secure the payment of said note, and whereas, the said William B. Dobson and Inez L. Dobson hereby guarantee the said Russel T. Dobson against any loss he may sustain by reason of his guaranteeing the said Alex. Groesbeck against sustaining any loss other than the use of the money by reason of the decrease in value of said property of the Alpena Echo Publishing Company of Alpena, Michigan.
“It is hereby mutually agreed that any money paid for said stock shall be applied upon the repayment of said two thousand three hundred seventy dollars to said Russel T. Dobson until the said sum of two thousand three hundred seventy dollars shall be repaid to him and when so paid said note shall be delivered up and cancelled and the balance of one thousand three hundred eighty dollars shall be turned over to the said William B. Dobson.
“It is further agreed that when the said two thousand three hundred seventy dollars shall have been so paid, said mortgage shall only continue in force and effect to secure the performance of the carrying out of the guarantee herein and aforesaid, and the said parties agree that said guarantee shall extend for one year from date hereof, and be automatically renewed, together with the note and mortgage, unless such renewal be waived in writing, it being understood that said guarantee shall run until the said stock is disposed of in such manner as shall relieve the said Russel T. Dobson from the aforesaid guarantee to the said Alex. Groesbeck.
“In witness whereof the respective parties have hereto set their hands and seals the day and year first above written.
“William B. Dobson, (L. S.)
“Inez L. Dobson, (L. S.)
“Russel T. Dobson,
“By Dayton W. Closser,
“His duly authorized agent.
“In presence of
“Ragna Larson,
“Virginia C. Emerson.”

A letter of plaintiff (Exhibit D) inclosing check for the loan stated substantially the terms for the collateral agreement. As time went on the brothers became liable as indorsers to a considerable amount for debts of the company and in July, 1915, Fred N. Potter acquired by purchase all of the corporate shares, being 375 shares owned by plaintiff, 375 shares owned by Mr. Closser, 375 shares either sold in Alpena or held in trust by Mr. Closser for defendant William B. Dobson, and 375 shares “the Haggerty-Groesbeck stock” owned by defendant William B. Dobson. By the transfer the brothers were relieved from, said liability as indorsers in about equal amounts.

The trial judge clearly and correctly states and disposes of the defenses in the case. We quote with approval from his opinion:

“To this foreclosure bill Mrs. Dobson interposes two defenses, namely:
“First: She says she only made the mortgage because of, and in reliance upon certain representations or promises made by the plaintiff, and these she states in her answer and cross-bill, as follows;
“That Russel T. Dobson would assume thq active management of the enterprise and would devote two or three days in every two weeks to the enterprise, and that Alex. J. Groesbeck would take and pay for a one-fourth interest in the stock of the corporation, amounting to $3,750.
“These alleged representations of Russel T. Dobson are not shown to have been made to induce, or even in connection with, the giving of the mortgage. In their nature they are too uncertain and indefinite to constitute a defense, and, indeed, are not representations at all, but rather hazy promises as to the future. I reject them as a defense.
■ “Second; Defendant Inez L. Dobson further says that plaintiff had the use of, that is, converted the so-called ‘Haggerty-Groesbeck stock’ when he used it by turning it over to Potter and so secured his own release from his own, indorsement of the corporation’s $2,000 note at the Alpena National Bank. That it was the same in effect to plaintiff as if Groesbeck had paid in his money for. the stock and this money had been paid over by the company to repay to plaintiff the $2,370 secured by the mortgage in suit.
“I cannot assent to this position. Russel T. Dobson only turned over to Potter to secure his release from his indorsements at the bank his own one-fourth of the stock and not the ‘Haggerty-Groesbeck stock’ which he never owned, but which William B. Dobson always owned and held until he (William B.) passed it over to Potter to secure his own release from his own indorsements upon the same liabilities as Russel.
“Russel, as to the Haggerty-Groesbeck stock, acted merely as the agent of William B., and so it is stipulated in the writing. .(Exhibit G.)
“It was not Russel, but William B. Dobson, in effect and in fact, who transferred the Haggerty-Groesbeck stock to Potter in consideration that the latter pay the debts of the Echo Publishing Company, and thereby-secure the release from their respective indorsements not only of Russel, but of William B. as well, and for the same amounts. And I think it is manifest there is nothing in the guaranty agreement of June 3, 1914 (Exhibit G), nor in Russel-T. Dobson’s letter of transmittal (Exhibit D) in which he stipulates that he is to receive his $2,370 from the money expected to be received from Groesbeck which gave Inez L. Dobson any lien, or other right to have the Groesbeck stock held or used to protect her mortgage.
“But, rather, on the contrary, Russel T. Dobson expressly stipulated that the money expected to be received from Groesbeck for that stock should first be applied for his protection to repay his loan of $2,370, and by Exhibit G, Inez L. Dobson expressly contracted to that effect.
“The plaintiff is entitled to a decree^ for the foreclosure of the mortgage, the terms of said decree to be settled upon the usual notice.”

The decree is affirmed, with costs to the plaintiff against the appellant.

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


text:
    PEOPLE v. BLAZENZITZ.
    1. Criminal Law — Homicide—Witnesses—Failure to Indorse— Statutes.
    In a prosecution for homicide, the failure of the prosecution to indorse upon the information the names of two witnesses who saw the murderers running from the scene of the crime, and to produce them in court at the trial, held, reversible error; being a positive invasion of a substantial right of defendant under 3 Comp. Laws 1915, § 15761.
    2. Same — Evidence—Credibility of Witnesses for Jury.
    The failure to indorse and produce said witnesses is not excused because their testimony might be unfavorable to the prosecution, nor because they made conflicting statements; the credit to be given to their testimony being for the jury.
    Error to Wayne; Hunt (Ormond F.), J.
    Submitted October 15, 1920.
    (Docket No. 118.)
    Decided December 21, 1920.
    Joseph Blazenzitz was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.
    Reversed.

