text:
    WHITE v. GIBSON.
    Covenants — Breach—Incumbrances—Tax Titles — Validity.
    The grantee in a warranty deed is not entitled to recover against the grantor for a breach of the covenant against incumbrances by reason of the existence of a tax deed, where the only evidence of the existence of a tax levy, or of any proceedings to enforce collection thereof, is the recital in the deed of the auditor general that the land was bid off to the State for the taxes assessed thereon for a certain year, prior to the date of the warranty deed.

      Error to Saginaw; Gage (Chauncey H.), J.
    Submitted November 14,1906.
    (Docket No. 149.)
    Decided December 3, 1906.
    Covenant by Eugene White and Nellie E. White against Henry K. Gibson and Millie Gibson for breach of covenant in a deed. There was judgment for defendants on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.
    Plaintiffs, in the trial of an action to recover for breach of the covenant against incumbrances, put in evidence an executory contract for the purchase and sale of certain premises made by the parties April 16, 1900, a warranty deed of the said premises made by defendants to plaintiffs, dated April 23, 1903, containing an unqualified covenant that the premises are free from all incumbrances whatever, a State tax deed of said premises, made by the auditor general to one Merrill, dated July 15, 1904, purporting to convey the premises for the sum of $57, a statutory notice from said Merrill, addressed to plaintiffs, dated August 13, 1904, and a quitclaim deed of the premises, given by said Merrill to plaintiffs December 15,1904. Testimony was given which tended to prove that plaintiffs paid to Merrill, after service of said notice, $127.69, and paid certain other items of expense, on account of the alleged incumbrance; that, before doing so, defendants were notified of the demand, and they advised and stated that it would be looked into, and not to be in a hurry about paying; that, after investigation, defendant Henry K. Gibson advised plaintiffs that the tax was an old ditch tax, was illegal, and not to pay it. After the payment to Merrill, defendants refused to reimburse'plaintiffs. There is no documentary evidence of the tax levy, or of any proceedings to enforce collection thereof, except the recital contained in the auditor general’s deed, and this recital is limited to the fact that the land was bid off to the State for the taxes assessed thereon in the year 1886. The trial judge directed a verdict for defendants.

      H. J. Patterson, for appellants.

      F. F. Emerick, for appellees.
   Ostrander, J.

{after stating the facts). It has been held, in this State, as between vendor and vendee, that taxes, unpaid when title passes, which have by the tax law become a lien upon the land; are incumbrances. Harrington v. Hilliard, 27 Mich. 271; Eaton v. Chesebrough, 82 Mich. 214; Lindsay v. Eastwood, 72 Mich. 336. See, also, 8 Am. & Eng. Enc. Law (2d Ed.), p. 126 et seq.; Kawle on Covenants for Title, § 77. Whether, after the tax lien has been foreclosed, and to the point where owners of land may obtain a reconveyance by payment of the tax and a penalty, the demand may be called an incumbrance within the meaning of the usual covenant, we are not called upon to determine. Counsel for both parties have assumed that such a demand may be an incumbrance, and the question presented is whether there is any evidence warranting a recovery by the plaintiffs. In such cases, the rule is that the tax or assessment, to be an incumbrance, must be a lien upon the land (Kirkpatrick v. Pearce, 107 Ind. 520; Cummings v. Holt, 56 Vt. 384), must be a lawful tax, legally levied, upon a lawful assessment (Mitchell v. Pillsbury, 5 Wis. 407), and, if it is not claimed, and proved, that a valid title passed by tax deeds, no incumbrance is proved (Tibbetts v. Leeson, 148 Mass. 102). It has been held, too, that, though the particular assessment was invalid, it might be sufficient to show that the tax was one which could be reassessed. Coburn v. Litchfield, 132 Mass. 449. The evidence of plaintiffs fails entirely to show any assessment of the land, levy of a tax, or any proceeding or document from which an assessment, or levy, dr lien, can be legally presumed. or inferred.

The judgment was therefore right, and is affirmed.

