text:
    GEE v. HASBROUCK.
    1. Executors and Administrators — Accounting—Findings’ of Fact — Appeal.
    Findings of fact by the trial court on an appeal from an administrator’s accounting are conclusive on the Supreme Court if there is evidence to support them.
    2. Wills —Construction —Use of Personalty — Right to Custody.
    The rule that a legatee of the use of personal estate consisting of money cannot demand its custody from the executor is not applicable where the language of the will indicates not only a right to consume the estate if necessary, but a right to the custody as well..
    3. Same — Accounting by Executor.
    Where testator bequeathed to his wife, “to have” during her widowhood, all of his personal estate, and to others all of the property that might “revert” to his estate, the widow was entitled to the possession and control of such property, and the executor, having turned it over to her, was chargeable with only so much as he received back.
    4. Same.
    Where testator left all of his estate to his wife during her widowhood, and she lived with the executor, promising to pay her board, the value -of such board should be allowed to him in his account, being equivalent to money paid for her support.

      5. Same.
    On an accounting by the executor of a will giving the use of the estate to testator’s widow, an error in the finding as to the amount paid to the widow on a note belonging-to the estate is unimportant, since the maker of the note, not being a party to the proceeding, is not bound by the finding.
    Error to St. Joseph; Yaple, J.
    Submitted October 8, 1901.
    Decided October 22, 1901.
    Elizabeth Gee and Rebecca M. Ennis appealed from an order of the probate court allowing the account of Joseph B. Hasbrouck and John J. Hasbrouck, as administrators with the will annexed of the estate of John Hasbrouck, deceased. The order was substantially affirmed in the circuit, and said appellants bring error.'
    Modified and affirmed.

      B. E. & L. E. Andrews and H. 0. Bliss, for appellants.

      Alfred Akey (Edward Cahill, of counsel), for appellees.
   Hooker, J.

John Hasbrouck died testate in the year 1869, possessed of considerable personal- property, but no real estate. He left a widow, Rachel, and several sons and daughters. No executor was named in his will, but two of his sons, viz., Joseph B. and John J., the defendants herein, were, appointed administrators'with the will annexed, the will having been duly admitted to probate. The estate was appraised-at $12,092.93, and claims aggregating $4,046.88 were allowed by commissioners and paid. Rachel died on December 8, 1896. The administrators having filed no account in probate court, the appellants (two daughters of John Hasbrouck, deceased) filed a bill in chancery against them for an accounting in 1898. That bill was dismissed. On January 21, 1899, at the instance of the appellants, the administrators were cited to appear in probate court and render an account, which they did. A hearing was had, and that court made an order allowing said administrators to be credited with the full amount of the principal of said estate. The appellants appealed to the circuit court, where the cause was tried by the court without a jury, and a written finding of fact and law was filed, which was a substantial affirmance of the order of the probate court. A request was made for amended findings, and the case is before us on error.

The record shows that the will contains the following provisions, viz.:

“First. I hereby give and bequeath to my beloved wife, Rachel Ann, all my property, real and personal, to have during her life, or as long as she remains my widow.
“Second. After paying all my debts and funeral expenses :
“Third. I hereby give and devise to my children, James Henry Hasbrouck, Joseph B. Hasbrouck, John Jamison Hasbrouck, Rebecca Maria Ennis, Elizabeth Traphagan Fonda, Martha Sickles Hasbrouck, and to my five grandchildren, Nelson Hasbrouck, Anna Hasbrouck, Jimmy Hasbrouck, Jessie Fonda Hasbrouck, and the youngest, name unknown, children of my son David Hasbrouck, and to their heirs and assigns, all the real and personal of my estate, both real and personal, to be divided into seven equal shares, each child, their heirs and assigns, to have and receive one share, and said five grandchildren in the right of their father one share; and in the making of the said several shares my son David Hasbrouck is to be charged an indebtedness to my estate in the sum of twelve hundred dollars, it being for money advanced by me during my lifetime for his benefit; also my son James Henry Hasbrouck is to be charged with indebtedness to my estate in the sum of five hundred dollars, being for money advanced by me to him during my lifetime.
“Fourth. After the decease of my wife, Rachel Ann Hasbrouck, I give and devise to my said children, James Henry Hasbrouck, Joseph B. Hasbrouck, John Jamison Hasbrouck, Rebecca Maria Ennis, Elizabeth Traphagan Fonda, Martha Sickles Hasbrouck, and my five grandchildren, Nelson Hasbrouck, Anna Hasbrouck, Jimmy Hasbrouck, Jessie Fonda Hasbrouck, and one, name unknown, all my estate, both real and personal, that may revert to my estate on the decease of my said wife, to be divided among them in the proportion as provided in the above bequest made direct to them.”

It is the claim of the appellees that this will gave to Rachel the right to the possession and control of all personal property of the estate after the payment of the debts. Appellants insist that it gave her a right to the income only, and that it was the duty of the administrators to retain the possession and control of the property of the estate, and to pay to the widow only the income.

The appellees claim that the proofs show that the property which came to the hands of the administrators was delivered by them to the widow, and that no portion 'or residue of it has ever come back into their possession. The appellants claim that there is no evidence in the record tending to show this.

The appellants further contend that, if the administrators lawfully turned over a portion of the estate, they should be required to account for the residue, and that the order of the circuit judge was for less than the record shows to be unaccounted for.

The appellees claim that, if it be held that the widow had no right to the principal of the estate, the same has been paid to her with full knowledge and acquiescence of the appellants, and has been used by her, and that they should be estopped from claiming that such payment was unlawful.

Upon the argument it was urged by the appellants’ counsel that we should review the merits as contained in the findings of fact. On the other hand, appellees insist that the findings must be treated as final upon all questions of fact where there is dispute in the testimony. We are of the opinion that the latter is the correct practice, and must treat the findings of fact as conclusive where supported by testimony. We find evidence tending to show that all of the property except the amount necessary to pay claims was given to Rachel, and that the appellants had knowledge of such fact.

The question of construction of the will relates to the right of the administrators to give the property into the possession of the widow. It is not a question of her absolute right to the property alone, as in the case of Cousino v. Cousino, 86 Mich. 323 (48 N. W. 1084). The will in the present case did not purport to convey to the widow an unqualified title to this property, but we think the intention to give her the custody of the property, and the expectation that she might use some of the principal, is shown by the language of the will. The testator gives her the property to have during her widowhood, and he gives to others all of the property that may revert to his estate. The former expression implies custody and right to use, and the latter suggests uncertainty as to the amount that may come back to his estate. The rule invoked by the appellants that, where personal estate is money, the one entitled to its use cannot demand its custody from the executor, is not applicable where the language of the will indicates not only a right to consume the estate if necessary, but a right to the custody as well. Our own Reports contain cases supporting this conclusion, and it is therefore unnecessary to refer to those of other courts. Proctor v. Robinson, 35 Mich. 284; Sutphen v. Ellis, Id. 446; Patterson v. Stewart, 38 Mich. 402; Glover v. Reid, 80 Mich. 228 (45 N. W. 91); MacDonald v. Hanna, 100 Mich. 412 (59 N. W. 171). Several of these cases sustain the claim that a bequest for life does not convey absolute title, but at the same time hold that it confers a right to possession and control, under wills similar to the one before us. In others such intention is clearer; while in two recent cases the opposite intention is deduced from the wills, and the right to control and use the principal at will denied. Hull v. Hull, 122 Mich. 338 (81 N. W. 89); Cole v. Cole’s Estate, 125 Mich. 655 (85 N. W. 113).

Having determined that the administrators might lawfully deliver the property to the widow, the question of estoppel need not be discussed.

There are left to consider some questions in relation to the account as rendered, for, while the court has found that all of the estate was delivered to Rachel, he held that the administrators should account for some items. In his third finding he states that in 1869 Rachel purchased a house and lot, for which the administrators paid from the estate the sum of $2,100, which sum was afterwards increased by the expenditure of $1,870 to rebuild the house, which was wrecked by a cyclone.- The record does not show any controversy over this, except as it is involved in appellants’ claim that it was a misapplication of funds, and this has been already covered by what has been said.

The court found that a claim of $300 was allowed' against the estate in favor of Joseph B. Hasbrouck, of which $200 was paid, and that there is due the administrators for services $220.92. It was also found that Rachel loaned to William Ennis $800, taking his promissory note, upon which $50 has been paid. She also loaned to John J. Hasbrouck, one of the administrators, $700, taking therefor a real-estate mortgage, no part of which has been paid. Joseph B. Hasbrouck received as rent for the premises bought by Rachel $510 before her death, and $192.90 after, and paid out $70.75 for insurance and funeral expenses. He also paid out $97.36 for necessaries for Rachel, and for taxes and repairs $88.67. Both were paid during Rachel’s life. In 1892 Rachel went to live with Joseph, and remained until her death, promising to pay for board and care. The court found the value of the services and board was $601.25.