      Maurice E. Fitz-Gerald (Hollis Ha/rshman, of counsel), for appellant.

      Matthew H. Bishop, Prosecuting Attorney, and Robert T. Speed, Assistant Prosecuting Attorney, for the people.
   Clark, J.

On the evening of December 14, 1918, Thomas Houghton was shot in a bank at Redford. He died the following day. Defendant was convicted of murder in the first degree. The case is here on error. Error is assigned on the refusal of the trial court to grant a new trial on the ground of newly-discovered evidence and because of the failure of the prosecuting attorney to indorse upon the information the names of res gestse witnesses known to him to be such prior to the time of trial, and because of the failure of the prosecution to call and produce such witnesses. There was proof of death and of the cause of death. The evidence of the people was circumstantial. The circumstance and incidents of defendant’s arrest were related by police officers, which testimony tended to show that defendant was a man of bad character. Three witnesses testified to having seen defendant loitering in the street near the bank just before the shooting. Bert R. Vincent’s place of business was on the street about 80 feet from the bank, the second door to the west and on the same side of the street. He testified that while in his place of business that evening he heard two shots, that a moment or so later two men came running by, that he “ran to the door” “just inside of the door” from which place he saw the men running west on the street, “running away from the bank,” and he testified that defendant was one of the men. Defendant, by his testimony and that of three other witnesses, sought to establish an alibi.

It appears from affidavits in support of the motion for a new trial and from those in opposition to it that Joseph Operhall and Eugene Vincent were in the street near the bank at the time of the shooting. Operhall says in an affidavit that, following the shooting, he saw two men leave the bank and that at the time he was near the car track in the street in front of the bank. Vincent says in an affidavit that in an instant or so after the shooting he saw a man run down the steps of the bank and west on the street, and that he also saw another man leaving the bank, and Vincent claims to have been at the time in the street in front of the bank and to have been pushed aside by one of the men leaving the bank. In their affidavits supporting the motion Operhall and Vincent say in effect that defendant was not one of the men (said by the people to be the defendant and one Norman Shaible) whom they saw there after the shooting.

By the record it appears that neither defendant nor his counsel knew, until after the trial, that Operhall and Eugene Vincent had seen the men leave the bank and had knowledge of important facts in the case. But the prosecution had knowledge of the facts respecting Operhall and Eugene Vincent early in January, 1918. The information was filed February 25, 1918.

Opposing the motion affidavits were- filed showing that both Eugene Vincent and Operhall had made contradictory statements respecting the identity of men whom they saw leaving the bank, some of such statements being unfavorable to the defendant. There were affidavits tending to discredit seriofisly the character and credibility of Operhall. When the motion was argued the testimony of Operhall was taken, but not returned, by which the trial court says that he “apparently contradicted the statements made in the affidavit” filed in support of the motion and claimed that by promises he was induced to make the affidavit. The affidavit of an assistant prosecuting attorney says that in January, 1918, the defendant and Shaible were brought to the office of the prosecuting attorney and were “shown to Eugene Vincent and Joseph Operhall, and that the said Eugene Vincent and Joseph Operhall stated in the presence of this deponent that they were unable to identify the two defendants, as the two men they had seen running from the Redford Savings Bank on the night of December 14, 1918.” That defendant then learned or was advised that Eugene Vincent and Operhall had knowledge of material facts in the case is not shown. And although defendant was seen by Operhall on another occasion it is not claimed that he was known by defendant — nor are the affidavits of defendant and his counsel asserting such lack of knowledge on this record controverted. It is pointed out that there was testimony at the trial that just after the shooting Eugene Vincent was in the street in front of the place of business of Bert R. Vincent. Upon this showing it is contended by the prosecution that the motion for a new trial was properly denied, that the testimony of Operhall and Eugene Vincent if produced would have been cumulative merely, that no fact was' suppressed, that their production would not have inured to the benefit of the defendant nor changed the result.

The showing of the prosecution might be persuasive and its contention sustained if the motion for a new trial related merely to the question of newly-discovered evidence. The important question of fact on the trial was the identity of the murderers. By the failure of the prosecution to indorse the names of Eugene Vincent and Operhall as witnesses and to produce them at the trial, this being a case of homicide (see People v. Bonker, 37 Mich. 4), a serious question is presented, for upon this record the fact remains that Eugene Vincent and Operhall saw men leaving the bank following the shooting. These men were the only known persons who saw the alleged murderers leave the bank building, they were the first to see them after the shooting, they observed them at a different time and place than did the witness Bert R. Vincent. And Eugene Vincent had an opportunity to observe one of the alleged murderers at arm’s length. The failure to indorse and produce these witnesses is not a mere irregularity. It is a positive invasion of a substantial right of the defendant under the law. See 3 Comp. Laws 1915, § 15761; People v. Hall, 48 Mich. 487 (42 Am. Rep. 477); People v. Price, 74 Mich. 41; People v. Howes, 81 Mich. 400. Such invasions might not be very harmful in cases where defendants have the means to employ counsel to discover the facts, and to prepare a defense, but it would be otherwise with the unfortunate and the helpless poor accused of crime, if subjected to the whim of officers, to the suppression of evidence, to conviction on less than the truth. But the right secured by the law is the equal right of all. The invasion of such right is not to be palliated because of the righteous indignation of citizens at the prevalence of crime, nor because this murder was peculiarly atrocious and cowardly.

The failure to indorse and produce these witnesses is not excused because their testimony might be unfavorable to the prosecution — “they were unable to identify the two defendants (defendant and Shaible) as the two men they had seen running from the Redford Savings Bank,” nor because they made conflicting statements. The credit to be given to their testimony was for the jury.