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


source: Caselaw Access Project

author: Carpenter, C. J.

license: Public Domain

text:
    GEIGER v. CAWLEY.
    1. Damages — Liquidated Damages or Penalty — Contract — Construction — Question or Law.
    Whether a provision in a written contract for the sale of a business, providing that if the seller re-engage in the business contrary to its provisions he shall pay the buyer $200, provides for liquidated damages or a penalty is a question of law, to be determined by the court in construing the written contract,' and not one of fact to be determined by making an inquiry into what was in the minds of the parties at the time of making it.
    2. Same — Liquidated Damages.
    A provision in a contract for the sale of a business, that the seller shall pay $200 if he re-engage in the business at that place within five years, is a provision for liquidated damages and not for a penalty.
    3. Contracts — Violation—Acts as Trustee.
    A contract not to engage in a certain business is violated by engaging in the business as trustee for another.
    4. Same — Construction—“And” as “Or.”
    A contract not to engage in the business of selling “hardware, furniture, implements, buggies and wagons,” in a certain place, is violated by the promisor engaging in the business of selling hardware and agricultural implements at that place, the word “and” in the contract being construed “or,” as intended by the parties.
    5. Liquidated Damages — Recovery—Actual Damages.
    Recovery may be had on a contract for liquidated damages without proof of any actual damages.
    Error to Mecosta; Palmer, J.
    Submitted November 14, 1906.
    (Docket No. 45.)
    Decided December 3, 1906.
    Assumpsit by James E. Geiger against Charles J. Cawley for stipulated damages for the breach of a trade agreement. There was judgment for defendant, and plaintiff brings error.
    Reversed, and judgment entered for plaintiff.

      M. Brown, for appellant.

      Cogger & Broomfield, for appellee.
   Carpenter, C. J.

This suit was tried in the lower court without a jury. A finding of facts was made, and judgment rendered in favor of defendant for the sum of $202.35. The material facts — we make this statement from the finding of the lower court — are as follows:

Prior to May 11, 1903, the plaintiff, defendant, and defendant’s wife, Elizabeth Cawley, were copartners, carrying on a general hardware business, selling hardware, buggies, wagons, furniture, and farm implements at the village of Barryton, in the county of Mecosta, in this State. On said 11th of May, plaintiff purchased from the defendant and his wife their interest in the business, agreeing to pay therefor the sum of $2,402.94, of which sum the $202.35, above mentioned, was the amount remaining unpaid, and interest thereon, when the suit was determined in the lower court. As a part of the transaction, the following written agreement was made:

“This agreement, made this eleventh day of May, 1903, between Charles J. Cawley and Elizabeth A. Cawley, of the first part, and James E. Geiger, of the second part. Said parties of the first part agree not to engage in the selling of hardware, furniture, implements, buggies, and wagons in Barryton, Mecosta county, Michigan, for the term of five years. In violation of this agreement the said parties of the first part agree to pay to the party of the second part the sum of two hundred dollars; and it is further agreed that C. J. Cawley is to receive a commission of one-third of the profits on all wagons and buggies sold by him and a fair percentage on all other implements sold by him for the said J. E. Geiger.

[Signed] “J. E. Geiger.

“ C. J. Cawley.”

February 1, 1904, one Wilson, a former partner and a rival in business of said plaintiff, executed and delivered to defendant as trustee a trust chattel mortgage to secure creditors, and since that time said defendant, as such trustee, has been engaged in selling general hardware and agricultural implements in the Wilson store in Barryton.

Plaintiff does not complain of the allowance of defendant’s claim. He does complain of the disallowance of his own. In determining whether or not this disallowance was proper, we must consider several questions:

1. Was the $200 which the plaintiff promised to pay defendant stipulated damages or a penalty ? The learned trial judge decided that it was a penalty. It is contended that this decision is justified by testimony brought out by an examination of the parties, showing the intent existing in their minds at the time the contract was executed. It is a complete answer to this contention to say that such testimony could not be used in determining the question. The question was one of law to be determined by the court by construing the written contract, and not one of fact to be determined by making an inquiry into the minds of the parties. That the obligation of parties to a written contract are those, and those only, contained in the writing, and that those obligations are therefore to be determined by construing the writing are elementary propositions of law. To deny them and be consistent, one must assert that it is altogether useless to make a written contract, for its terms would be quite as uncertain as if it were oral. Determining the question by construing the written contract is an easy undertaking, because the case is indistinguishable from Jaquith v. Hudson, 5 Mich. 123, where, in a masterly opinion written by Justice Christianoy, this court decided that a promise “not to engage in the mercantile business in Trenton * * * for the space of three years from this date upon the forfeiture of * * * $1,000” was a promise to pay stipulated damages.

