author: Blair, J.

text:
    BAUER v. STATE BOARD OF AGRICULTURE.
    1. Colleges and Universities — State Board oe Agriculture.
    Under sections 7 and 8, Art. 11, Const, of 1909, the State board of agriculture has exclusive control of the general funds of the Michigan agricultural college. Per Ostrander, C. J., and MoAlvay and Blair, JJ.
    2. Same.
    It is within the power of the board to appropriate such general funds for the purpose of constructing a building upon the] college grounds, to be leased to the United States for a post' office. Per Ostrander, C. J., and MoAlvay and Blair, JJ.
    3. Mandamus — Propriety oe Remedy — Restraining Action.
    Mandamus is not the proper remedy to restrain the State board of agriculture from an alleged misapplication of the funds of the Michigan Agricultural College. Per Moore, Hooker, Brooke, Stone, and Bird, JJ.
    Mandamus by Anton C. Bauer ‘ against the State board of agriculture to compel respondents to abrogate a contract with the United States post office department and to restrain the construction of a building to be leased for use as a post office.
    Submitted November 29, 1910.
    (Calendar No. 24,265.)
    Writ denied February 1, 1911.

      Chas. H. Chase, for relator.

      Franz C. Kuhn, Attorney General {Arthur P. Hicks, of counsel), for respondent.
   Blair, J.

Upon the petition of the relator an order to show cause was made by this court, directed to the respondent, the State board of agriculture, requiring it to show cause why the writ of mandamus should not issue to compel it to—

“Abrogate the contract heretofore made or attempted to be made with the United States government, whereby it, the said State board of agriculture, has agreed to furnish quarters for a United States post office at East Lansing, Mich. (5) That it cease from construction and expending moneys for construction of quarters for a United States post office at East Lansing, Mich, (c) That it cease from furnishing quarters for a United States post office at East Lansing, Mich., within such reasonable time as to this court shall seem reasonable and expedient.”

The interest of relator, as disclosed by the record, is that he is a citizen and a taxpayer of the county of Ingham, doing a mercantile business in the city of East Lansing in a building of which he has a lease to and including August 31, 1916; that there was an agreement entered into with W. R. Hinman, assistant superintendent of the post office department at Washington, having charge of buildings and leases, to locate the post office at East Lansing in relator’s leased building; that this agreement was not executed and delivered by the post office department because of the intervention of the respondent, through its secretary, which resulted in a contract between the respondent and the post office department of the United States, whereby the respondent agreed to furnish quarters and equipment for the said post office, to be located upon the college grounds, for an annual rental of $600.

Relator contends:

“The law creating the State agricultural college and the State board of agriculture contains no provision by which it can be inferred that the State board of agriculture is clothed with power to engage in the business of building for and furnishing quarters to the United States for a post office any more than to a private individual for his private business, nor does such right arise by implication from any of the powers granted said board ”

We are of the opinion that this case is ruled by Sterling v. Regents of University, 110 Mich. 369 (68 N. W. 253, 34 L. R. A. 150). In the Constitution of 1909 two new sections, 7 and 8, relative to the State board of agriculture, were added to article 11, the effect of which was to make the State board of agriculture a constitutional board - elected by the people instead of a statutory board appointed by the governor, as it had existed since 1861, and to define the principal powers and duties of the board in the Constitution itself. It is apparent from the debates in the constitutional convention, as well as from the language of sections 7 and 8, that it was the intention to place the State board of agriculture and the agricultural college upon the same footing as the board of regents and the university. Among other expressions of the delegates to the convention, we quote the following:

‘Mr. Gore: Mr. President, the last section of this proposal which was defeated yesterday, I have been informed, was defeated under some misapprehension. I know that I was laboring under an apprehension that there was very little, if any, demand for that portion of the proposal as contained in the last paragraph. I am advised that the friends of the agricultural college all over this State are very much interested in that portion of the proposal becoming a part of the revised Constitution. It is obvious that the requirements of the agricultural college are on a par with the university so far as its management is concerned. There is no doubt that the friends of that college, the particular friends I now refer to, all over the State, will take such an interest in its welfare that it can properly be intrusted to a board of regents in the same manner as the university is now conducted. I therefore trust that this proposal will meet with the favorable judgment of the convention.”
“Mr. W. E. Brown: The words ‘members of the board ’ were stricken out of the tentative draft on page 53, line 82, and the words ‘ State board of agriculture ’ were substituted in their place. And in the same line the words ‘ may be ’ were stricken out and the words ‘ often as' were substituted in their place, so that the section follows the wording of the section with reference to the regents. In line 86 of the tentative draft, the word ‘ State,’ and in line 8?, the words * of agriculture ’ were stricken out, and at the end of the section these words were added, ‘ and shall perform such other duties as may be prescribed by law.’ We ascertained after the section was passed that there were other duties besides these that the law prescribes to be performed by the board of agriculture, and we took it that it was your intention that the entire duties as prescribed by law should apply to this board until such time as its duties might be changed.”

The addition to the last clause of section 8 of the words, “ and shall perform such other duties as may be prescribed by law,” makes it clear that the duties to be prescribed by the legislature are other than “ the general supervision of the college and the direction and control of all agricultural college funds,” as to which, as we held in Sterling v. Regents of University, supra, the State board of agriculture has exclusive supervision and control. We do not intend to hold that an act of the board might not be so subversive of the purposes for which the board was created as to warrant the intervention of the courts, but we do not think this record presents such a case, nor do we intend to hold that the legislature may not make appropriations for specific objects or attach conditions which would be binding upon the State board of agriculture in case they accepted the appropriations; but we do hold that as to the general funds appropriated for the general purposes of the agricultural college, the board has the ex-elusive control and direction, to the same extent that we held such power was possessed by the board of regents in the Sterling Case above referred to.

The writ is denied, but without costs.

Ostrander, O. J., and McAlvay, J., concurred with Blair, J.

Moore, J. I concur in the result, but do not regard mandamus as the proper remedy.

Hooker, Brooke, and Stone, JJ., concurred with Moore, J.

Bird, J. I concur in the result on the sole ground that mandamus is not the proper remedy.


source: Caselaw Access Project

license: Public Domain

text:
    COWHAM v. SHIPMAN.
    Accounting — Partnership.
    In a suit by the administrator of one deceased partner for an accounting against the other partner, who acted as attorney for certain Indians having claims against the United States, and who secured an appropriation by congress, after considerable litigation, by which the claims were paid, — under evidence showing that the Indians who shared in the fund appropriated were in part identical with those who engaged defendant as attorney for a commission, an accounting is required, on appeal, of the share of complainant as agreed between the partners, based upon the total amount collected, instead of the amount which defendant claimed was actually paid to the portion of Indian claimants who first employed him.
    Appeal from Branch; Yaple, J.
    Submitted November 17, 1910.
    (Docket No. 63.)
    Decided February 1, 1911.

      Bill by William F. Cowham, special administrator of the estate of Edward Twiss, deceased, against John B. Shipman for an accounting. From a decree for an insufficient amount, complainant appeals.
    Reversed.

      Thomas E. Barkworth, for complainant.

      Mark 8. Andrews, for defendant.
   Blair, J.

An accounting has been had in this cause pursuant to the decree in Cowham v. Shipman, 151 Mich. 673 (115 N. W. 991). The account stated by defendant was as follows:

Amount of the appropriation.-............. $78,329 25
Number of Indians to be distributed among..272
Share of each Indian therein............... 287 97£
Number of Indians paid who were parties to said contracts__________________________ 22
Total amount paid to said 22 Indians_______ 6,335 45
Gross amount of commissions on sums paid said 22 Indians.................... 653 54
One-sixth of gross amount of said commission___________________________________ 105 59

The circuit judge, before whom the account was taken in open court, found the account as stated by defendant to be correct, and decreed payment to the complainant of the said sum of $105.59. From this decree, complainant appeals to this court.