Contending that the testimony, if given, would be cumulative, counsel cite People v. Higgins, 127 Mich. 291. This case is not in point. Thomas v. People, 39 Mich. 309, is in point. The contention has no merit.

Citing People v. Higgins, supra, counsel also contend that the failure to indorse and produce Eugene Vincent as a witness is excused by the fact that the defense was informed by the testimony of Bert R. Vincent at the trial that Eugene Vincent was in the vicinity of the bank at the time in question. Bert R. Vin-. cent, as has been stated, in his place of business about 80 feet from the bank, heard two shots and testified:

“Shortly after two men came running by and another young fellow not far behind called to me, ‘Oh, Uncle Bert, come on!’ That was my nephew (Eugene Vincent). When my nephew called to me, ‘Come on,’ I ran out the door.”

That by this testimony it was revealed to the defendant that Eugene Vincent was a res gestse witness we need not determine. The failure as to Operhall is not excused and it was the duty of the prosecution to indorse the names of both these witnesses known to the prosecution before the trial and to produce them in court at the trial, no obstacle to so doing being shown.

In Hurd v. People, 25 Mich. 415, it is said:

“But the prosecution can never, in a criminal case, properly claim a conviction upon evidence which expressly or by implication, shows but a part of the res gestse, or whole transaction, if it appears that the evidence of the rest of the transaction is attainable. This would be to deprive the defendant of the benefit of the presumption of innocence, and to throw upon him the burden of proving Iris innocence. It is the res gestse, or whole transaction, the burden of proving which rests upon the prosecution (so far at least as the evidence is attainable). It is that which constitutes the prosecutor’s case, and as to which the defendant has the right of cross-examination; it is that which the jury are entitled to have before them, and, ‘until this is shown, it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn/
“The prosecutor in a criminal case is. not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then, to put the defendant to the proof of the other part, so long as it appears at all probable from the evidence, that there may be any other part of the transaction undisclosed; especially, if it appears to the court that the evidence of the other portion is attainable. The only legitimate object of the prosecution is, ‘to show the whole transaction, as it was, whether its tendency be to establish guilt or innocence/ The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object, like that of the.court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner’s guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community.”

See, also, People v. Swetland, 77 Mich. 53; Maher v. People, 10 Mich. 212 (81 Am. Dec. 781); Brown v. People, 17 Mich. 429 (97 Am. Dec. 195); Patten v. People, 18 Mich. 314 (100 Am. Dec. 173); Meister v. People, 31 Mich. 99; Wellar v. People, 30 Mich. 16; People v. Gordon, 40 Mich. 716; Strang v. People, 24 Mich. 1; People v. McCullough, 81 Mich. 25; People v. Etter, 81 Mich. 570; People v. Deitz, 86 Mich. 419; People v. Henshaw, 52 Mich. 564; People v. Price, 74 Mich. 37; People v. Kenyon, 93 Mich. 19; People v. Germaine, 101 Mich. 485; People v. Machen, 101 Mich. 401; People v. McArron, 121 Mich. 1; People v. Grant, 111 Mich. 346; Tiffany Criminal Law (4th Ed.), p. 432.

The court erred in denying the motion for a new trial. The verdict and judgment are set aside and a new trial ordered. The defendant is remanded to the custody of the sheriff of Wayne'county.

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


text:
      In re SCHULTZ’S ESTATE.
    1. Adoption — Personalty — Descent and Distribution — Statutes — Construction.
    Where an adopted daughter dies intestate, leaving neither husband or issue, personal property left by her which she received from the adoptive father belongs to his heirs, under the provisions of 3 Comp. Laws 1915, § 11808, construed in connection with section 13913, subd. 6.
    2. Same — Identification of Personalty Question of Pact — Statutes — Construction.
    The contention that said section 11808 should not be construed to apply to personalty generally, such as money or the residue of an estate, because of the difficulty of determining whether the personal estate left by an adopted child had come from the adoptive parent or parents, cannot be sustained, since the identification of such property is a question of fact to be determined as in will cases where estates have been bestowed for life with power to use or expend the principal as well as income, with the remainder, after termination of the life estate, to be taken by others.
    On inheritance by or from adopted child, se© note in 17 L. R. A. 435.
    . Case-made from Wayne; Houghton (Samuel G.), J., presiding.
    Submitted October 13, 1920.
    (Docket No. 99.)
    Decided December 21, 1920.
    The Detroit Trust Company, administrator of the. estate of Minnie Schultz, deceased, presented its final account and asked for an order of final distribution. There was an order determining Julia Grosshans to be the heir of said estate, and Alex. J. Groesbeck, attorney general, appealed to the circuit court. Judgment affirming the probate order. The attorney general appeals.
    Affirmed.

      Alex. J. Groesbeclc, Attorney General, and Duane H. Mosier, Assistant Attorney General, for appellant.

      Henry C. Rummel, for appellee.
   Clark, J.

Upon the death of Carl Schultz, in 1914, his estate, valued at $3,000, descended to his adopted daughter and sole heir at law, Minnie Schultz. In 1918, Minnie Schultz died, intestate, without husband or natural kindred, and at her death there remained of the fund received from the estate of her adoptive father the sum of $800, held by the Detroit Trust Company, administrator of her estate by appointment of the probate court for Wayne county. Of the kindred of Carl Schultz, Julia Grosshans, a. niece, alone survives. The question in this case is whether the estate of Minnie Schultz descends to the said niece of the adoptive father or escheats to the people of the State. The question came to the circuit court for determination, the facts being stipulated by counsel, and it was there held that the estate descends to Julia Grosshans, the niece. The State has brought the matter here on case-made.