2. Did defendant violate his contract? It is suggested that he did not- violate it for two reasons: (a) Because he is carrying on business as a trustee; (b) because the business in which defendant engaged is that of selling “hardware and agricultural implements,” and not that of selling “hardware, furniture, implements, buggies, and wagons.” We do not think that the circumstance that the defendant engaged in business as trustee is of consequence. His agreement “ not to engage ” in such business is sufficiently broad to prevent all engagements voluntarily undertaken. Had defendant desired to reserve the right to carry on business for others, he should have inserted it in the contract. Though he is carrying on business as trustee, he is nevertheless acting of his own volition, and it is to be presumed that he manages the business according to his own judgment. The consequences may be quite as serious to the plaintiff as if he were conducting this business as his own.

In Finger v. Hahn, 42 N. J. Eq. 606, it was held that a covenant of defendant “ that he will not carry on a retail butcher business on his own account or operate any butcher business ” was broken by his carrying on such business as the employe of another. The court saying:

“In common sense or reason, the object of every such covenant is to get rid of the competition which endangers the business of the purchasing party (the plaintiff); to remove beyond reach the influence of the vendor’s (defendant’s) popularity, business integrity, knowledge, or skill, and to make it impossible for personal influence and friendly considerations, arising from long-continued business acquaintance, exerting themselves to the prejudice of such purchaser.”

We think it equally clear that defendant, by engaging in the business of selling hardware and agricultural implements, violated his agreement. The object of the agreement, as heretofore indicated, was to prevent defendant competing with plaintiff in the business of selling hardware, furniture, implements, buggies, and wagons. The agreement should be so construed as to accomplish this object. So construed, it obligated defendant to refrain from selling hardware, furniture, implements, buggies, or wagons in competition with plaintiff. It is possibly true that to reach this construction we read the word “and” in the phrase “ hardware, furniture, implements, buggies, and wagons” as if it were “ or.” That we are at liberty to do, in order to construe the agreement in accordance with the intention of the parties. Chicago, etc., R. Co. v. Bartlett, 120 Ill. 603.

3. It is contended that plaintiff cannot recover, because he did not prove that he suffered any actual damages in consequence of defendant’s violation of the contract by engaging in business. We answer this contention by saying that the stipulation of damages relieved plaintiff from the obligation of introducing such proof.

We conclude, therefore, that plaintiff’s claim for the $200 stipulated damages should be allowed, with interest thereon from February 1,1904. This amounted (as computed by plaintiff) to $207.50, March 29, 1905, the date of the trial in the lower court. From this amount should be deducted the $202.35, the amount owing by plaintiff to defendant March 29, 1905. Plaintiff is entitled to a judgment for the balance, with interest thereon from that date, and is also entitled to costs of both courts.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    WEIGHT v. ST. LOUIS SUGAR CO.
    1. Corporations — Contracts—Validity—Nonpayment or Franchise Fee — Estoppel—Right or Attorney to Assert.
    The general attorney of a corporation cannot assert an estoppel against its claiming the invalidity of a contract made with him before its franchise fee was paid (section 8574, 3 Comp. Laws), since as general attorney he must have known that the fee was not paid, and that the contract relied upon was invalid.
    2. Same — Liability — Services Performed Before Organization.
    A corporation is not liable for services performed for it before its organization unless it ratifies the employment after organization.
    3. Evidence — Admissions—Rejected Account.
    Where a statement of account for services rendered is entirely rejected, plaintiff is not bound by it, but may prove and recover on trial the actual value of the services.
    4. Appeal and Error — Review—Questions or Fact.
    In an action for personal services, an allowance supported by evidence is conclusive on error.
    Error to Gratiot; Stone; J.
    Submitted November 14, 1906.
    (Docket No. 156.)
    Decided December 3, 1906.
    Assumpsit by James K. Wright against the St. Louis Sugar Company for work and labor. There was judgment for plaintiff, and defendant brings error.
    Modified and affirmed.

      C. W. Giddings and Kelly 8. Searl (Dielcema & Kollen, of counsel), for appellant.

      T. W. Whitney, for appellee.
   Carpenter, C. J.

Plaintiff is an attorney and brought this suit to recover for professional services rendered for defendant. In the lower court, the suit was tried without a jury. A finding of facts was made, and judgment rendered in favor of the plaintiff for $349 and interest thereon since March 1, 1903. From this finding it appears that among the items allowed plaintiff was $90 for securing options for the site of defendant’s manufactory, and $15 for securing an option for the right of way for a side track. From said finding and accompanying bill of exceptions, it appears that all the services in securing these options — except services worth $10 for securing one option — were performed prior to the organization of the defendant corporation, and the important question for our determination is whether or not defendant is liable for such services.