Under our decree in the principal case the question of fact for consideration upon the accounting was: What was the amount of the commissions received from the Indians who were parties to the first two contracts made by Twiss and defendant ? The defendant testified, in accordance with the account as stated by him, that there were only 88 Indians paid out of the appropriation who were parties to said contracts, basing his testimony upon an examination of certain powers of attorney procured from the Indians and filed in the office of the clerk of the court of claims. This testimony was taken under objection that it was not the best evidence. Defendant also testified as to the two contracts referred to in the original case as follows:

“That these contracts were thrown out by the department because it did not appear that they were signed by anybody who had authority to bind the Indians who were named as parties in the contract. They were of no use whatever, and never were used by me in any case in any way, shape, or manner, except to the extent that they were ratified in these little powers of attorney that I spoke of before, by which and under which I commenced suit in the court of claims wherein final judgment was rendered on something over $100,000, and ultimately where the government paid $156,000. I do not recollect the exact date that the suit was commenced. However, that is the one, and that is just the suit and the only suit, and the only place where those contracts were used, or that I could use them successfully in the department, and I could use them there only as to the extent that they had been ratified by the Indians.”

Complainant put in evidence the claimants’ requests for findings of fact filed November 26, 1900, by defendant as attorney for claimants in the court of claims of the United States in the claim of Phineas Pam-To-Pee v. U. S., 86 Ct. Cl. 427. A portion of these requests is as follows:

“(1) To judicially determine the claim of certain Indians against the United States, congress passed an act entitled ‘An act to ascertain the amount due the Pottawatomie Indians of Michigan and Indiana,’approved March 19, 1890 (26 U. S. Stat. at Large, p. 24, chap. 39), under which two suits were commenced in this court; one entitled ‘The Pottawatomie Indians of Michigan and Indiana v. The United States, No. 16,743,’ and the other ‘Phineas Pam-To-Pee and 1,371 other Pottawatomie Indians of Michigan and Indiana v. The United States, No. 16,842.’ Opinion in 27 Ct. Cl. 403. * * *
“(3 ) On motion of the defendants, the two cases were consolidated and tried as one, and judgment entered therein June 27, 1892, in favor of a portion of the Indians who were claimants and against the United States for $104,626, that being their portion of the annuities due and unpaid them up to that date under the twelve treaties mentioned in the petitions, but also establishing thereby their right to the annuities to grow due thereunder as well, which judgment was affirmed in the Supreme Court on the claimants’ appeal. 37 Ct. Cl. 403; 148 U. S. 691 (13 Sup. Ct. 743).
“(4) The parties in whose favor said judgment was rendered are Indians who were in both of said suits as petitioners and claimants therein, a portion being in case No. 16,743, and' another portion as claimants in case No. 16,843. 37 Ct. Cl. 403, finding 13. * * *
“(7) The claimants in this cause are a portion of the Indians in whose favor the judgment mentioned was rendered. Rec. 34 to 87. 37 Ct. Cl. 403.
“(8 ) The total number of Indians recovering said judgment and entitled to share in its payment was 544, of whom 373 are claimants in this case. Rec. 35, answer 16; Rec. 34 to 87; Brief, pp. 13 to 20. * * *
“(14) The names of the 373 claimants in this cause who received nothing upon said judgment, nor were paid any part of the fund appropriated to pay it, are contained and described in Schedule A hereto annexed.
“(15) $78,339.35 of the moneys appropriated by Congress to pay said judgment and the annuities thereby established, as stated in the ninth request, belongto the 373 claimants mentioned in request 14, and is wrongfully withheld from them by the defendant, the amount belonging to each being $387.97.”

Complainant also relies upon the proceedings relative to said claim' before the court of claims and as reviewed by the Supreme Court of the United States. See Pam-To-Pee v. U. S., 37 Ct. Cl. 403; Id. 36 Ct. Cl. 437; Id. 148 U. S. 691 (13 Sup. Ct. 742); Id. 187 U. S. 371 (23 Sup. Ct. 143); and the act of congress approved April 31, 1904, providing, in substance:

“To pay to the Pottawatomie Indians of Michigan, whose names are set forth in schedule A, annexed to claimants’ requests for findings of fact, as stated and found by the' court of claims in finding 4, in the case of Phineas Pam-To-Pee and others against the United States, reported in the thirty-sixth court of claims reports at page four hundred and thirty, there is hereby appropriated, out of any money in the treasury not otherwise appropriated, the sum of seventy-eight thousand three hundred and twenty-nine dollars and twenty-five cents, the secretary of the interior to distribute and pay the same to the Indians respectively mentioned in said schedule A, and if any of them have died, then the sum or share that would have been paid to such Indian or Indians, respectively, if living, the secretary shall pay to the heirs or legal representatives of each of those dead, such payments, when made, to be in full for any and all claims which said Indians may have under or by virtue of the treaty and articles supplementary thereto, made with the Pottawatomie Indians September twenty-sixth and twenty-seventh, eighteen hundred and thirty-three, and duly proclaimed February twenty-first, eighteen hundred and thirty-five, said sum to be immediately available.”

Finding 4 of the court of claims referred to was as follows:

“4. None of the Indians, parties in or represented by the present suit, were paid as aforesaid. A large number of them, to wit, 272, whose names are set forth in schedule A annexed to claimants’ requests for findings, were descended from Indians whose names were enrolled on the rolls of Indians in Michigan in the years 1843, 1844, and 1866. A portion of the Indians who remained in Michigan as coming within the exemption of the treaty of September 27, 1833, were represented in both petitions in the cases of the Pottawatomie Indians v. United States and the Pam-To-Pee Indians v. United, States.”

The two contracts contained the names of numerous Indians. As will appear from the cases referred to, defendant filed his first petition in the court of claims November 5, 1890, in the name of Phineas Pam-To-Pee and 1371 other Indians, and in his petition, which was verified by defendant, he showed “that your petitioners number 1372 and their names and residences are as follows,” etc., and in his verification of the petition defendant “made oath that he is the authorized attorney of the Indians named as petitioners in the foregoing petition in the matters above mentioned.” Defendant, having failed to secure through the distribution ordered by the court of claims in the first suit the amount to which he was entitled, instituted the second suit (36 Ct. Cl., supra), and it was in this suit that the request for findings of fact was filed which complainant introduced in evidence on the accounting. After the judgment in 27 Ct. Cl., supra, defendant, on July 27, 1895, wrote to the secretary of the interior, complaining of the incorrect method being pursued in taking the census of the Indians entitled to distribution under the judgment, and inclosing “the names of heirs whom I represent (as far as ascertained to date), and whose ancestors are named on the pay rolls, as well as those entitled in their own right, the Nottawasepis and Pokagons being in separate lists,” etc. The list contained “the names of over one hundred and fifty of the claimants herein, the names of their ancestors and number on the pay roll of 1843 and 1844 being given as stated in the letter.” (36 Ct. Cl. 430.) In his brief, defendant stated that his letter inclosed “a list containing the names of over 200 of the claimants in this cause, the names of their ancestors and number on the pay rolls of 1843 and 1844 being also given.” In his supplemental brief in the principal case in this court, defendant says:

“After this suit went to final judgment on appeal to the Supreme Court in 1893, necessarily the question was how to collect the fees when the government finally paid the claims. As the contracts expired in January, 1894, they must be kept alive, and these documents mentioned in the paper given Twiss August 2, 1894, were used for that purpose. * * * All matters with the Indians that Twiss and the defendant contemplated when the paper of August 2, 1894, was made, was the collection of the money going to the Indians under the judgment already rendered, and their fees out of it. There was nothing left for them to do to finish the business. The contracts ‘made and to be made’ recited in the paper were for the same purpose. They were designed to affirm and enable them to carry out and complete their contracts with the Indians by getting that money about which at that time no question had arisen, nor did it arise until two years later. It was expected that other Indians would also sign more of the ‘several papers,’ but as the power to act and handle the fund was given the defendant solely, the assignment therein was made to protect Twiss. But it was all one matter and one and the same business.”