The distribution of estates is governed by statute. The attorney general contends that under the general statute providing for descent and disposition of personal estates, section 13913, 3 Comp. Laws 1915, the estate of Minnie Schultz does not descend to the kindred of her adoptive father, but, there being no husband or natural kindred of said Minnie Schultz, escheats to the people of the State by virtue of 3 Comp. Laws 1915, § 11795, subd. 6:

“If the intestate shall leave no wife nor husband nor kindred, his or her estate, as the case may be, shall escheat to the people of this State for the use of the primary school fund.”

See VanDerlyn v. Mack, 137 Mich. 146 (66 L. R. A. 437, 109 Am. St. Rep. 669, 4 Ann. Cas. 879); Ultz v. Upham, 177 Mich. 351.

Unless some Statute can be found making Julia Grosshans, niece of the adoptive father, Carl Schultz, an heir at law of Minnie Schultz, the adopted daughter, the contention of the attorney general must be sustained. The circuit judge was of the opinion that there was such a statute. Chapter 225, 3 Comp. Laws 1915, provides as to descent of real estate. There are in the chapter 14 sections, the last (11808) was added in 1891 and is as follows:

“Whenever any person heretofore or hereafter adopted by any person or persons, with intent to make such person an heir at law of the person or persons adopting the same, shall die intestate, leaving no issue, any real estate possessed by such person at the time of his or her decease, which has come to such person from or through such adopting parent or parents, shall descend to the persons and in the same manner as though such person had been the natural child of the person or persons from or through whom such estate shall have come as aforesaid.”

Section 1, chap. 57, judicature act of 1915 (section 13913, 3 Comp. Laws 1915), provides in part:

“Whenever any person shall die possessed of any personal estate or of any right or interest therein, not lawfully disposed of by his last will, the same shall be applied and distributed as follows,”

This is followed by seven subdivisions, the first five relating to distribution of wearing apparel and ornaments and household furniture, widow’s allowance, support of widow and children during pendency of probate proceedings, support of children under 10 years of age, and payment of debts. The sixth division is as follows:

“The residue, if any, of the personal estate shall be distributed as follows: One-third thereof to the widow of the deceased, and the remaining two-thirds to his children, or the issue of any deceased child or children, if any there be, by right of representation, except that if there be but one child, or the issue of such child living, then to the widow one-half of such residue and to such child, or the issue thereof, the other half, and if there be no widow nor child of the intestate living at his death, his estate shall be distributed to all his lineal descendants, and if all such descendants are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise they shall take by right of representation. In case the deceased shall leave á widow and no children, or the issue of any deceased child surviving him, then such residue, if it shall not exceed the sum of three thousand dollars, shall go to the widow and the other half to the father and mother of the deceased, if living, in equal shares; if either parent be deceased, such share shall go to the survivor, and if both parents be deceased, such share shall be distributed equally to the brothers and sisters and the lineal descendants of any deceased brother or sister by right of representation. And if there shall be neither father nor mother, nor brother nor sister, nor children of such brother or sister surviving, then such residue shall go to the widow. • In any other case the residue, if any, of the personal estate shall be distributed in the same proportion and to the same persons, and for the same purposes, as prescribed for the descent and disposition of the real estate.”

The seventh subdivision relates to the distribution of the personal estate of a femme covert and is also concluded:

“In any other case the residue, if any, of the personal estate shall be distributed in the same proportion and to the same persons, and for the same purposes as prescribed for the descent and disposition of the real estate.”

Is this case “any other case” under the concluding sentence of the sixth subdivision of said section 13913 ? We think so. Indeed to decide the case we must by the reference contained in said section 13913 return to said chapter 225 relating to descent of real property and determine whether this estate shall escheat to the people of the State under said section 11795, subd. 6, of said chapter or shall descend to Julia Grosshans under said section 11808 of said chapter. The reference to the chapter is entire. In the distribution of personal estate said section 11808 can be applied only in case the personal estate' “has come to such person (the person adopted) from or through such adopting parent or parents.” So in this case if the property left by Minnie Schultz at her death came to her from her adoptive father then, in disposing of that property, she is to be treated as the natural child of Carl Schultz and hence Julia Grosshans is to be treated as her heir at law. That such property did come from Carl Schultz is, we think, conceded. The stipulation of facts recites :

“The property of which he died possessed descended to said Minnie Schultz, the adopted daughter; that it was of the value of about three thousand dollars ($3,000) ; that said Minnie Schultz had been living on said $3,000 until her death, and that the balance of said $3,000 still unused is the $800 held by the Detroit Trust Company.”

It is argued that it was not intended that said section 11808 should be applied to personal estates generally because of the difficulty, if not impossibility, of determining whether the personal estate left by an adopted child, deceased intestate, had come to such child from or through the adoptive parent or parents, that the section might be applied to certain articles of personal property which, like real estate, are capable of identification, but could not be applied to money or to a general residue or remainder of a personal estate. This is answered by a line of will cases where estates have been bestowed for life with power to use and expend or dispose! of the principal as well as the income, with direction that the remainder after the determination of the life estate shall be taken by others. What constitutes such a remainder is a question of fact, and whether the personal estate of an adopted child, deceased intestate, came to such child from or through the adoptive parent or parents is likewise a question of fact.

See Glover v. Reid, 80 Mich. 228, and cases cited; Drier v. Gracey, 203 Mich. 399; Laberteaux v. Gale, 196 Mich. 150; Bateman v. Case, 170 Mich. 617; In re Moor’s Estate, 163 Mich. 353; Farlin v. Sanborn, 161 Mich. 615 (137 Am. St. Rep. 525).

It follows that the judgment is affirmed.