For the information of those concerned in this litigation, we say that in making the foregoing statement, we -fix February 36, 1903, as the date of the organization of the defendant corporation. This was the date of the first meeting of its board of directors. Defendant cannot complain because no later date is fixed, for it asked the trial court to take that date in determining its liability for these services. Plaintiff cannot complain because no earlier date is fixed, for this is several days earlier than the articles of incorporation were acknowledged and filed. In this connection it is proper to say that, except for the position of defendant above stated, we would be forced to hold that all contracts made by defendant >vith plaintiff before the payment to the State of the franchise fee — and this we must presume was not paid until the articles of incorporation were filed — are void. Section 8574, 3 Comp. Laws, so provides. See, also, Rough v. Breitung, 117 Mich. 48; Hastings Industrial Co. v. Moran, 143 Mich.. 679. In making this statement it is not our purpose to deny that a corporation making contracts before payment of the franchise fee may not under any circumstances be estopped from asserting the invalidity of such contracts. What we decide is that the principle of estoppel cannot be invoked by plaintiff. He was the general attorney of defendant, and it must be presumed that he knew that the franchise fee had not been paid, and therefore that the contract relied upon was unlawful.

Plaintiff’s counsel urge that the allowances under consideration should be sustained on the ground that defendant after its organization ratified plaintiff’s employment. They cannot be sustained on that ground. They were allowed, not because of such ratification — for there is no finding of ratification — but on the ground that defendant was “ organized and doing business prior to February 26, 1902, and that prior to that date defendant employed the plaintiff’s professional services in procuring options for its site and in securing right of way for a railroad side track.”

Moreover, it is not clear that the evidence warranted a finding of ratification. I am inclined to think that that evidence merely shows that defendant accepted and received the benefit of plaintiff’s work. It is doubtful if this affords evidence of ratification. See St. John’s Manfg. Co. v. Munger, 106 Mich. 90 (29 L. R. A. 63).

Deciding this question, then, as we must, upon the assumption that defendant did not ratify the contract to employ plaintiff, we are forced to the conclusion that the items under consideration should have been disallowed. As the defendant corporation was not in existence when the services were performed, it is clear that it did not contract to pay them (see opinion of Justice Grant in Sullivan v. Railway, 135 Mich. 661 [64 L. R. A. 673]. See, also, Western Screw & Manfg. Co. v. Cousley, 72 Ill. 531), and, even if it did, that contract, as heretofore stated, was void under section 8574, 3 Comp. Laws.

Defendant contends that an item of $50, allowed plaintiff for a retainer, comes within the foregoing principle. This contention we overrule. We cannot say that this item was not justly chargeable under a contract made after defendant’s incorporation.

It is contended that the amount of other items should be reduced because they were allowed for a larger amount than was claimed by plaintiff in an itemized statement presented by him to defendant before suit was commenced. This contention is answered by Romeyn v. Campau, 17 Mich. 327, and must be overruled.

Complaint is made that the court made excessive allowance for other items. Jt is sufficient to say that this allowance was justified by the evidence, and cannot be reviewed by us. Lamoreaux v. Creveling, 103 Mich. 501.

Judgment was entered for $249. It should have been $239 (that was the amount found due plaintiff by the trial court). This error should be corrected.

The judgment should also be modified by deducting $95 (the aggregate of the items improperly allowed), and as so modified it should be affirmed.

Defendant will recover the costs of this court, and plaintiff the costs of the circuit court.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    McGOVERN v. BENNETT.
    1. Brokers — Sale by Principal — Right to Commissions.
    Where a landowner who has employed a broker to sell lands on commission, knowing that the broker is negotiating for a sale with a certain person, cancels the broker’s authority, and himself effects a sale to that person by abatement of the price, the broker is entitled to his commission.