It is clear that the proceedings of the petitioners before the court of claims last referred to were for the purpose of compelling payment to them of that portion of the amount appropriated by congress on August 23, 1894, to which they were entitled, but which they had failed to receive on the distribution. The court of claims in the case in 36 Ct. Cl. having dismissed the claim, the case was appealed to the Supreme Court of the United States by defendant, and is reported in 187 U. S. 371 (23 Sup. Ct. 142), where the judgment of the court of claims was affirmed, and it was held that any further relief for the petitioners must be obtained from congress and could not be given by the courts.

The contention of the petitioners, as stated by Mr. Justice Brewer, delivering the majority opinion of the court, was:

“That a mistake having been made in the matter of identification, the government must assume all the burden of the mistake, and pay a second time that which it has once paid in pursuance of the direction of the court. That is really the contention of the petitioners.
“ They were petitioners in one of the original suits, and contend that they were entitled to share in the fund, and that, as the full amount awarded by the court and appropriated by congress has already been paid to others, they are entitled to a judgment against the government for that which ought to have been paid to them out of the prior appropriation. The court of claims finds that of these petitioners 272 ought to have been placed upon the census roll, and were entitled to a share in the fund. The failure to receive their share may be a hardship to these petitioners, but it must be remembered that the method of ascertaining those entitled was prescribed by the court and pursued by the government. Having been so pursued, that fund must be considered as properly distributed.”

The judgment in 27 Ct. Cl., supra, was incorrectly stated in the opinion in the instant case. It was not “in favor of Critcher’s Indians and against those represented by Shipman and Twiss,” but was in favor of the Pottawatomie Indians of Michigan and Indiana generally; the ascertainment of the particular Indians who were entitled to a share being left to the government officials charged with the distribution of the fund appropriated by congress. Critcher’s Indians furnished proof of identification and received their share of the judgment. The defendant’s Indians specified in schedule A did not furnish such proof, although, as stated by Mr. Justice Brewer—

“ Obviously these petitioners, whose names and places of residence were stated in the second of the original petitions, could, if they had seen fit, have furnished proofs of identification.” 187 U. S., bottom page 375, top page 376 (23 Sup. Ct. 144).

And again:

“ There is an apparent hardship in the result of this litigation, but one which we are constrained to believe the plaintiffs are chiefly responsible for and which can be relieved only by the action of congress.”

Regardless of the fact that a considerable number of the names in schedule A are identical with names contained in the contracts, we are of the opinion that it appears from the records referred to and the written statements of defendant that the Indians in schedule A were a portion of the Indians in the first suit, or their heirs, in whose favor the judgment was rendered. The appropriation by congress, doubtless moved by the apparent hardship referred to by Mr. Justice Brewer, was of the precise amount claimed by defendant in the second suit before the court of claims and in favor of the Indians or their heirs named in his schedule A.

We are of the opinion that complainant has established his right to one-sixth of 10 per cent, of the amount appropriated by congress, and for that sum with interest from the date of collection by defendant a decree may be entered.

Ostrander, C. J., and Bird, Hooker, Moore, Mc-Alvay, Brooke, and Stone, JJ., concurred.


author: Blair, J

text:
    WINEGAR v. FRITZ.
    1. Appeal and Error — Parties—Chancery Practice.
    A defendant in a suit in equity, who is made party defendant by a oo-defendant’s cross-bill, is an opposite or adverse party to such co-defendant on proceedings to perfect an appeal from the dismissal of the cross-bill.
    2. Same — Notice—Practice.
    Where a defendant, who asks relief in a cross-bill against another defendant, receives no notice from such cross-defendant of the entry of a decree dismissing his cross-bill, the provisions of chancery rule 37 (158 Mich, xxix) do not apply, and the court has authority under Act No. 299, Pub. Acts 1909, to extend the time for settling a case, after the expiration of sixty days from the entry of the decree, although no extension has been obtained during the sixty-day period.
    Bill by William S. Winegar, trustee in bankruptcy of the Household Furniture Company against Mac G. Fritz and other defendants, to enforce stockholders’ liability. On motion of Henry Sullivan, defendant, to dismiss the appeal of Frank J. Dettenthaler, a co-defendant, from a decree dismissing a cross-bill praying affirmative relief against defendant Sullivan.
    Submitted November 18, 1910.
    (Calendar No. 24,285.)
    Motion denied February 1, 1911.