The court determined that, upon final settlement, Joseph should be paid $100 for the claim allowed, and the item for care and maintenance, also the item for money .paid by him for debts .of Rachel before 1892, after deducting amounts received for house rent, and interest upon money loaned belonging to the estate, received before the death of Rachel; also that the administrators should be allowed the amount found due for services. They were required to account for money received since the death of Rachel for house ren^, and interest on money loaned, less the expenses of the funeral of Rachel; and it was held that the loans made to Ennis and John by Rachel, and the remaining assets of John Hasbrouck’s estate, should be accounted for in probate court.

It is contended that the item for the care of Rachel should not be a charge upon this estate, but should be presented against the estate. The charge is, in our opinion, a proper one, being equivalent to money paid for her support.

Error is assigned on the refusal of the court to find how much interest was received on the Shafer mortgage by the administrators, and what' was done with it. The court found that all of the property of the estate was given to the widow, except the money paid for the house and lot, to which she took title. This covers the Shafer mortgage.

An error of $50 in the amount of John J. Hasbrouck’s mortgage is cdnceded, and it is claimed that the sixth finding fails to credit Ennis with the full amount paid Rachel by him upon the note given her. The last is unimportant, as Ennis is not a party, and therefore not bound by the finding. As to the mortgage referred to, the sixth finding may be treated as amended by making the amount $750 instead of $700. With this modification, the order will be affirmed. Neither party will recover costs of this court.

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


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    WILCOX v. HAMMOND.
    Fraudulent Conveyances — Bills in Aid oe Execution — Burden oe Prooe.
    Under 3 Comp. Laws, § 10303, casting upon the defendants in bills in aid of execution the burden of proving the bona fide» of the transaction, a voluntary conveyance by a debtor can be sustained only by showing that he had sufficient property remaining in his hands to satisfy the claims of his creditors.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 9, 1901.
    Decided October 22, 1901.
    Creditor’s bill, and bill in aid of execution, by Alfred F. Wilcox, trustee, against George H. Hammond and Belle F. Hammond. From a decree dismissing the bill, complainant appeals.
    Reversed.

      A. F. Wilcox (Fred A. Baker, of counsel), for complainant.

      Elliott 6r. Stevenson (Fred H. Warren, of counsel), for defendants.
   Montgomery, C. J.

This is a bill filed with a double aspect. It is a judgment creditor’s bill, and also seeks to reach property conveyed by the defendant George H. Hammond to his wife, Belle F. Hammond, without consideration, and which is alleged to have had the effect to defraud creditors. The evidence shows a judgment, issue of execution, return nulla bona, the issue of a second execution, and a levy upon the property, which consists of a stock farm in the county of Washtenaw. It is conceded by the defendants that the conveyance from George H. Hammond to his wife was without consideration, and a mere gift. This conveyance was made on the 31st of October, 1893. The indebtedness upon which the judgment was rendered was incurred on June 30, 1893, and-due in one year from date. The judgment was obtained ■on November 21,1894, and execution was promptly issued, ■and was returned unsatisfied on the 30th of January, 1895*. /

The learned circuit judge was of the opinion that the evidence shows that George H.' Hammond, at the time of the conveyance to his wife, had abundant property to satisfy his creditors. We do not so read the record. It is true, it appears that there stood in the name of George H. Hammond a considerable' amount of property, but the testimony shows that this was trust property as to all but a ■one-eighth share in it, and that George H. Hammond had •disposed of a large portion of the property originally held in trust, and was under obligation to account to his cestuis que trustent for the proceeds. It also shows that, at a somewhat later date, he was indebted to the estate of his deceased father in the sum of about $50,000.

Under the statute (3 Comp. Laws, § 10203) the burden of proof was cast upon the defendant to show that the transaction of deeding this valuable property to his wife without consideration was in all respects bona fide, and this duty he could only perform by showing that, at the -time of the transfer, he had sufficient property remaining in his hands to pay his indebtedness. Mr. Hammond did not himself take the stand, and the record is barren of testimony as to the extent of his indebtedness. We think he has not sustained the burden which the statute casts upon him. See Gruner v. Brooks, 126 Mich. 465 (85 N. W. 1085).

The decree of the court below will be reversed, and a ■decree entered in this court setting aside the conveyance of the stock farm as to complainant, and providing for a receiver to take charge of the estate of George H. Hammond.

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


text:
    WHITTEMORE v. KENT SCIENTIFIC INSTITUTE.
    Corporations — Services or Orricers — Compensation—Implied Contracts.
    A member and officer of an incorporated society, which, to his knowledge, has never paid any of its officers for their services, and has no funds or means of raising any such for that purpose, cannot recover against the society for services rendered, on the theory of an implied contract to pay him therefor. So held where plaintiff, employed as curator of defendant’s museum, which was maintained in connection with the city schools, sought to hold defendant for the value of his services after being dropped from the pay roll of the board of education.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted October 9, 1901.
    Decided October 22, 1901.

      Assumpsit by Charles A. Whittemore against the Kent Scientific Institute for services rendered. From a judgment for defendant on verdict directed by the court* plaintiff brings error.
    Affirmed.

      Walker & Fitz Gerald (Myron H. Walker, of counsel), for appellant.

      Kingsley &. Wicks, for appellee.
   Montgomery, C. J.

The facts of this case are very clearly stated in the opinion of the trial court, rendered on. directing a verdict for defendant:

“ The defendant in this case has made a motion to take-the case away, from the jury, and direct a verdict for the defendant, for the reason that the circumstances of the case and the facts therein fail to indicate that the services, were rendered or received for compensation to be given by the defendant, but clearly repel the idea» that such payment was to be made or asked for. The facts in this case are as follows: The Kent Scientific Institute is an association which has been in existence since 1869. In 1885 the plaintiff became a member of the same, and was its secretary until 1889, at which time he was elected treasurer, and has remained treasurer from that time until the commencement of this suit. In 1896 he was re-elected secretary, and remained such until the commencement of this suit. In 1892, about the month of June, he was nominated by the defendant for the office of curator, and confirmed by the board of education of the city of Grand Rapids. The duties of curator were, substantially, to take care of the museum which belonged to the defendant, but which was practically used in connection with the high school of the city of Grand Rapids. In February, 1893, the board of education of the city of Grand Rapids placed the plaintiff upon its pay list at the rate of $900 a year. For the year 1893 and 1894 he was placed upon the pay list at a salary of $600 per year, which employment continued until the end of the school year 1897. From that time until the present the said plaintiff has been in office as curator, and continued as such until the present year, about May 10th. During the years 1897 and 1898 he submitted monthly bills to the board of education at the same rate that he had been getting from the board for his previous services, — $60 per month. These bills, as they were presented at the end of each month to the board of education, were not allowed by the said board of education. Plaintiff made efforts from time to time to have the board of education place him upon the pay list of its teachers, and pay'him for the work which he performed as such curator. In 1898 he spoke to Col. Fox, president of the board of directors of the defendant association, in regard to getting some pay for his services, and, as stated by the plaintiff in his testimony, for the sake of giving him pay for his services he was employed, under a special agreement, to make a catalogue of the museum, being limited in the amount to the sum of $50. It is also in evidence in the case that, in the fall of 1897, the plaintiff met Dr. Holmes, the president of the defendant association, and informed him that he had given up his key to the janitor, and that Dr. Holmes told him that he ought not to have done that, and thereupon he went and got the key of the museum, and retained possession of the same. He wrote in 1899 to Professor Volland, stating that he would like to have some arrangements made for his pay for back services and for future services, as there was no prospect of getting the same from the board of education. He also, it seems, wrote to other directors; and in December, 1899, the board took action upon the matter, declaring that they were not legally bound for any services which he had rendered.
“There is no question in the case but that the plaintiff did render services in connection with his duties as curator, but that can make no difference in this case, unless the facts and circumstances are such as imply a promise on the part of the defendant to pay for them. It will be noticed that the plaintiff, when he first became curator, in 1892, served until February, 1893, and that nothing whatever was said about pay, either by him or by any one connected with the institute, whereby he expected to charge, or did charge, the defendant for the same; that after the end of the school year 1893, when his salary was dropped by the board of education from the rate of $900 to $600 a year, without any question but that the services were worth just as much as they ever were, he made no effort to have the defendant make up any difference to him, or pay him anything in addition to what he was receiving from the board of education. During the vacations of the year, when he was on the paid list, the museum must and did need his attention, and yet he has made or makes no charge whatever for his services, nor has he done anything which would indicate in the slightest degree that he ever expected that any of the services that he performed upon the museum, or in connection therewith, were to be paid for other than by the salary which he received from the board of education.
“Now we come down to 1897, after he was dropped from the pay list. The plaintiff joined this institution in 1885. He knew its resources. He knew what its income was. He knew what the sources of income were. He knew that there were not more than from 25 to 50 members, paying the nominal sum of $2, and that the ordinary expenses of the institution took nearly all, if not quite all, of this amount for running expenses. He knew, all this time, that there was no money in the treasury, and no source from which any money could come, which could in any way be used to pay for the services of a curator. After 1897 he continued as before, but he rendered his bills to the board of education. As those bills were rejected, he made no complaint to the defendant of the same, or in any way indicated that he considered that they were liable for his services. It is true that in February, 1898, a communication was addressed to the hoard of education, at the instance of the defendant, through their committee, Dr. Holmes and Col. Fox, whereby they sought to have the plaintiff placed again upon the pay list, and speaking very highly of his services, and that the requirements of the museum were such that it needed the services of a curator about all the time. But, while this may be so, — and the evidence does not contradict that point, — still it does not seem to me that there is any circumstance in that which would indicate that there was any implied promise, or any implied contract, either on the part of the plaintiff to receive any pay for those services frpm the defendant, or on the part of the defendant to pay for the same to the plaintiff.
“The matter runs along until the date of this special agreement made for cataloguing the museum. No effort had been made by the plaintiff, or anything done by him, up to that time, which would indicate to the board that he ever did charge them with the services he had rendered, or that he expected them to pay for the same; and, when this contract was made, it was made, according to the testimony of the plaintiff himself, to quote his language:
“ ‘ I called upon. Col. Fox, as president of the board of directors, and asked for some pay for my services; and, for the sake of giving me pay for my services, I was employed to make that catalogue.’
“This clearly indicates that, while the plaintiff thought he ought to be entitled to pay for his services, .yet he did not consider that the defendant was holden for the same, and the making of this contract, in the manner and under the circumstances in which the^ plaintiff said it was made, negatives any idea of an implied contract for the services which the plaintiff claims that he rendered as curator.
“Again, there was some talk and some correspondence in reference to the museum being transferred to the State normal school at Ypsilanti; and the plaintiff, in that correspondence, holds the idea that he would be willing to work for so much, a part of which would go to reimburse him for the time and labor that he had already spent without remuneration, showing again conclusively that he was not holding this defendant liable for his pay for his services as curator.
“The only inference that can be drawn from the testimony in this case is that this plaintiff has worked in and about the museum, familiarizing himself with all the various details of the same, until he may be said to be almost, a part and parcel of it, and so considered himself; that,’ wherever the museum would go, he, as a part of the museum, would go with it. I do not mean to be understood by this that it is anything uncomplimentary to the plaintiff, but rather otherwise. It is true that, if there was any reasonable inference to be drawn from the facts in the case that there was an implied contract on the part of the defendant to pay for the services rendered, the case should be submitted to the jury upon that theory; but, taking the whole facts in the case together, there is nothing in my mind whereby any such inference can be drawn; and, while I have every sympathy with the plaintiff in the matter, and while it may be true that such services as he did render as curator should not have gone unrewarded, yet still I fail to see where there can be any liability upon the part of the defendant. As is said by Justice Champltn in the case of Covel v. Turner, 74-Mich. 408 (41 N. W. 1091), where the facts are undisputed, whether a contract is made out or not is for the court to determine; that where the testimony negatives the idea that the defendant expected to pay for the services, or that the plaintiff expected to charge the defendant for the same, there could be no agreement, either express or implied; and that the court was right in directing a verdict for the defendant.
“To sum up the entire case: Here is an association which pays no officer; has never, in its whole history, paid out its funds for the services of any officer. Here is the plaintiff, belonging to the association for 15 years, knowing all the facts and circumstances connected with it, its source of revenue, its expenses, and knowing that its financial condition expressly negatived the idea that a curator was to be paid, or any other officer. In view of these facts, and of those which I have detailed, all the facts and circumstances in the case seem to me to expressly negative the idea that there was an implied agreement on the part of the defendant to pay the plaintiff for his services, and therefore the motion must be granted.”

We think, upon this statement of facts, that the trial judge committed no error in directing a verdict for defendant. It seems perfectly apparent, from the relations of the parties, that the services were rendered without any expectation that the defendant would compensate the plaintiff. The case, in this respect, is very similar to St. Jude’s Church v. Van Denberg, 31 Mich. 287. See, also, Cicotte v. St. Anne’s Church, 60 Mich. 553 (27 N. W. 682), and Hough v. Comstock, 97 Mich. 11 (55 N. W. 1011), and cases cited.

The judgment will be affirmed, with costs.

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


text:
    LEPAN v. HALL.
    Negligence — Personal Injuries— Fellow-Servants— Foreman of Sawmill.
    The foreman of a sawmill, having authority, under the direction of the general manager, to employ and discharge workmen, and having general supervision of the mill, but performing more or less manual labor therein, is a fellow-servant of an operative employed in the mill, so that the latter cannot recover against the common employer for injuries received through the negligence of the foreman in directing the conduct of the work.
    Error to Bay; Shepard, J.
    Submitted October 9,1901.
    Decided October 22, 1901.
    Case by Benjamin Lepan against Edmund Hall for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Oscar M. Springer, for appellant.

      John E. -Kinnane and Henry C. Haller, for appellee.
   Montgomery, C. J.

Plaintiff was gang sawyer in defendant’s mill. As such, it was his duty, when cants or logs with broomed ends, containing stones and gravel, were going through the gang, to chop off the ends, that the saws might not be injured. While engaged in this work, called “ sniping,” he was hurt by having the end of a load of cants run against his leg. The assignments of error raise only the question of whether a verdict should have been directed for defendant.

Plaintiff testified that, at the time of the accident, he was standing between the rollers that are between the skidways of the band saw, engaged in the work of sniping. He testified that this work required close attention, and that he necessarily stood in this place, and with his back to the rollers which brought up the cants, depending for protection upon the fact that, unless one of the levers con. trolling the rollers should be reversed, the load of cants must stop at a certain dead roller behind him, and that, as he testified, it was his duty to reverse the lever to bring the cants beyond the dead roller, or to order it done, testifying: “It was not customary for anybody to pull up without an order from me. I so instructed the men, and the men understood it. ” This is contradicted by defendant’s witnesses, who assert that it was customary to move the cants up without plaintiff’s orders.

The testimony shows that the lever was reversed, and the load of cants which caused the injury brought up, by the order of Mr. Fraser, the mill foreman. The testimony of the tail sawyer, who reversed the lever by this order, is that, ‘ ‘ from Mr. Fraser’s order, I had an idea he did not want the cants any farther than the band-saw skidway, and that is where my intention was to put them;” and that he (witness) was not looking towards plaintiff when he pulled the lever, but looked around afterwards to see if he had the cants far enough, and then the damage was done. Mr. Fraser testified that his direction to the tail sawyer, by motion, was to stop the cants at the band-saw skidway.

Defendant’s witness Mr. Morey testified:

‘ ‘ I am in the employ of Mr. Hall, — manager and superintendent, as you might say, of the Detroit mill [the mill in question]. * * * Mr. Fraser was hired as mill foreman. * * * I think he understands every department in the mill. He is competent in every respect, — mechanically and otherwise. I have so much confidence in his ability and efficiency that he has exclusive charge of the department.”

This testimony seems to be in accord with that of plaintiff’s witnesses as to Fraser’s duties about the mill. There was some conflict in the testimony as to how much manual labor Fraser was in the habit of performing, and as to what authority he had in the matter of hiring and discharging men. Upon the latter point Mr. Morey testified:

“I always hired the engineer. The firemen, day and night, I guess I invariably hired. • Aside from that, most of the men in the mill probably were hired by Mr. Fraser, after receiving instructions from me. I instructed him when to hire the men, and when to make arrangements when we should start, and also what wages generally to pay. If any changes in the wages were made, he consulted me. I have talked with Mr. Fraser about what sort of men he should hire for the different places in the mill, as to character or efficiency. It was always understood that we were to hire the best men we could get, and to try to have the reputation of paying wages that would enable him to get -good, efficient men, when it was practicable. That was always the instruction that Mr. Fraser had with reference to hiring men, so far as was necessary.”