Mooee, C. J., and Steebe, Beooke, Fellows, Stone, Bied, and Shaepe, JJ., concurred.


text:
      In re GREENMAN. GREENMAN v. DIXON.
    1. Infants — Epileptics — Commitment to Home — Notice — Probate Courts — Jurisdiction—Statutes.
    The order and commitment of a child to the Michigan Farm Colony for Epileptics, established under 1 Comp. Laws 1915, §§ 1579-1619, by the probate court without giving the child at least three days’ notice of the hearing as required by 1 Comp. Laws 1915, § 1601, are void.
    2. Same — Compliance with Statute.
    Since the probate court derives its jurisdiction from the statute, to obtain jurisdiction its provisions must be strictly complied with.
    On necessity and sufficiency of notice of lunacy proceeding to the alleged lunatic, see notes in 23 L. R. A. 737; 26 L. R. A. (N. S.) 232.

      3. Same — Insane Persons — Supreme Court — Common-Law Jurisdiction.
    The Supreme Court’s common-law jurisdiction over infants, idiots, and insane persons does not empower it to commit a child to the Farm Colony for Epileptics, on determination that the commitment by the probate court is void for insufficient notice of hearing, since the child may be committed only upon the finding and determination that she is an epileptic and such finding and determination are originally for the probate court, under 1 Comp. Laws 1915, §§ 1601, 1613.
    4. Same — Delinquent Child — Authority of Probate Court.
    Where the child was a ward of the probate court as a delinquent under the provisions of 1 Comp. Laws 1915, § 2015, at the time of making the void order of commitment to the Farm Colony for Epileptics, the authority of the court was not terminated by said void order.
    Habeas corpus, proceedings, by Esther Greenman against Robert L. Dixon, medical superintendent of the Michigan Farm Colony for Epileptics, to obtain the custody of Lura Greenman, and certiorari to review such proceedings before Clark E. Higbee, probate judge of Kent county.
    Submitted October 20, 1920.
    (Calendar No. 29,408.)
    Proceedings, vacated December 21, 1920.

      Shelby B. Schurtz, for plaintiff.

      Alex. J. GroesbecTc, Attorney General, and Clare Re-tan, Assistant Attorney General, for defendants.
   Clark, J.

This is a habeas corpus proceeding to test the detention in the Michigan Farm Colony for Epileptics of Lura Greenman, 15 years of age, plaintiff's child. The writ is directed to Robert L. Dixon, medical superintendent of the institution, which was established under chapter 56, 1 Comp. Laws 1915, for the treatment of epileptic persons as distinguished from persons idiotic or insane. The writ was accompanied by a writ of certiorari to Hon. Clark E. Higbee, judge of probate of Kent county, to review the proceedings in the probate court of that county resulting in the detention of the child in the institution. The return of the medical superintendent states that the child is held by virtue) of an order and commitment of said court. The return of the judge of probate shows that the order and commitment are void for the following reasons. A petition for the admission of the child to the institution being filed, section 1601, 1 Comp. Laws 1915, provides that:

“Upon filing of such petition with the court, the court shall fix a day of hearing and shall give notice thereof to the person alleged to be epileptic and to his next of kin if they are within the county; to his guardian, if he has one; to the person in whose custody he is at the time of making the petition and to the prosecuting attorney of the county. Such notice shall be served not less than three full days before the time of hearing upon the persons to whom notice is directed.” * * *

The petition was filed on March 29, 1920. An order was made on that day fixing the day of hearing for March 31st, and directing that personal service of a copy of the order be made on the child at least 24 hours previous to the time of hearing. The service of the notice on the child was insufficient as to time. That there was a compliance with the other requirements of the. statute as to notice of the hearing is not shown, nor does it appear that any of those to whom the statute requires notice shall be given attended at the hearing.

The probate court derives its jurisdiction from the statute. To obtain jurisdiction in this case, therefore, the provisions of the statute should have been strictly pursued. See North v. Joslin, 59 Mich. 624; Grady v. Hughes, 64 Mich. 540; In re Phillips, 158 Mich. 155; In re Miller’s Estate, 173 Mich. 467; In re Allen, 26 L. R. A. (N. S.) 232 (82 Vt. 365, 73 Atl. 1078); 15 C. J. p. 802.

The right of the plaintiff to sue out the writ is not ■questioned. See In re Mould, 162 Mich. 7. But, though the order and commitment are void, counsel contend that this court, under its common-law jurisdiction over infants, idiots and insane persons, may act with reference to the question from its own conscience for the best interests of the child, following the rule that the placing of a child under proper influence and care is of the first consideration, and this regardless of the irregularity of the committal, citing In re Gould, 174 Mich. 663; In re Clancy, 108 Mich. 427; In re Solosth, 157 Mich. 224; Martin v. Benzie Circuit Judge, 200 Mich. 549; In re LaCroix, 160 Mich. 531; State v. Kilvington, 100 Tenn. 227 (45 S. W. 433, 41 L. R. A. 284); New York Foundling Hospital v. Gatti, 203 U. S. 429 (27 Sup. Ct. 53); In re Hickey, 85 Kan. 556 (118 Pac. 56, 41 L. R. A. [N. S.] 564).

The rule stated and authorities cited by counsel are not controlling in this case. Lura Greenman may be committed to the institution and there detained only in the event that she shall be found to be an epileptic, and that it shall be determined that it is necessary and for her best interest that she be committed thereto. Such finding and determination in this case are originally for the probate court of Kent county. See sections 1601 and 1613, 1 Comp. Laws 1915; In re Allen, supra; In re Dagley, 44 L. R. A. (N. S.) 389 (35 Okla. 180, 128 Pac. 699). Lura Greenman will, therefore, be discharged from such confinement in the institution on said order. All proceedings in the probate court in the cause, subsequent to the filing of the petition for the admission of the child to said institution, are set aside.

At the time of the filing of said petition and the making of said void and invalid order and commitment Lura Greenman was a ward of said probate court as a delinquent child by virtue of proceedings under the provision of section 2015, 1 Comp. Laws 1915. We are not advised that the authority of the probate court over the child under said proceedings has been terminated. It was not terminated by the void order and commitment aforesaid. So the discharge, as ordered, will be without prejudice or hindrance to any right or authority which the said probate court may have over said child under said statute and proceedings. No costs will be awarded.