    3. Trusts — Contracts by Trustee — Liability of Trustee.
    Defendant, being a joint trustee and one of the executors of a will, contracted with plaintiff for plaintiff s services as broker in selling certain lands belonging to the estate. His letters were signed “Henry Howard Estate, by A. D. Bennett, Trustee.” Held, that defendant was personally liable for plaintiff’s commissions, and that he could not avoid liability by showing that he was in fact contracting as the agent of a partnership composed of the heirs of the estate.
    3. Brokers — Action nor Commissions — Recovery on Common Counts.
    An agreed commission for selling land may be recovered on the common counts, though the broker is wrongly discharged and the sale completed by the owner.
    4. Same — Commissions—Amount Recoverable.
    Where it is agreed that the commission for selling certain lands for $75,000 shall be $2,000, and the broker is wrongly discharged and the sale completed by the owner by abatement of the price, the broker’s commission cannot exceed $2,000.
    Error to St. Clair; Law, J.
    Submitted November 15, 1906.
    (Docket No. 172.)
    Decided December 3, 1906.
    Assumpsit by Thomas McGovern against Albert D. Bennett for commissions on the sale of land. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Cady & Crandall (M. F. McDonald, of counsel),' for appellant.

      Phillips & Jenks, for appellee.

       On the question of real estate broker’s commission, as affected by the negligence, fraud, or default of the principal, see note to Braekenridge v. Claridge & Payne (Tex.), 43 L. R. A. 593.

   Carpenter, C. J.

Plaintiff brings this suit to recover commissions for the sale of certain lands situated in Chippewa county in this State. The case was tried in the lower court before a jury, and a verdict directed in defendant’s favor. The question for us to determine is whether or not that direction was correct. The- material facts are as follows (we state those facts,, as we should, most favorably to plaintiff) :

Henry Howard- died testate May 25, 1894, owning the lands in question. Howard’s will, which was duly probated, made defendant one of his executors and a joint trustee of certain of his property. After Howard’s death, plaintiff, who resided at Sault Ste. Marie, and defendant, who resided at Port Huron, carried on a correspondence relative to the sale of these lands. The letters of defendant were written on paper headed “ Henry Howard Estate, A. D. Bennett, E. E. Howard, Trustees,” and they were signed “ Henry Howard Estate, by A. D. Bennett, Trustee.” We quote from one of those letters written July 6, 1894:

“Have written the Torrent people offering them the entire tract [this included the land in question and other land] for $90,000. The cut in price of $10,000 is made in order to close up the estate of Henry Howard. If a sale is made to them or you make a sale, I will allow you $2,500 commission. Hoping at this price you will find a purchaser at once.”

We quote from another of those letters written December 19, 1894:

“ The balance of the tract, 18 million [this is the tract for the sale of which commission is 'claimed] you may offer for $75,000 and we will allow you $2,000 commission .if you sell at this price. We are very sorry that you have not been more fortunate in making a sale of this, and hope you may be more successful in the near future.”

March 25, 1895, plaintiff wrote defendant:

“ I am about to get Mr. Frank Perry of the Soo to look the lower tract of your land.” (This was the tract Perry subsequently purchased.)

Before writing this letter plaintiff had talked with Perry many times about making this purchase. After writing it, he took Perry on the land, furnished him plats, and gave him defendant’s address. A few days later, early in April, 1895, Perry went to Port Huron to see the defendant. April 17, 1895, defendant wrote plaintiff that:

“We have taken our timber lands out of the market.”

May 15, 1895, defendant sold the land for $65,000 to said Perry, and to the Hall & Munson Company [with whose president and general manager plaintiff had talked “with reference to the purchase of these lands from 10 to 15 times.”] At the time this sale was made, defendant was one of two joint trustees of certain property under the will of the Henry Howard Estate. Defendant testified in substance that “ Henry Howard Estate, by A. D. Bennett, Trustee ” was the name of a partnership composed of Mrs; Howard, E. Louise Bennett (defendant’s wife) and John H. Howard, and that he (defendant) in dealing with plaintiff was acting as the agent of said partnership, but that he did not disclose those facts to plaintiff.

Defendant contends that the correspondence did not obligate any one to pay plaintiff a commission for the sale of these lands except in the event of a sale at a stipulated price, and that if it did, that obligation was imposed, not upon defendant, but upon the partnership known as “ The Henry Howard Estate.” We will consider each of these questions separately.

1. Did the contract impose an obligation upon- any one to pay plaintiff commissions for the sale of this land ? It is quite clear that if plaintiff had effected a sale to the Hall & Munson Company and Perry for $75,000, he would have been entitled to a commission of $2,000. It is equally clear that the jury could have found that defendant, knowing that plaintiff was negotiating with Perry, canceled his authority, and himself effected the sale by an abatement of the price. That finding would entitle plaintiff to his commission under the decision of Heaton v. Edwards, 90 Mich. 500. It follows that whether plaintiff was entitled to commission was a question of fact to be submitted to the jury under proper instructions.