One of plaintiff’s witnesses testified to statements made to him by Mr. Morey, when declining to interfere with Fraser’s refusal to employ the witness, that he (Morey) had nothing to do with the mill, and that Mr. Fraser had full charge of it. Plaintiff testified that Mr. Fraser claimed to him that he had full power to hire and discharge any man in the mill.

Defendant claims that the undisputed testimony shows that Fraser was acting as plaintiff’s fellow-servant, at least in giving the order in question. The mill consisted of a lumber mill, proper, a shingle mill, a lath mill, and the defendant, also, as a part of his operations, conducted a salt mill. The testimony shows that one Connors was foreman of the shingle mill, with similar powers to those exercised by Fraser in the sawmill; one McIntyre was foreman over the lath mill; and one Gillis was foreman over the salt mill. All of these men were under the supervision of Mr. Morey, defendant’s superintendent. We think that, under the undisputed testimony, the case falls within our former holdings, and that Fraser must be held to have been a fellow-servant of the plaintiff. It is to be noted that the alleged negligence of Fraser was not an act which it is the master’s duty to perform. No complaint can be made that a safe place to work was not furnished to the workmen in the mill. Fraser’s order related to the mere conduct of the work, and in the giving of that order he did not occupy the position of the master, within the holdings of this court. See Schroeder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354); Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Andre v. Elevator Co., 117 Mich. 560 (76 N. W. 86); Findlay v. Foundry Co., 108 Mich. 286 (66 N. W. 50).

It is very doubtful whether, in any view, it could be said that the order actually given by Fraser was the cause of the injury to the plaintiff. If the testimony of the tail sawyer and of Fraser be credited, it would appear that had the order, as given, been obeyed by the tail sawyer, no injury would have happened to the plaintiff. But, in the view we take of the relation of Fraser to the plaintiff, it is not necessary to determine the case upon this ground.

The judgment will be reversed, and a new trial ordered.

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


author: Hooker, J.

text:
    SULLIVAN v. PARKINSON.
    1. Fraudulent Conveyances —Consideration—Husband and Wife.
    A homestead was purchased by a husband and wife in the name of the husband, the wife furnishing the greater part of the consideration. Five years later he conveyed the property to his wife, and four years after that she unwillingly, and on the promise that she should have it again, deeded it back to him. Eight years afterwards he gave her a mortgage on the property, and four ye ars later, just before his death, conveyed it to her absolutely. Held, that the mortgage and deed to the wife were not mere voluntary conveyances, and that, the property not exceeding in value the amount of her claim and the homestead interest, it could not be subjected to the husband’s debts.
    3. Same — Tenancy in Common.
    Where a father and daughter purchased property as tenants in common, with an agreement that the survivor was to take the property, and quitclaim deeds were exchanged, and the daughter destroyed hers on the death of her father, and had his recorded, the father’s interest was subject to his debts.
    Appeal from Wayne; Frazer, J.
    Submitted October 9, 1901.
    Decided October 22, 1901.
    Bill by Thomas F. Sullivan, trustee, against Jane Parkinson, Ida J. Parkinson, and Charles A. Parkinson, administrator of the estate of William Parkinson, deceased, to reach property alleged to have been conveyed in fraud of creditors. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Keena & Lightner and John Considine, Jr., for complainant.

      Sidney T. Miller and James Oosslett Smith, for defendants.
   Hooker, J.

In 1886 Considine, Sullivan, and Parkin-

son became sureties for Jeremiah Connor upon an executor’s bond for $5,000 in the estate of Gallagher. Upon Connor’s final accounting he was found indebted to the estate in the sum of $3,943.76, and, upon appeal by the legal representatives of Sullivan (he being dead), the judgment in favor of the Gallagher estate was affirmed in the circuit court and in this court. In re Gallagher's Estate, 120 Mich. 365 (79 N. W. 570). In a subsequent action upon the bond a judgment was rendered against the obligors for $4,454.25 damages and $61.60 costs. This judgment was taken in form against Connor and Considine, both Sullivan and Parkinson having died. The complainant, as trustee for Considine and the estate of Sullivan, purchased this judgment for the sum of $4,400; the purchase price being furnished one-half by the Sullivan estate, and one-half by Considine. In an effort to obtain contribution from the Parkinson estate, the complainant procured the allowance by the probate court of a claim for $1,466 on March 28, 1900; and this bill is filed to enforce payment against property the title to which at one time stood in Parkinson, but which was conveyed by him to other defendants. Complainant claims that these were voluntary conveyances, and therefore void as against creditors. One of these parcels was Parkinson’s homestead, worth about $7,000, which he conveyed to his wife a short time before his death; the other, an undivided half interest held in common with his daughter, to whom he executed a deed 'designed to give her rights of survh vorship. In the circuit court the bill was dismissed.

The evidence satisfies us that for many years Parkinson was allowed by his wife to receive and appropriate the earnings of her property. The homestead was purchased from one Robinson on September 17,1875, for $7,000. In payment therefor Mrs. Parkinson and her son deeded property in which she had at least a life estate, for an agreed price of $4,000. A mortgage of $2,500 was given back to Robinson upon the homestead. Where the remaining $500 came from, does not appear. The title was taken in Mr. Parkinson’s name. On December 9, 1880, he deeded it to his wife, the deed being recorded July 8, 1884; and on October 11, 1884, she deeded it back to him. In 1892 Parkinson gave his wife a note and mortgage upon the premises for $7,000. This was recorded October 5, 1896. On October 29, 1896, Parkinson met with an accident, which caused his death soon after; and on the same day he executed a deed of the premises to Mrs. Parkinson, and at the same time she executed a discharge of the mortgage, and both were recorded on October 30, 1896.

The testimony convinces us that Mrs. Parkinson’s property paid for the homestead, and that she did not willingly part with her title'to it after her husband deeded it to her; having-yielded to his importunity for the sake of peace, and upon the repeated promise that she should have it again. He recognized hér claim by mortgaging it in 1892, and again by the deed which he made in October, 1896. We think neither of these instruments can be called a voluntary conveyance; and the fact that the security was not recorded should not postpone her to the claims of other creditors who had not meantime acquired' liens upon the property. Her claim and the homestead interest, which might be the subject of gift, exceeded the value of the property which she received. Dull v. Merrill, 69 Mich. 49 (36 N. W. 677).

The other parcel of land was purchased by Parkinson and his daughter, and was conveyed to them by a deed which made them tenants in common. Each owned an undivided half. At the time of the purchase he told his daughter that, if she survived him, she should have the place, and afterwards a quitclaim deed was made by each to the other, and they were deposited in his secretary, to which both had access. After his death her deed was destroyed, and his deed to her was recorded. The place was purchased subject to a mortgage of upwards of $2,000, u pon which she has made payments of interest and principal. We are of the opinion that Mr. Parkinson’s interest in these premises should be subjected to the complainant’s claim, after deducting therefrom such sums as Ida Parkinson has expended for its benefit in the way of reduction of the mortgage, interest, taxes, insurance, and repairs, less its share of the rents received by her, and subject to its share of the mortgage still unpaid.

A decree in conformity to this opinion, wherein the amount of complainant’s claim will be settled, may be taken, with costs against Ida Parkinson, and the cause remanded for further proceedings. Defendant Jane Parkinson will recover her costs against the complainant.

Montgomeey, C. J., Mooee and Long, JJ., concurred. Geant, J., did not sit.


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    ALLEN v. COWLEY.
    1. Taxation — Decree of Sale — Validity—Sessions of Court— Leave to File Objections to Tax.
    The hearing of the auditor general’s petition in a tax proceeding was set for October 15th, on which day an adjournment was had to the 29th. Court was in session on that day and the four following days, when it adjourned sine die; and a decree of sale was subsequently entered as of October 31st, the day on which tax matters were heard. Held, a sufficient compliance with 1 Comp. Laws, §3889, giving landowners the right to apply for leave to file objections to the tax at any time within the “first five days after the day fixed” for hearing the auditor’s petition.
    2. Same — Trespassers—Timber Sold by State.
    A trespasser cutting timber on lands the title to which is in the State under a valid tax sale, and suiDg to recover the timber from a purchaser of the same from the State under 1 Comp. Laws, § 3936, will not be heard to object to the regularity of such sale of the timber.