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


author: Clark, J. Brooke and Fellows, JJ., concurred with Clark, J. Sharpe, J.

text:
    LAWSON v. BISHOP.
    1. Adverse Possession — Limitation of Actions — Taxation — Statutes.
    Under 3 Comp. Laws 1915, § 12311, subds. 1, 2, providing that no action for the recovery of lands or the possession thereof shall be brought or maintained unless within the time limited therefor: (1) Within 5 years, where defendant claims title under a deed upon a sale by an executor, etc., (2) within 10 years, where he claims under a tax deed, it is incumbent on one who so claims, when his title is attached, to offer in evidence his deed, prove his entry thereunder, and establish his adverse possession for the time fixed by the statute, in which case his entry must have been a lawful one to constitute a defense.

      2. Same — Trespasser—Lawful Entry Unnecessary.
    The right acquired under an adverse possession of 15 years, under 3 Comp. Laws 1915, § 12311, subd. 3, in no way depends upon the entry being lawful.
    3. Same — Quieting Title.
    Although plaintiff in a suit to quiet title entered upon the land under a tax deed without giving the statutory notice to redeem required by 1 Comp. Laws 1915, §§ 4138-4140, and was therefore a trespasser, where he remained in possession for more than 15 years he acquired title by adverse possession under 3 Comp. Laws 1915, § 12311, subd. 3.
    4. Same — Pleading — Taxation — Inconsistent Allegations — Estoppel.
    Plaintiff’s allegation of title in himself “for a period of more than 15 years theretofore, claiming under and by virtue of five certain tax deeds,” in the first paragraph of his hill of complaint, did not estop him from claiming under the 15-year statute in the second paragraph, since his rights should he determined on his claim in the bill taken as a whole and his prayer for relief thereunder.
    5. Equity — Pleading — Inconsistent Allegations — Prayer for Relief.
    Inconsistent allegations in a bill of complaint will not he allowed to control so long as the prayer of the hill is sufficiently broad to admit of granting the relief to which plaintiff is properly entitled under his pleadings and proofs.
    6. Adverse Possession — Tax Deeds — Admissibility as Evidence.
    Although the tax deeds under which plaintiff entered were insufficient to convey title, and he in no way relied on them to prove possession, they were admissible to show the extent of his possession and also to fix the time of his entry.
    7. Evidence — Judicial Notice — Taxation.
    The court may take judicial notice that large tracts of land in the northern part of the State were permitted to be sold for delinquent taxes after the valuable timber bad been removed therefrom.
    Fellows, Brooke, and Clark, JJ., dissenting.

      Appeal from Oceana; Vanderwerp (John), J.
    Submitted October 5, 1920.
    (Docket No. 10.)
    Decided December 21, 1920.
    Bill by Philip H. Lawson against John Bishop and others to quiet title to land. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      A. S. Hinds, for plaintiff.

      Bishop & Kilpatrick (R. R. Weaver, of counsel), for defendants.
   Clark, J.

(dissenting). In September, 1900, plaintiff received from the auditor general a tax deed, taxes of 1885 and 1886, of N. E. % of N. W. section 33, township 13 north, range 17 west, Michigan, and a tax deed, taxes of 1891-1894 of N. % of N. W. %, section 33, said township, and in December, 1901, three tax deeds, taxes of 1895-1897, respectively, of said 80-acre tract. Each deed contained the following proviso:

“Provided, however, that this indenture is subject to the relevant conditions imposed by Act No. 229 of • the Public Acts of 1897.”

The important part of the act is section 142 thereof (1 Comp. Laws 1915, § 4140):

“No purchaser under any tax sale hereafter made or of any State tax land or any State bid hereafter sold shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest as provided for in the preceding sections unless he shall have acquired from said parties their title thereto under conveyance from said party or parties of his or their interest in said lands.” * * *

No notice was given as provided by the statute. The plaintiff took possession of the 80 acres in 1900, “as soon as he got his.first deed,” which possession, was continuous by plaintiff and his tenants and for a short time by a grantee of plaintiff of a part of the land (in November, 1917), later reconveyed to plaintiff, to the time of commencing the suit, September, 1919. The defendant John Bishop on April 12, 1919, received by quitclaim deed of the 80 acres the title of the last holder thereof in the regular chain of title and in 1909 defendants John Bishop and Emma Bishop, his wife, received a quitclaim deed from Warren W. Britt, who, in April, 1904, received from the auditor general three tax deeds, one of the N. E. % of N. W. % of said section- for taxes of 1881-1884, 1887, 1888, another of the N. W. % of N. W. % of said section for taxes of 1887-1889 and the other-of the N. % of N. W. ^4 of said section for taxes of 1890. ■These deeds, under which defendants Bishop and wife claim, were recorded. In April, 1919, following the quitclaim deed first above mentioned, defendant John Bishop claimed to be the owner of the 80 acres in question, so advised plaintiff by letter, and caused a notice against trespassing to be posted on the land. Plaintiff in possession then filed his bill to quiet title, claiming to be the owner of the land under and by virtue of his tax deeds and also claiming by adverse possession under the general statute of limitations, 8 Comp. Laws 1915, § 12311.

Defendants Bishop and wife answered and denied that plaintiff had any right or title to the land and by cross-bill claimed title in themselves by reason of the aforesaid deeds, and asked that such title in them be quieted.