2. Is defendant, or is the partnership responsible for this commission? There is no suggestion in the correspondence between the parties that the “Henry Howard Estate ” was a partnership for which defendant was an agent. That correspondence clearly indicates that defendant was acting as the trustee of the estate of Henry Howard, deceased, and it must be presumed that plaintiff entered into the contract, and brought this suit upon that assumption. It is true that the letters are signed “ Henry Howard Estate, by A. D. Bennett, Trustee,” and not “A. D. Bennett, Trustee of the Estate of Henry Howard,” but this is utterly unimportant, for the inference that defendant acted in the capacity of trustee of the estate is unavoidable. The relation of principal and agent does not exist between those interested in a trust and the trustee. The slightest reflection will make it clear that in such cases no authority to act as an agent is ever given. It follows that defendant by contracting as trustee contracted as principal, and made himself personally liable for the commission in this suit. See Packard v. Kingman, 109 Mich. 497, and cases there cited; Lothrop v. Duffield, 134 Mich. 485. See, also, Jones v. Dawson, 19 Ala. 672; Johnson v. Leman, 131 Ill. 609 (7 L. R. A. 656); Truesdale v. Insurance Co., 63 Minn. 49; Mitchell v. Whitlock, 121 N. C. 166; Worrall v. Harford, 8 Ves. 4; Strickland v. Symons, L. R. 26 Chan. Div. 245; 3 Pomeroy on Equity Jurisprudence, § 1085. One who contracts as principal cannot escape liability, certainly not after a suit is brought, by proving that he was acting as an agent. White v. Boyce, 21 Fed. 228; McKown v. Gettys, 25 Ky. Law Rep. 2070.

We affirm, in answer to what we conceive to be a denial in defendant’s brief, that plaintiff had a right to recover his commission (which was really agreed compensation for services rendered) under the common counts in assumpsit. It is.proper that we should state as a rule to be applied on a retrial of this suit that if plaintiff recovers, his commission will be, not as he claims, the customary one of 5 per cent., but the $2,000 mentioned in the correspondence. That is the amount to which he was entitled had a sale been made for $75,000. He is clearly not entitled to more when the property was sold for $65,000. His recovery cannot exceed the $¿,000, and interest thereon.

Judgment reversed, and a new trial ordered.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    KELSON v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Domicile — Nonresidence—Evidence—Sufficiency. ■
    ' Testimony by plaintiff that defendant was indebted to her for board and lodging furnished prior to January 9,1906; that at that time he left her house, taking all his clothes, saying that he expected to leave town and accept a position on a railroad in the West, and that she has not seen him since, sufficiently supports a finding that defendant was a nonresident.
    2. Exemptions — Who Entitled to Claim — Nonresidents.
    Nonresidents of this State are not entitled to claim exemptions from execution and garnishment given by our statutes.
    Error to Wayne; Mandell, J.
    Submitted November 16, 1906.
    (Docket No. 130.)
    Decided December 3, 1906.
    Garnishment proceedings by Catherine Kelson against the Detroit, Grand Haven & Milwaukee Railway Company as garnishee of William dowry. There was judgment for plaintiff, and the garnishee brings error.
    Affirmed.

      L. C. Stanley and W. V. Butler, for appellant.

      George M. O’Connor and J. W. Drummond, for appellee.
   Carpenter, C. J.

Defendant was garnished in an attachment suit commenced before Fred E. De Gaw, justice of the peace of the city of Detroit, by plaintiff, against one William dowry. Defendant disclosed that it was indebted to said dowry for his personal labor, wages, and services in the sum of $51.90. Subsequently, plaintiff having recovered judgment against the principal defendant, and haying taken proper proceedings against the garnishee defendant, the justice rendered judgment against said garnishee defendant for the full amount of the indebtedness disclosed. Defendant contended in the justice’s court and in the circuit court (where the case was taken by writ of certiorari), and contends in this court, that this judgment was excessive on the ground that the principal defendant was entitled to an exemption under Act No. 172 of the Public Acts of 1901. It is not necessary to set forth that statute. It is enough to say that it exempts from garnishment a certain portion of an indebtedness for personal labor, amounting in this cáse, if the statute is applicable, to the sum of $15. The question is whether that statute is applicable.