      Error to Alcona; Connine, J.
    Submitted October 10, 1901.
    Decided October 22, 1901.
    Replevin by Thomas T. Allen against Helen C. Cowley. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      W. H. Simpson, for appellant.

      Fred A. Beede (DeVere Hall, of counsel), for appellee.
   Hooker, J.

The plaintiff cut and claims to own certain logs and bark which grew upon land described in the declaration. It was afterwards taken from his possession by the defendant under a claim of ownership — First, as purchaser at a sale by the sheriff, under an auditor general’s warrant; second, under a deed from one Ida Farnham, who is alleged to have owned the premises. Thereupon the plaintiff replevied .the logs and bark. The evidence offered upon the trial showed that the property sold by the sheriff consisted of 1,764 logs. The jury found a verdict for the plaintiff for all of the property except the 1,764 logs, and for these gave a verdict for the defendant, from which the plaintiff has appealed. His brief states that the questions are three, viz.:

“1. Were the proceedings had by the sheriff in making the sale of the 1,764 logs under the auditor general’s warrant void ?
“2. Were the proceedings had in the circuit court of the county of Alcona, in chancery, decreeing the sale of the lands for the taxes of 1893, void ?
“3. Should the circuit judge have granted a new trial upon any of the reasons assigned in the motion for a new trial ?”

The learned circuit judge held the proceedings upon the tax of 1893 valid, and those for the taxes of other years void. We may therefore confine our inquiry to the proceedings for the tax of that year.

Did the court err in holding the proceedings of the circuit court valid in decreeing the sale of the land for nonpayment of the tax of 1893 ? The testimony shows that the order fixed the 15th day of October, 1895, as the day for hearing the auditor general’s petition. Upon that day court was opened, and adjourned to October 29th upon the written order of the judge, according to the statute. Court was in session October 29th, 30th, and 31st, on which days tax matters were heard by Judge Kelley, of another circuit. Court continued in session November 1st and 2d, when it adjourned sine die. On the 5th of November the decree was filed as of the 31st day of October. Nothing indicates that objections were filed during the intervening time. Counsel contends that the landowner had a right to file objections within the first five days after October 15th, and that after the hearing on the 31st there was no opportunity to file objections. We are of the opinion that there was ample opportunity to file objections, under the decision in the case of Miller v. Brown, 122 Mich. 147 (80 N. W. 999). Had the decree been entered on October 31st, as it purports to have been, the court would have promptly set it aside upon a proper showing that objections had been seasonably made. In fact, it was not entered until the 5th, as the filing shows, it being filed nunc pro tunc as of the day of hearing. On the face of the testimony the court was not in error in sustaining the tax proceedings for 1893, and he might have added that title to the land was in the State.

The title to the land being in the State, it was the lawful owner of the timber thereon, and the plaintiff was a trespasser in cutting it. It did not become his by such cutting; nor was the original owner able to convey title to him, because she had no title, it having been devested by the sale for taxes, whereby her interest vested in the State absolutely after the expiration of the period for redemption. The defendant purchased and paid for the title of the State through proceedings intended to conform to a statute authorizing it. 1 Comp. Laws, § 3936. The plaintiff attacks this purchase upon the ground that the sale did not conform to the statute — First, because the notice posted was a notice of eight days only, and the notice of ■adjournment did not state the hour or place of sale; second, because the sale was not made within sight of the timber sold. We incline to the opinion that the plaintiff cannot question the regularity of this sale. The State has received its pay for the timber, and there is nothing to indicate that it questions the validity of the sale. Being good between the parties, plaintiff, a trespasser, cannot complain.

The only remaining question relates to the denial of a new trial. In this, we think, the court did not err.

The judgment is affirmed.

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


author: Grant, J.

text:
    LEE v. CITY OF PORT HURON.
    1. Bicycles — Status.
    While a bicycle is a vehicle, it is not to be classed, in all its methods of use, with vehicles propelled by animal or mechanical power.

    2. Same — Use on Sidewalks.
    The riding of a bicycle upon a sidewalk is not an unlawful act at the common law.
    3. Same — Authority op Municipality.
    A municipal corporation, vested by its charter with general ' control over the streets and sidewalks, has authority to permit and regulate the use of the walks by bicyclists.

      4. Same — Liability por Injuries to Rider.
    The statutory requirement that municipalities keep their sidewalks in a condition reasonably safe and fit for travel has reference only to the ordinary uses for which sidewalks are constructed, and does not extend to a use of the same by bicyclists; but the iact that a person injured by reason of a breach of such duty on the part of a municipality was at the time riding a bicycle will not preclude him from recovering his damages.
    Case made from St. Clair; Whipple, J.
    Submitted October 11, 1901.
    Decided October 22, 1901.
    Case by Anna Lee against the city of Port Huron for personal injuries. There was a judgment for plaintiff, and defendant assigns error.
    Affirmed.
    The following are the stipulated facts; Plaintiff was injured while riding on her bicycle upon a sidewalk of the defendant city. The city passed an ordinance licensing bicyclists to ride upon the sidewalks of certain streets under certain restrictions, they first paying a fee and procuring a license therefor. Plaintiff had complied with this ordinance, and was in the exercise of due care when the accident occurred. The sidewalk was defective, and the city had notice of such defect in time to repair it. The stipulated facts do not state what the defect was. The declaration charges that plaintiff, in turning to the right to allow a footman to pass, her bicycle went near the end of a plank which ran crosswise of the walk, and was so rotten and loose that it tipped up, and caused her to fall. The court directed a verdict for the plaintiff, the stipulated amount of damages being $100.

      Lincoln Avery (Beach & Benedict, of counsel), for appellant.

      H. A. Babcock, for appellee.

       For an extensive note on bicycle law, see Taylor v. Traction Co., (Pa.) 47 L. R. A. 289.

   Grant, J.

(after stating the facts). The statute (section 3441, 1 Comp. Laws) requires sidewalks to be kept in reasonable repair, and in a condition reasonably safe and fit for travel. A failure on the part of a municipality to keep them in such repair entails upon it liability for injuries sustained by the traveler who is in the exercise of due care. While a bicycle is a vehicle, it is not one to be classed, in all its methods of use, with other vehicles drawn by animal or mechanical power. This distinction is clearly recognized and pointed out* in Murfin v. Plank-Road Co., 113 Mich. 675 (71 N. W. 1108, 38 L. R. A. 198, 67 Am. St. Rep. 489). To ride a bicycle upon a sidewalk may not be a nuisance, where to drive a horse and wagon upon it would. A baby carriage is a vehicle, but is not a nuisance upon either streets or sidewalks. The riding of a bicycle upon a sidewalk is not an unlawful act at the common law. , Counsel for defendant cite Mercer v. Corbin, 117 Ind. 450 (20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76), cited also in 4 Am. & Eng. Enc. Law (2d Ed.), 20, in support of the proposition that it is. The decision does not sustain that contention, but is based upon a statute making it “unlawful for any person to ride or drive upon the sidewalks of any town or village, or upon any similar sidewalk for the use of foot passengers by the side of any public highway, unless in the necessary act of crossing the same.”

One riding a bicycle occupies no more space than he would in walking. With proper care and proper warning, there is no danger of collision with foot passengers, or any others lawfully using the sidewalks. The charter of the defendant expressly confers upon the common council the entire control over the streets and sidewalks, and the power “to regulate the use thereof.” What would be a nuisance upon a sidewalk continually crowded with foot passengers would not be a nuisance upon a sidewalk where there was little travel. • The bicycle has become almost a necessity for the use of workmen, clerks, and others in going to. and from their places of work. Where the streets are unpaved, they are oftentimes impassable for the bicycle, and it is entirely proper for municipalities to permit and regulate the use of the sidewalks in such cases. Under the broad power conferred by the charter upon the defendant, it is clothed with the right to permit this use of the sidewalks. Such use is sustained in Lechner v. Vil lage of Newark, 44 N. Y. Supp. 556, and Purple v. Inhabitants of Greenfield, 138 Mass. 1.

It should be borne in mind that in this decision we carry the doctrine no further than was done in Leslie v. City of Grand Rapids, 120 Mich. 28 (78 N. W. 885), where we held that the measure of duty imposed by the statute upon municipalities included ordinary vehicles, and did not require that the streets should be so constructed and repaired as to include safety to bicycles. It was held sufficient in that case if the highway was in reasonable repair for the passing of ordinary vehicles, though it might be dangerous for bicycles. So, in this case, we must assume that the sidewalk was not in reasonable repair for the ordinary uses for which sidewalks were constructed. There might be a defect in a sidewalk similar to the defect in a street in that case, which would involve no danger to a traveler on foot, but might involve danger to one riding a bicycle over it. If a walk were constructed of planks running lengthwise, the planks might be so far apart as to permit the tire of a wheel to be caught in the openings, and cause the rider to fall, while it would be entirely safe for pedestrians. Or there might be a depression in a cement walk, entirely safe for pedestrians, but unsafe for bicyclists. Such conditions would be controlled by Leslie v. City of Grand Rapids.