      James H. Campbell, for the motion.

      Hyde, Earle & Thornton, contra.

   Blair, J

The cross-bill sought affirmative relief against defendant Sullivan. The decree granted the relief prayed for in the original bill and dismissed the cross-bill. So far as the relief prayed for in the cross-bill was concerned, the defendant Sullivan was an opposite, or adverse party. The decree was dated October 9 and entered October 11, 1909. October 9th an order was entered on motion of solicitors for Dettenthaler, without notice to any one, staying proceedings for 40 days. November 17th the appeal bond was filed, in accordance with stipulation with solicitors for complainant Winegar. November 19th order was entered on stipulation between solicitors for Winegar and Dettenthaler extending time 90 days. All of these orders were made without notice to Sullivan. The subsequent orders were on cause shown and notice to Sullivan, he appearing specially and objecting to them.

Counsel for defendant Sullivan contends—

“That the court or judge has no power to grant an extension of time to serve a case and perfect an appeal after the expiration of the sixty days to a party who has not served a case or obtained an extension within the sixty days.”

Act No. 299, Pub. Acts 1909, was in force at the time the decree was entered. The only provisions in the act as to extending time are contained in section 3, which contains no express or implied limitation as to the time when the order may be “made except that the time may not be extended beyond one year. The 60 days provision referred to by counsel is found in the rule adopted by this court February 3, 1910, in pursuance of section 5 of the act. Written notice of the filing of the decree was served upon the solicitors for defendant and cross-complainant Dettenthaler on October 11, 1909. It was, therefore, impossible for appellant to comply with the rule, and the court’s authority to grant the extension must depend upon the statute. Defendant Sullivan had notice of the applications and orders subsequent to those above referred to, and had abundant opportunity to protect his rights. We think the orders were within the authority conferred upon the court by the statute. Roach v. Wayne Circuit Judge, 117 Mich. 242 (75 N. W. 465).

The motion is denied.

Ostrander, C. J., and Bird, Hooker, and Stone, JJ., concurred.

       Chancery Rule 37, 158 Mich. xxix.


author: Brooke, J.

text:
    FERRY v. MILLER.
    1. Mortgages — Deed as Security por Loan.
    Where a husband and wife, in order to effect a loan, each deed certain lots to parties advancing the funds, and where the husband takes from the grantees a land contract of the premises in consideration that he repay the loan and in pursuance of an oral arrangement with his wife that the real property contributed by her should belong to him, the transaction created a mortgage lien upon all the property, leaving the legal title in the respective owners.
    2. Deeds — Real Property — Interests in Land — Statute op
    Frauds — Husband and Wipe.
    An oral agreement between a wife and her husband that if he would secure $200 for her use, she would deed to him certain real property, under which arrangement he borrowed money, caused the wife to deed her property to the parties making the advancement, and caused them to execute a land contract to him, is void and conveys no title to the husband under 3 Comp. Laws, § 9509.
    3. Mortgages — Deeds—Redemption—Subrogation.
    Since such transaction and such mortgage were single, complainant, as grantee of the wife’s interest in two lots, could not be permitted to redeem her lots by contributing a proportionate amount of the mortgage, but on payment of the entire sum might be subrogated to the rights of the mortgagee in a proportionate interest in the realty not owned by complainant.
    Appeal from Calhoun; North, J.
    Submitted November 16, 1910.
    (Docket No. 88.)
    Decided February 1, 1911.
    Bill by Sarah B. Ferry against Silas A. Miller, Horace L. Cronk, and Sarah A. Cronk to redeem from a deed given as security for a loan and to obtain other relief. From a decree dismissing complainant’s bill, complainant appeals.
    Reversed.

      Smedley, Hall & Freeland, for complainant.