Defendant Williams was named as mortgagee in a mortgage made in 1866, appearing of record undischarged, covering the land in question, and defendant Gurney was the grantee in certain tax deeds covering part of the land, recorded in 1901. After hearing the circuit judge filed' an opinion from which we quote:

“The bill filed by the plaintiff claims title to the property and that he has been the owner thereof for a period of more than 15 years prior to the filing of the bill, claiming under and by virtue of five tax deeds covering the land in question.
“No notice was ever given under these deeds and the plaintiff went into possession immediately after securing the deeds. He claims, and the evidence fairly establishes, that he has been in continuous possession of this land ever since he went into possession thereof, which would be for a period exceeding 15 years from the commencement of such possession.
“The defendants claim that because the plaintiff went into possession under the tax deeds without giving notice, he was a trespasser and acquired no right to the land, nor was he entitled to go into the possession thereof, citing the cases of Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Corrigan v. Hinkley, 125 Mich. 125; Holmes v. Soule, 180 Mich. 526; also Huron Land Co. v. Robarge, 128 Mich. 686.
“I am. of the opinion that the defendants’ claims with reference to this matter is correct, and that plaintiff is therefore not entitled to a decree, for the reasons stated.”

Decree was entered dismissing the bill, and the cross-bill. Plaintiff has appealed.

By the briefs of counsel the important question presented is: Because of the above quoted section 4140, 1 Comp. Laws 1915, section 142, Act No. 229, Pub. Acts 1897, making entry into possession of the land by the purchaser under any tax sale or of any State tax land, or any State bid unlawful until six months after the required notice had been given, Is the plaintiff without right under the general statute of limitations, section 12311, 3 Comp. Laws 1915, chapter 9, judicature act of 1915, to claim any benefit of his possession for more than 15 years?

Plaintiff took possession of this land as a purchaser under a tax sale, as a purchaser under the tax deeds, without giving the notice required, by statute, sections 4188-4140, 1 Comp. Laws 1915. The possession was unlawful. It was forbidden by statute. The plaintiff is not aided by such possession, though continued beyond the statutory period.

In Holmes v. Soule, 180 Mich, at page 530, Justice Ostrander, speaking for the court, said :

“Defendants own the tax title and the land, subject to the right of complainant to redeem — a right which in law had not been extinguished because no proper notice to redeem has ever been given. Defendants are not aided, in law, by having occupied the land, if in fact they have occupied it (a fact not found by the trial court, and of which the testimony is not convincing), because they had no right to its possession. Corrigan v. Hinkley, 125 Mich. 125; Huron Land Co. v. Robarge, 128 Mich. 686; Holmes v. Loud, 149 Mich. 410; Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Morrison v. Semer, 164 Mich. 208; White v. Dunsmore, 167 Mich. 542; Powell v. Pierce, 168 Mich. 427; McRae v. Barber, 171 Mich. 111.”

See, also, Closser v. Remley, 195 Mich. 313; McBride v. Closser, 208 Mich. 398.

In Cook Land, etc., Co. v. McDonald, supra, decided December 21, 1908, it was held that the statute of limitations provided for in section 73 of the tax law, section 4070, 1 Comp. Laws 1915, had been repealed by Act No. 229, Pub. Acts 1897, section 142 of the tax law, section 4140, 1 Comp. Laws 1915. See, also, Holmes v. Soule, supra. In the later decisions above cited where reference is made to the statute of limitations as regards possession or adverse possession such reference must be held to be to the general statute, 3 Comp. Laws 1915, § 12311.

Whether the tax deeds to Britt are valid or invalid (see Auditor General v. Clifford, 143 Mich. 626) it is now unnecessary to determine, Britt having conveyed to Bishop and wife. The defendants John Bishop and Emma Bishop, not having appealed, cannot be given here the relief prayed against the plaintiff, nor can they be relieved as against the other defendants.

The decree should be affirmed, with costs of this court to defendants John Bishop and Emma Bishop.

Brooke and Fellows, JJ., concurred with Clark, J.

Sharpe, J.

I am unable to concur in the conclusion reached by Mr. Justice Clark. While plaintiff alleges in the first paragraph of his bill of complaint that he had been the owner of said lands “for a period of more than 15 years theretofore, claiming under and by virtue of five certain tax deeds,” in the second paragraph he claims that he has. become such owner in fee simple by reason of his adverse possession thereof for more than 15 years. The trial judge found that

“the evidence fairly establishes that he (plaintiff) has been in continuous possession of this land ever since he went into possession thereof, which would be for a period exceeding 15 years from the commencement of such possession.”

The question fairly presented is whether a purchaser under a tax deed who enters into possession without serving the notice of reconveyance required by the tax law can ever acquire a title thereto by adverse possession. If he cannot in 15 years, he cannot in 50.

The general statute of limitations (3 Comp. Laws 1915, § 12311) provides that no action for the recovery of lands or the possession thereof shall be brought or maintained unless within the time limited therefor: (1) within 5 years, where defendant claims title under a deed upon a sale by an executor, administrator, etc.; (2) within 10 years, where defendant claims under a tax deed; (3) within 15 years in all other cases, subject to the exceptions therein stated.

This statute shortens the time within which ouster proceedings may be brought, where possessory rights have been acquired under a deed purporting to convey title. It follows that no such rights under the first and second subdivisions of the statute can be acquired by one who enters as a trespasser because the foundation on which his title by adverse possession rests is a lawful entry claiming title under a conveyance. It is incumbent on one who so claims, when his title is attacked, to offer in evidence his deed, prove his entry thereunder and establish his adverse possession for the time fixed by the statute.

The cases cited by Mr. Justice Clark hold that section 142 of the tax law prohibits an entry under a tax deed, subject to its provisions, until the notice of re-conveyance is given, and therefore the person so entering becomes a trespasser. If so, it is clear that he cannot be aided by such possession for, before he is entitled to make proof thereof, he must show a lawful entry under a.tax deed.