Judgment affirmed.

The other Justices concurred.


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    CITY OF DETROIT v. HEINEMAN.
    Condemnation PRoqEEDiNas — Jurors—Competency—Prior Service.-
    1 Comp. Laws, § 3397, provides for the number, qualifications, and method of drawing jurors in condemnation proceedings instituted by a city or village, and that “the practice and proceedings "* * * relative to impaneling, summoning, and excusing jurors” shall be the same as in the circuit courts in ordinary cases. By Act No. 204, Pub. Acts 1893, no person is qualified to serve as a juror in the Wayne circuit court who has acted as such in a court of record during the preceding three years. Held, that a person is not disqualified to sit as a juror in a street-opening case in said county because he has served in a similar case within three years previously; the words “practice and proceedings” not referring to the qualification of jurors, but solely to the manner of impaneling, summoning, and excusing them.
    Appeal from recorder’s court of Detroit; Phelan, J.
    Submitted October 11, 1901.
    Decided October 22, 1901.
    Petition by the city of Detroit against David E. Heine-man and Joseph M. Weiss to condemn land for a public alley. From a judgment for petitioner, respondents appeal.
    Affirmed.
    This is a proceeding under chapter 90, 1 Comp, £aws, to condemn land for a public alley. A jury was duly impaneled under section 6 (1 Comp. Laws, § 3397), proofs were taken, and nominal damages awarded. Some of the jurors had served in street-opening cases within three years previously, and were challenged for that reason, but the challenge was overruled.

      David H. Heineman, for appellants.

      A. B. Hall (T. H. Tarsney, of counsel), for appellee.
   Grant, J.

Were these jurors disqualified? is the sole question presented. Section 6, after providing the number, qualifications, and method of drawing the jurors, provides:

“The practice and proceedings under this act, except as herein provided, relative to impaneling, summoning, and excusing jurors and talesmen, and imposing penalties or fines upon them for non-attendance, shall be the same as the practice and proceedings of the circuit courts of the State relative to petit jurors in civil cases in such courts, except that peremptory challenges shall not be allowed.”

Section 5 of the law in regard to jurors in the Wayne circuit court contains the following:

“No person shall be returned or shall be qualified to be or become one of a panel of petit or grand jurors in any court of record in Wayne county who, within three years prior thereto, has been or acted as a member of a panel of petit or grand jurors, whether summoned on the original panel or added thereto as talesman, in a court of record, except as otherwise provided in section twenty-one; and it shall be the duty of each of said courts, on the return day of the venire, to inquire of the jurors summoned if any of them have served as jurors during the preceding three years, and to excuse from service any jurors who have so served.” Act No. 204, Pub. Acts 1893.

Section 6 expressly fixes the qualifications of jurors in these condemnation proceedings, and contains no such restrictions as are found in the- other act.- The words “practice and proceedings” do not refer to the qualification of jurors, but solely to the manner of “impaneling, summoning, and excusing” them.

The challenge was properly overruled, and the judgment is affirmed.

The other Justices concurred.


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    GARRISON v. HECKER.
    1. Estates in Land — Lire Tenant — Sale of Pee — Constitutional Law.
    8 Comp. Laws, § 9281 et seq., as amended by Act No. 55, Pub. Acts 1901, authorizing the chancery court to order the sale in fee of lands devised for life, on the petition of the life tenant, and a showing that the rights of the parties would otherwise be jeopardized, is valid legislation.
    2. Same — Notice—Substituted Service — Jurisdiction.
    Under such statute, land devised to testator’s son for life, with remainder in fee to the latter’s heirs, may be ordered sold for the purpose of preserving the estate, on petition of the son showing the necessity therefor, notice of such petition having been published in accordance with the statute, and the heirs presumptive of the life tenant being in court, though such heirs may not be the ones eventually entitled to take, by reason either of the subsequent birth of other heirs or their own prior death; since (as to the former contingency) the heirs presumptive may be treated as representing any after-born heirs so entitled, and (as to the latter), the proceeding being in rein, any persons in esse having contingent interests would be bound by the substituted service by publication.
    Appeal from Wayne; Donovan, J.
    Submitted October 1, 1901.
    Decided October 23, 1901.
    Petition by John William Garrison for an order requiring Frank J. Hecker to pay the price of real estate sold under order of court. From a decree for petitioner, defendant appeals.
    Affirmed.

      William E. Walsh, for petitioner.

      Walker & Spalding and I. T. Cowles (H. E. Spalding, of counsel), for defendant.
   Hooker, J.

John J. Garrison’s will, admitted to probate in 1876, devised the real estate in question to his son John William Garrison for life, remainder in fee to his (John William Garrison’s) heirs. John William Garrison is living, and has a wife and two minor children, all living. He has also living brothers and sisters, all adults. Proceedings have been taken under a petition filed May 21, 1901, by the life tenant for the sale of the premises in fee under 3 Comp. Laws, §§ 9234-9242, inclusive, as amended by an act passed April 9, 1901, which was given immediate effect. Act No. 55, Pub. Acts 1901. The material portions of this act in this connection are sections 1 and 2, which read as follows (the Italicized portion having been introduced by the amendatory act mentioned):

“Section 1. Whenever any person shall be seised or possessed of any lands, tenements, or hereditaments devised to such person for life with or without power of appointment by will, or of any lands, tenements, or hereditaments devised to such person in trust without power of sale, the circuit court in chancery for the county where such property is situated may, on the petition of such person, order that such land, tenements, and hereditaments be sold under the direction of the court, whenever, by a proper showing by witnesses produced before the court,it shall satisfactorily appear that the rights of the interested parties will otherwise be jeopardized.
“Sec. 2. Every conveyance made by the person so seised pursuant to such order of said court shall be as good and effectual in law, and shall convey the same title, as if the same were made by such person being seised of the title in fee to such lands, tenements, and hereditaments.”

The minor children of John W. Garrison were served with notice of the petition for the sale, and appeared and answered through guardian ad litem, and the statutory publication was made. The widow filed a consent to the proposed order. The minors, aged, respectively, 17 and 13 years, submitted their rights and interests to the protection of the court. No one appeared upon the hearing in opposition to the application. There was testimony showing prima facie that the buildings upon the property (which is in Detroit) are old and badly out of repair, and, being within the fire limits, cannot be repaired lawfully; that the life tenant has no means with which to replace the buildings with others, and that the income is small in proportion to the value of the.property; that the life tenant has been unable to pay the taxes since 1894, and that accumulated back taxes, for which the property has been sold to the city, are about $13,000; and that application for these tax titles has been made by others, and petitioner has been notified by the city that they would be sold unless the premises should be redeemed before the 1st of July last. An order was made June 33, 1901, whereby John William Garrison was authorized and empowered to sell the fee of the real estate in question in one sale, or in parcels from time to time, subject to report and confirmation by the court; the proceeds to be paid to the Detroit Trust Company, which was appointed trustee for the purpose of receiving, keeping, and disposing of the same in accordance with the court’s direction.

On July 3, 1901, John W. Garrison filed a report of sale, showing that he had made an agreement to sell to Frank J. Hecker, subject to confirmation by the court, the fee of the property, free and clear from all liens, levies, and incumbrances, for $138,000, and that there were tiien outstanding city tax leases on the property on which there was due $11,838.93, which should be paid in order that the sale might be consummated. The report and sale were confirmed, and Garrison ordered to give to Hecker a deed in fee on his compliance with the agreement of sale, and that the taxes be paid by the Detroit Trust Company from the proceeds. Other provisions of this order are unimportant. The date of this order does not appear in the record, except that it was in July, 1901.