It appears that Justice De Gaw decided that it was inapplicable because the principal defendant was a nonresident of the State of Michigan. Defendant contends that this was error. It contends that there was no evidence warranting the conclusion that the principal defendant was a nonresident, and it also contends that, though a nonresident, he was entitled to the exemption. We think it clear that there was evidence tending to prove that the principal defendant was a nonresident. That evidence was furnished by plaintiff, who testified that dowry was “indebted to her * * * for board and lodging furnished * * * prior to January 9, 1906; * * * that at that time * * * he left her house, taking all of his clothes,” etc., saying “ that he expected to leave town and accept a position on a railroad in the West,” and that she (plaintiff) has not seen him since.

There remains to consider this question: Is a nonresident entitled to the benefit of the exemption ? That question cannot be regarded as an open one in this State. It was decided in McHugh v. Curtis, 48 Mich. 262, that the exemptions given by our laws are personal privileges which cannot be claimed by nonresidents of this State. The reasoning in that opinion, which was written by Justice Cooley, is as follows:

“States are not accustomed to give exemptions from the laws for the collection of debts for the benefit of per-' sons resident in other jurisdictions. The exemptions are personal privileges, dependent on personal or family circumstances ; and if one who possesses them removes to a foreign State, whereby he would acquire under its laws privileges more or less liberal not possessed by pur own people, he thereby abandons those which he possessed before so far as they were local in their nature. And, if exemption privileges are not necessarily local, they certainly are in their reasons. They are conferred on grounds of State policy, to add to the comfort and encourage the industry of the people, and every State will make such regulations on the subject as its own people shall deem wisest and best.”

It is true that the exemption denied in McHugh v. Curtis related to tangible property, and was claimed under a different statute than that involved in this suit, but these are unimportant distinctions. Its reasoning is clearly applicable to this case. The case of Pettit v. Booming Co., 74 Mich. 214, relied upon by defendant, is clearly inapplicable. There it was held that one residing in this State supporting a family in Canada was entitled to an exemption as a householder having a family. The exemption in that case was given to a resident of this State, and not, as argued by defendant, to his family residing elsewhere.

We conclude that there was no error shown in the record, and the judgment should, therefore, be affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Moore, J.

text:
    HESS v. ESCANABA WOODENWARE CO.
    Master and Servant — Warning and Instructing Servant — Hazardous Employment — Minor Servant.
    A boy of 17, unusually intelligent, held, under the evidence, not entitled to recover from his employer for an injury received while putting the belt on a slitting machine, on the theory that he should have been instructed how to work with the machine and not to replace certain box coverings while the machine was in motion; he having been at work at the machine three weeks and the danger being apparent.

    Error to Delta; Stone, J.
    Submitted November 16, 1906.
    (Docket No. 97.)
    Decided December 3, 1906.
    Case by Frank Hess, by next friend, against the Escanaba Wooden ware Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      G. D. McEwen {John Gummiskey, of counsel), for appellant.

      F. D. Mead {Vilas, Vilas & Freeman, of counsel), for appellee.

       As to master’s duty to warn or instruct servant, see note to James v. Rapides Lumber Co (La.), 44 L. R. A. 33.

   Moore, J.

This action was brought by plaintiff to recover damages for injuries sustained by him while engaged in feeding and operating a slitting machine in defendant’s factory. The trial judge directed a verdict in fayor of defendant. The case is brought here by writ of error.

The plaintiff was a little past 17 years of age when he commenced work It is claimed he had no experience in working in or about machinery of any kind, excepting three weeks that he had worked for defendant taking squares from the slitting machine and placing them on the drumsaw. It is said that, while plaintiff worked at the tail end of this slitting machine, he had never noticed or assisted in putting on the belts on the slitting machine, during the three weeks of his employment excepting twice, and then only to push over a lever to start the machine. We quote frpm the brief of appellant’s counsel:

“Plaintiff’s case is predicated upon the theory that it was the duty of the defendant to have instructed the plaintiff how to do the work safely on account of his youth and inexperience, and especially to have instructed him not to replace the box coverings while the machine was in motion.

“The belts on this machine would come off at frequent intervals, and this would necessitate their being replaced, and the replacing of the box coverings. If the box coverings had been replaced when the machine was not in motion, there would have been no danger to plaintiff, but, on the contrary, plaintiff was recklessly instructed by defendant to replace the boxes while the machine was in motion.