It is these considerations which, in my opinion, caused this court to consider the claim made that the sections of the tax law limiting the time within which tax deeds and the possessory rights acquired thereunder could be assailed were repealed by the provisions of section 142. St. Mary’s Power Co. v. Water Power Co., 133 Mich. 470; Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Holmes v. Soule, 180 Mich. 526; Wolverine Land Co. v. Jerome, 188 Mich. 66. These sections are certainly rendered inoperative where the entry is made before possession can lawfully be taken, because such entry being prohibited and unlawful no possessory title can be predicated thereon. Such provisions may, however, apply when other objections are urged to the validity of the tax deed.

The right acquired under an adverse possession of 15 years in no way depends upon the entry being lawful. A trespasser may acquire such, a right. ■ The entry made by plaintiff was a trespass, hostile to the rights of the defendant, who was chargeable with notice thereof and who might have ejected plaintiff at any time before the 15 years had expired. He was not lulled into inaction by any conduct of plaintiff or by any acknowledgment that plaintiff was holding under him. As was said in Bower v. Earl, 18 Mich. 367:

“The acquiescence which will prevent the running of the statute must be that of the possessor in the owner’s' claim, and not that of the owner in a possession not acknowledged to be held under him. Acquiescence,! which is merely inaction, is the very thing which the statute contemplates as creating the limitation which! cuts off. the right.”

Many titles are based on “squatter’s rights,” which1 after the statutory period ripen into perfect titles.; Such a possession, whether with or without color of title, confers an indefeasible title in fee. Barnard v. Brown, 112 Mich. 452; McKay v. Gardner, 120 Mich. 267. The title thus acquired is not that of the original owner, but a new title by which the rights of all others claiming any interest in the land have been extinguished.

I am not impressed that, because the plaintiff alleged title in himself “for a period of more than 15 years theretofore, claiming under and by virtue of five certain tax deeds,” in the first paragraph of his bill of complaint, he is now estopped from claiming under the 15-year statute as he does in the second paragraph. His rights should be determined on his claim in the bill of complaint taken as a whole. The prayer for relief asks—

“That the legal title which your orator has acquired * * * by virtue of the operation of the statute of limitations, in his favor on account of his adverse possession and claim of title to said premises for the statutory period, may be declared by the decree * * * to constitute your orator the full and absolute owner of the said premises * * * in fee simple.”

In Taylor v. Young, 56 Mich. 285, 291, in speaking of inconsistent allegations in a bill of complaint, it is said:

“But these statements will not be allowed to control in a case like this, so long as the prayer of the bill is sufficiently broad to admit of granting the relief to which complainant is properly entitled under her pleadings and proofs.”

I am satisfied from the record that the plaintiff has established a perfect title by adverse possession for more than 15 years. His possessory rights are not to be determined by the fact that his original entry was made under the tax deeds. He was not required to, in any way, rely on these deeds to prove such possession. Although insufficient to convey title, they were admissible in evidence to show the extent of his possession and also to fix the time of his entry. Bower v. Earl, supra. No allusion need have been made to them in his bill of complaint. The allegation in the second paragraph that he had title to the land by reason of adverse possession for more than 15 years was sufficient, if sustained by proof, to entitle him to the relief prayed for.

We may, I think, take judicial notice of the fact that large tracts of land in the northern part of the State were permitted to be sold for delinquent taxes after the valuable timber had been removed .therefrom. Many of these lands were suitable for farms and tax titles on them were purchased by men and women for the purpose of making themselves homes. In many cases the notice of reconveyance or the manner and return of service has not been in strict compliance with the requirements of the law and the entry into possession of the purchaser has therefore been, as a matter of law, that of a trespasser. If now able, without reliance on his tax deed or any provision of the tax law, to make a perfect title in himself by an adverse possession of 15 years or more, I. am of the opinion that he should be protected therein. To hold otherwise will render his title subject to the scrutiny of those familiar with the holdings of this court relative to the infirmities affecting the notice served, and in many cases result in the loss to him of his home and the improvements made by him upon the land by many years of patient toil and endeavor.

The decree is reversed and one entered here granting the relief prayed for in the bill of complaint, with costs of both courts to plaintiff.

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


text:
    KLEIN v. POWER.
    Waters and Watercourses — Injunction—Pollution of Stream.
    On a bill by tbe owners of tbe subservient estate to enjoin tbe pollution of tbe waters of a creek traversing plaintiffs’ land, evidence held, insufficient to sustain tbe material allegations of tbe bill.
    Appeal from Oakland; Rockwell (Kleber P.), J.
    Submitted October 6, 1920.
    (Docket No. 31.)
    Decided December 21, 1920.

      Bill by Adele L. Klein, individually, and as executrix of the will of Frederick J. Klein, deceased, and others, against Lemuel A. Power and others to enjoin an alleged nuisance. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      James H. Pound, for plaintiffs.

      Pelton & McGee, for defendants.
   Clark, J.

Plaintiffs, owners of land traversed by a creek, not disputing that their land has the servitude of waters collected arid carried by a tile drain in the upper and adjoining land of defendants, complain, seeking relief by injunction, that defendants have by the tile drain cast into the creek and upon the premises of plaintiffs, to their damage, malodorous, noisome and deleterious matter, particularly by connecting the tile draip with a toilet room and sink in the dwelling of defendants. After answer and hearing the circuit court dismissed the bill of complaint and plaintiffs have appealed. In plaintiffs’ behalf there was testimony of witnesses to the presence of the aforesaid matter in the creek and in a catch basin which is a part of the tile drain, which testimony was contradicted by witnesses for defendants. Defendants had neither toilet room nor sink in their dwelling. Plaintiffs were mistaken in their allegation in that regard. We think the record fails to sustain the material allegations of the bill and we are confirmed in this opinion by the action of the trial judge who saw the witnesses and heard their testimony.

The decree is affirmed, with costs to the defendants.

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