On the 10th of July, 1901, Garrison filed another petition, reciting the facts hereinbefore stated, and alleging the order of confirmation to have been made on July 3, 1901, and that on July 3, 1901, a deed was tendered to Hecker in accordance with the order of confirmation, and a request made that he pay the said sum of $138,000 to the Detroit Trust Company, which he refused to do. The petition prays that Hecker be required by an order of the court to pay the same. Notice of the hearing of this petition was served on Hecker. He answered, admitting the purchase, and alleging a willingness to complete the purchase, provided he can acquire a perfect and indefeasible title; that he is advised that the proceedings are invalid, null, and void, and ineffectual to devest the heirs of John W. Garrison of their rights in the premises,, and alleges that the deed would not, therefore, vest in him a perfect and indefeasible title in fee simple, and further that the act under which the proceedings were taken and sale made is unconstitutional, null, and void. A hearing was had, and the court made an order in accordance with the prayer of the petition. It contained an adjudication that a “good and legal estate of possession and inheritance will vest- in said Hecker upon payment of the money.” The cause comes before this court on appeal, a case made reciting the testimony; it being certified by the trial judge that the other proceedings are substantially contained in the petition for leave to sell.

The question raised is whether the court had any jurisdiction whatever in the original proceedings. The statute cited is one designed to provide for a partition, substantially. It provides for a sale and the proper disposition of the proceeds. The power of the legislature to pass laws for the judicial sale of property for the benefit of those having different interests therein is upheld by many cases. It is an everyday practice to sell the interests of minors and incompetent persons for their benefit, and no good reason is suggested for denying to courts of chancery the power to make such sales, though it involve a partition, or fits equivalent. The power under this statute extends to a partition of different estates in property. Phillips v. Johnson, 14 B. Mon. 172. See 17 Am. & Eng. Enc. Law, 690, note 4. In the present case the children of John W. Garrison are before the court. At present they represent the estate of inheritance, and, while the vicissitudes of life may change the ownership of the remainder, it is the prevailing rule that persons not in esse will be bound by the partition; those before the court being treated as representative of such persons as may, by reason of subsequently coming into being, acquire an interest in the property. See 17 Am. & Eng. Enc. Law, 728, and note; Monarque v. Monarque, 8 Abb. N. C. 102, 80 N. Y. 320. We do not overlook the fact that persons now in esse, other than the minors, may become entitled to this remainder in the event of John W. Garrison’s death without issue him surviving. Section 4 of the act provides for a substituted service by publication, and this was given. We think this a constitutional and valid procedure in cases in rem. 17 Am. & Eng. Enc. Law, 727, 728, and notes; Moore v. Wayne Circuit Judge, 55 Mich. 81 (20 N. W. 801).

The decree of the circuit court is affirmed.

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


author: Per Curiam.

text:
    FISHER v. WAYNE CIRCUIT JUDGE.
    Pleading — Withdrawing Demurrer — Costs—Mandamus.
    Where defendant entered a plea in bar after interposing a demurrer, and-the court refused to hear the demurrer on the ground that it had been waived by filing the plea, such refusal amounted to leave to withdraw the demurrer; and, such court being of opinion that no costs should be allowed to plaintiff, a mandamus to compel the rendition of a judgment overruling the demurrer, with the incident costs, will not be granted.

      Mandamus by Edward Eisher to compel Elavius L. Brooke, circuit judge of Wayne county, to enter judgment on a defnurrer.
    Submitted July 19,1901.
    Writ denied November 4, 1901.

      8. E. Engle, for relator.

      Brennan, Donnelly & Van De Mark, Earl D. Babst, and Otto Kirchner, for respondent.
   Per Curiam.

Five.separate suits were brought against John Scott and others, based upon negligence in constructing a certain building in Detroit, which collapsed. S. E. Engle was attorney for the plaintiffs in the five suits. The defendants interposed demurrers in each case. One case was heard in the court below, and the demurrer sustained. That decision was reversed in this court, and the case remanded. McBride v. Scott, 125 Mich. 517 (84 N. W. 1079). Pending the decision of that case in this court, the other cases remained in statu quo. After the decision was rendered in this court, and a motion for rehearing denied, the relator here and plaintiff in one of the other suits made a motion for judgment upon demurrer. Meanwhile, and before that motion and similar motions in the other cases were heard, the defendants interposed pleas in bar. ' The attorney for relator insists that he is entitled to. judgment overrifling the demurrers in the other cases, and to costs incident thereto.

By interposing the pleas, the defendants waived the demurrers. Cicotte v. County of Wayne, 44 Mich. 173 (6 N. W. 336); 6 Enc. Pl. & Prac. 380, and authorities there cited. While the defendants could not withdraw their demurrer and plead over without leave of the court, the refusal of the court to hear the demurrer upon the ground that a plea had been filed and the demurrer thereby withdrawn was tantamount to the granting of such leave nunc pro tunc; and as it appears that no costs were awarded, and the respondent has returned that in his discretion no costs should be allowed, and would not have been allowed had they been asked, we think the mandamus should be denied, without costs.


author: Moore, J.

text:
    LOVE v. JUDGE OF RECORDER’S COURT OF DETROIT.
    1. Municipal Corporations — Use ok Public Places — Regulation — Freedom of Speech — Public Addresses.
    The power conferred on the common council of Detroit by the charter, to control and regulate the manner in which the streets, alleys, and public grounds and spaces within the city shall be used and enjoyed, includes the power to regulate the use of such places for the making of public addresses.
    2. Same — Ordinances—Reasonableness.
    An ordinance forbidding the making of any public address in any public place within a half-mile circle of the city hall, without first obtaining a permit from the mayor, is a valid exercise of such power.

      Mandamus by Charles E. Love, assistant corporation counsel of the city of Detroit, to compel James Phelan, judge of the recorder’s court of said city, to entertain a complaint for the violation of a city ordinance.
    Submitted October 8, 1901.
    Writ granted November 4, 1901.

      Timothy E. Tarsney and Charles E. Love, for relator.

      James H. Pound, for respondent.
   Moore, J.

This is a proceeding to compel the respondent to entertain a prosecution against one William Allen.

There is an ordinance in the city of Detroit the material portions of which read as follows:

“An ordinance to regulate the use of public streets, avenues, parks, grounds, and other public places in the city of Detroit.
“It is hereby Ordained by the People of the City of Detroit:
“Section 1. No person shall, in or upon any of the public streets, avenues, parks, grounds, or other public places within the one-half mile circle from the city hall, make any public address, beat drums, blow horns, or expose for sale any goods, wares, or merchandise, erect or maintain any booth, stand, tent, or apparatus, except in accordance with á permit from the mayor, such permit to designate the time and place when said person or persons may avail themselves of the privileges herein granted. And no permit shall be granted to any person or persons for more than one night in each week.”

After this ordinance was passed, a complaint was made, the essential part of which is as follows:

“ William Rutledge, being first duly sworn, makes complaint and says that at the city of Detroit aforesaid, on the 13th day of August, A. D. 1901, within the corporate limits of the city, in a public place known as the ‘ Campus Martius,’ being within the one-half mile circle from the city hall, one William Allen did then and there unlawfully and willfully make a public address in the aforementioned public place without first having obtained a permit therefor from the mayor of the city of Detroit, and did, by reason of making such address, gather or cause to gather a large crowd of people, to wit, one hundred people or thereabouts, to the evil example of all others in the like cause offending, and contrary to the ordinances of said city in such,case made and provided.”

This complaint was presented to the recorder, and, when Mr. Allen was arraigned, the recorder, deeming the ordinance to be invalid, declined to allow the case to proceed, and discharged the accused.

Two questions call for discussion: First. Does the charter confer upon the common council power to pass the ordinance? Second. Is the ordinance a reasonable and valid exercise of such power ?

Section 34, chap. 7, Charter 1893, reads in part as follows:

“Said council shall have power to provide for cleaning the highways, streets, avenues, lanes, alleys, public gi’ounds and squares, crosswalks, and sidewalks in said city, of dirt. * * * It shall further have power to prohibit and prevent incumbering or obstructing streets, lanes, alleys, crosswalks, sidewalks, and all public grounds and spaces with vehicles, animals, boxes, signs, barrels, posts, buildings, dirt, stones, brick, and all other materials or things whatsoever, of every kind and nature, and to remove the same therefrom; * * * also to control, prescribe, and regulate the manner in which the highways, streets, avenues, lanes, alleys, and public grounds and spaces within said city shall be used and enjoyed.”

Section 35 of the same chapter provides that:

“The council may regulate the ringing of bells and the blowing of steam whistles, and may provide for the prohibition and prevention of any riot, rout, disorderly noise, disturbance, or assemblage, or the crying of any goods in the streets or elsewhere in said city.”