      J. M. Powers, for defendants Cronk.

      D. C. Salisbury, for defendant Miller.
    On November 9, 1907, Ida Mae Miller, wife of defendant Silas A. Miller, was confined in the Calhoun county jail in default of the payment of a fine of $200. On that day she was the owner of lots 93, 94, 95, and 96 of Highland Park addition to the city of Battle Creek. Those lots were subject to an incumbrance of $333.75 to the Port Huron Building & Loan Association, as well as to a lien and attachment placed thereon by defendant Silas A. Miller, which on November 9, 1907, is said to have been without validity. On that day Ida Mae Miller sent for her husband, and urged him to raise the $200 necessary to pay her fine and secure her liberty. She proposed, in consideration of his doing this, to deed to him absolutely the four lots above described. Defendant Miller was unable to raise the sum required upon her four lots alone, but arranged with defendants Cronk to borrow from them $270 upon the security of Mrs. Miller’s four lots and lots 148, 32, 40, and 85 of Hutchinson’s addition to the city of Battle Creek, which belonged to him. It was arranged that, instead of taking a mortgage, all eight of the lots should be deeded to the Cronks, which was done as follows: Miller and wife joined in making a deed of his four lots, and Ida Mae Miller deeded her four lots individually to the Cronks. Thereupon the Cronks executed a land contract to defendant Silas A. Miller covering all eight of the lots, which provided for the conveyance to him of all of them upon payment of the sum of $270 and interest at a date named. Miller used $200 of this sum to pay his wife’s fine, and retained the balance for his own use. On November 30, 1908, Ida Mae Miller, for a valuable consideration, deeded to complainant lots 93 and 94, being two of the lots she had previously conveyed to the Cronks, upon which there stood a dwelling.

      Later complainant went into possession of the two lots, and filed her bill of complaint against all of the defendants, praying for an accounting and for permission to redeem from the mortgage to the Cronks. To this bill of complaint defendants Cronk answered, admitting that the deeds were taken as security for the loan only, and by cross-bill asked for a foreclosure of their mortgage lien. Defendant Silas A. Miller answered and filed a cross-bill, wherein he prayed that he be decreed to be the owner of the eight lots subject to the mortgage to the Cronks. A decree was entered holding defendant Miller to be the owner of all eight of the lots, and providing for the foreclosure of the mortgage lien of the Cronks. From this decree, complainant appeals.
   Brooke, J.

(after stating the facts). The only question presented by this record is whether Mrs. Miller or her grantee owns the four lots she conveyed to the Cronks, subject to' their mortgage lien, or whether they belong, as held by the learned circuit judge, to her husband. It is not questioned upon this record that Mrs. Miller agreed with her husband that, if he would raise the amount of her fine and secure her release from jail, she would deed absolutely to him, or to any one for him, the four lots she owned. He testifies (and is not contradicted) that he took her deed directly to the Cronks, instead of to himself, in order to save the expense of making and recording an additional deed. She did not, however, in fact, convey to him, and he, in fact, paid her nothing for her conveyance to the Cronks. It seems to us clear that the legal effect of the transaction was to create a mortgage lien upon all of the property, the legal title to which remained in the individuals who each contributed four lots as security for the loan. At the time of the transaction it is no doubt true that Ida Mae Miller believed she was absolutely divesting herself of title to her four lots. This, however, was not the legal effect of her act. Her agreement to convey to her husband was

void under the statute (3 Comp. Laws, § 9509), and cannot be enforced. Messmore v. Cunningham, 78 Mich. 623 (44 N. W. 145); Waldron v. Merrill, 154 Mich. 203 (117 N. W. 631); Detroit, etc., B. Co. v. Hartz, 147 Mich. 354 (110 N. W. 1089); Hester v. Sullivan, 147 Mich. 493 (111 N. W. 85, 1033, 9 L. R. A. [N. S.] 1106).

The decree of the court below is affirmed as to defendants Cronk, with costs of both courts. The transaction was a single one and the mortgage a single one. Therefore it is impossible to permit complainant to redeem upon payment of a proportionate amount of the mortgage. Upon payment of the whole amount, however, she may be subrogated to the rights of the mortgagee and collect a proportionate amount from the six lots not owned by her.

Complainant will recover costs of both courts against defendant Silas A. Miller.

Bird, McAlvay, Blair, and Stone, JJ., concurred.