It is conceded that the Campus Martius is an open paved space nearly front of the city hall, where many of the principal streets of the city join each other. A portion of it is occupied by the soldiers’ monument, and nearly all of the street-car lines in the city pass upon one or the other of its borders. Ever since the city has existed it has been a public space within the city. It is difficult to see how power over this space could be more explicitly conferred upon the council than by the language used in the charter giving to it the power “to control, prescribe, and regulate the manner in which the highways, streets, avenues, lanes, alleys, and public grounds and spaces within said city shall be used and enjoyed.”

We then come to the second question, Is the ordinance a reasonable and valid exercise of the power conferred ? No question is raised as to the manner of the passage of the ordinance, but its reasonableness is questioned. It is insisted by counsel that this phase of the controversy is controlled by what is known as the “Frazee Case” (In re Frazee, 63 Mich. 396 [30 N. W. 72, 6 Am. St. Rep. 310]). We quote from the brief of counsel:

“ I submit that no good reason can be shown why this court should overrule the Frazee Case, nor the declarations therein contained for personal liberty. Nearly a . generation has passed since this court made the widespread promulgation for personal liberty embodied in the unanimous opinion of this court in the Frazee Case. It has become a landmark among the opinions of this court, and has been more frequently followed and quoted with approbation than any decision in favor of personal liberty it ever rendered. This is my judgment. It has in great measure been the basic stone upon which the Wisconsin case, the Illinois, Kansas, North Carolina, Maryland, and New York cases, rest. While not so famous as the Sommersett Case, 20 How. St. Tr. 1, of Lord Mansfield, who declared no man could breathe the air of Great Britain but his shackles fell from him instantaneously; that he was no longer bond, but free; that famous decision which will live, and justly so, as long as history does, as the particular glory of Lord Mansfield’s judicial diadem, — the Frazee Case is along the same lines. Courts are not organized to aid in repressing innocent liberty, but to give liberty. It is their blessed privilege to make men more free as they become able to enjoy their freedom. Let it not be said that in Detroit a citizen has not the liberty to preach the gospel if he does so to the inconvenience of no-public travel.”

We think, in his application of the Frazee Case to the case at bar, counsel has misunderstood the former case. The question in that case was, Who may travel in the highways ? The question in this case is, Who may occupy • the public spaces in the city, — some individual who happens to get there first, or shall-all the citizens of Detroit have equal rights there? and what shall be the manner of the occupancy ? It is evident that no considerable portion of the citizens of a great city like Detroit could occupy this limited space at one time; nor could all of the preachers, teachers; and public speakers in that city who might think they had a message to deliver to the people, with the audiences they would naturally draw, find room at one time in this public space, without rendering it useless as a place across which the public might travel. Under such circumstances, what can be more reasonable than to lodge the power of deciding when and where one may occupy this public space in one having sufficient intelligence and so possessing the confidence of his fellow citizens that they have placed him at the head of the municipal government? The court in the Frazee Case had no trouble in seeing tbe difference between tbe use of a street by a moving procession and a stationary assemblage •of people, as is shown by the following language used by the court:

“ It is not unusual to confine noisy doings to such hours' of the day and night as will not grossly disturb the quiet rest of sleep. It has been held, with reason, that a moving crowd may be less obnoxious than a stationary one; and this was said, in substance, when a defendant, who drew crowds to his windows by libelous pictures, and thereby blocked up a highway, undertook to justify himself by the processions of the judges and lord mayor. The remarks of Mr. Justice Park on the subject of crowds which may or may not be nuisances, in Rex v. Carlile, 6 Car. & P. 636, are quite instructive on this head.”

In the case of Rex v. Carlile, cited by the court, it was field that if a party having a house facing a street exhibit effigies in his' window, attracting a crowd, which causes the walks to be so obstructed that the public cannot pass as they ought, this would be an indictable nuisance, even though the effigies were not libelous, nor the crowd made up of idle or dissolute persons.

It is said the ordinance is directed against freedom of speech; but this is a mistake. It is simply directed to the method of using a public space, and is no more a curtailment of the right of free speech than would be an ordinance that prohibited the making of public addresses in the corridors of the city hall. Perhaps no city in the world has been more jealous of the right of free speech than has the city of Boston. But in the growth of that city it was confronted with a like question to the one involved here; that is, How should the use of Bosion Common, a public space or park near the center of the city, be regulated and controlled? To meet this condition, the common council passed an ordinance similar to the one in Detroit. The validity of this ordinance was -sustained in Com. v. Davis, 140 Mass. 485 (4 N. E. 577). In 1892 an •ordinance was passed reading substantially the same as the Detroit ordinance. Its validity was challenged for the reasons presented here. The ordinance was sustained. in Com. v. Davis, 162 Mass. 510 (39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389). The case was then removed to the Supreme Court of the United States. In the opinion the following language is used:

“It is argued that ‘Boston Common is the property of the inhabitants of the city of Boston, and dedicated to the use of the people of that city and the public in many ways, and the preaching of the gospel there has been, from time immemorial to a recent period, one of these ways. For-the making of this ordinance in 1862, and its enforcement-against preaching since 1885, no reason whatever hásbeen or can be shown.’ The record, however, contains no evidence showing the manner in which the ordinance in question had been previously enforced, nor does it include-any proof whatever as to the nature of the ownership in the common from which it can be deduced that the plaintiff in error had any particular right to use the common apart from the general enjoyment which he was entitled, as a citizen, to avail of along with others, and to the extent only which the law permitted. On the contrary, the legislative act, and the ordinance passed in pursuance thereof, previously set out in the statement of facts, show an assumption by the State of control over the common in question. Indeed, the supreme judicial court-, in affirming the conviction, placed its conclusion upon the express! ground that the common was absolutely under the control of the legislature, which, in the exercise of its discretion, could limit the use to the extent deemed by it advisable, and could and did delegate to the municipality the power to assert such authority. The court said:
“ ‘There is no evidence before us to show that the power of the legislature over the common is less than its power over any other park dedicated to the use of the public, or over public streets, the legal title to which is in a city or town. Lincoln v. City of Boston, 148 Mass. 578, 580 (30 N. E. 829, 3 L. R. A. 257, 12 Am. St. Rep. 601). As representative of the public, it may and does exercise control over the use which the public may make of such places, and it may and does delegate more or less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no-more an infringement of the rights of a member of the public than, for the owner of a private house to forbid it in his house. When no proprietary right interferes, the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes. See Dill. Mun. Corp. §§ 393, 407, 651, 656, 666; Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70). If the legislature had power, under the constitution, to pass a law in the form of the present ordinance, there is no doubt that it could authorize the city of Boston to pass the ordinance, and it is settled by the former decision (Com. v. Davis, 140 Mass. 485 [4 N. E. 577]) that it has done so.’
“It is therefore conclusively determined there was no right in the plaintiff in error to use the common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to prescribe. The fourteenth amendment to the Constitution of the United' States does not destroy the power of the States to enact police regulations as to the subjects within their control (Barbier v. Connolly, 113 U. S. 27, 31 [5 Sup. Ct. 357]; Minneapolis, etc., R. Co. v. Beckwith, 129 U. S. 26, 29 [9 Sup. Ct. 207]; Giozza v. Tiernan, 148 U. S. 657 [13 Sup. Ct. 721]; Jones v. Brim, 165 U. S. 180, 182 [17 Sup. Ct. 282] ), and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the State.
“The assertion that, although it be conceded that the power existed in the State or municipality to absolutely control the use of the common, the particular ordinance in question is nevertheless void, because arbitrary and unreasonable, in that it vests in the mayor the power to determine when he will grant a permit, in truth, whilst admitting on the one hand the power to control, on the other denies its existence. The right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser. The finding of the court of last resort of the State of Massachusetts, being that no particular right was possessed by the plaintiff in error to the use of the common, is in reason, therefore, conclusive of the controversy which the record presents, entirely aside from the fact that the power conferred upon the chief executive officer of the city of Boston by the ordinance in question may be fairly claimed to be a mere administrative function, vested in the mayor in order to effectuate the purpose for which the common was maintained and by which its use was regulated. In re Kollock, 165 U. S. 526, 536, 537 (17 Sup. Ct. 444).” Davis v. Massachusetts, 167 U. S. 43 (17 Sup. Ct. 731).

See, also, Com. v. Brooks, 109 Mass. 355; Com. v. Abrahams, 156 Mass. 57 (30 N. E. 79); Wilson v. Eureka City, 173 U. S. 32 (19 Sup. Ct. 317).

It.was within the power of the common council to pass the ordinance. It was the duty of the recorder to proceed with the trial of the cause. People v. Swift, 59 Mich. 529 (26 N. W. 694); Sadler v. Sheahan, 92 Mich. 630 (52 N. W. 1030). It is so directed.

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