“On the day of the injury the belts had come off the machine four times. Then the question is, Should not the defendant have instructed plaintiff not to undertake to replace the box coverings while the machine was in motion, or might the defendant leave the plaintiff to learn how to do the work from experience and observation, inasmuch as the danger was obvious that the hand would be injured if caught in the rollers ? This, .our court has said, would depend upon the character of the work, the opportunity plaintiff' had for understanding how to do it safely, and is a question for the jury. Allen v. Jakel, 115 Mich. 486; Ertz v. Pierson, 130 Mich. 160.”

The machine upon' which plaintiff was working was driven by a belt which came up through the floor and passed over pulleys on the right-hand side of the machine, which pulleys had a wooden cover over them when running. When putting this cover in place plaintiff placed his hand on the bed of the machine. His hand slipped, passed between the rollers hurting him quite severely. It is conceded plaintiff had been at work upon this machine for three weeks. The circuit judge says he was a boy of more than usual intelligence. In addition to the description of the machine as disclosed by the pleadings and the testimony of the witnesses, we have photographs of it. The testimony and the pictures indicate very clearly that the machine was not a complicated one. The method of operating was simple, and its dangers were apparent to the observation of one employed as plaintiff had been. Instead of the case coming within those cited by counsel for appellant, we think the trial judge was right in holding that it was within Berlin v. William B. Mershon & Co., 132 Mich. 183, and the many cases there cited.

Judgment is affirmed.

Carpenter, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    BLACK v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Negligence—Injuries— Persons Near Tracks— Trespassers.
    A stream stocked with, fish by the State ran through a lumber yard which the public were permitted to enter during the fishing season for the purpose of fishing in the stream. A boy of 7, while fishing in the stream, at a point 25 feet be- ■ yond the end of a spur track, was killed by a car being pushed over the obstructions placed at the end of the spur. ■ Held, that he was not a trespasser, and that the-railroad company was- guilty of actionable negligence.
    2. Death — Damages—Death oe Child.
    In an action for the death of plaintiff's minor son, evidence as to the age, calling, and condition of health of the father, and of the age and condition of health of the mother, together with evidence that the boy was healthy, intelligent, of an excellent disposition, and obedient to his parents, is sufficient to authorize an award of substantial damages.
    3. Same — Damages—Excessiveness.
    An award of 51,500 to a father for the death of his son, aged 7 years, the boy being shown to be healthy, intelligent, of an excellent disposition, and obedient to his parents, is not*excessive.
    Error to Otsego; Sharpe, J.
    Submitted October 19, 1906.
    (Docket No. 107.)
    Decided December 3, 1906.
    Case by Walter R. Black, administrator of the estate of Charles Black, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Cooley & Hewitt, for appellant.

      De Vere Hall, for appellee.
   Moore, J.

Plaintiff’s son, aged seven years and one month, was killed by one of the cars of defendant. The father brought this action to recover damages under the provisions of section 10427, 3 Comp. Laws. He recovered a judgment in the sum of $1,500. A motion for a new trial was made, which motion was overruled. The case is brought here by writ of error.

In giving his reasons for overruling the motion, the judge stated the questions involved so clearly that we quote therefrom:

“ The grounds on which the motion is founded may be considered under three heads:

“ (1) Errors in charge as to the contributory negligence of the deceased boy.

“ (2) Error in charge as to measure of damages.

“(3) Excessive verdict.

“ These will be disposed of in the order presented.

“1. The facts as proven show that a switch or siding left defendant’s main line near the depot at Wolverine in Cheboygan county and ran to the northwest through the lumber yard operated by the Cornwall estate; that at the north end the ends of the rails were slightly elevated, and some ties placed thereon; that such end was from 16 to 20 feet from the bank of the river passing through Wolverine ; that posts supporting a tramway were between the end of said rails and said river; that the deceased and two little girls were fishing along the river, and, when defendant’s train entered said siding to do some switching, an empty car standing thereon was struck with such force as to push it over the end of the switch, when it struck and killed said boy. Was there such danger involved in standing or passing behind the end of the spur or switch as should have been apparent to a boy of seven years of age ? I am unable to so conclude as a matter of law. Neither can I assent to defendant’s claim that a child of that age must be held chargeable with the same knowledge of danger while in such a position as a man of mature years. The presence of a railroad track may be said to indicate the presence of danger, and when on such a track the danger may be said to be as apparent to a boy of seven years of age as to an adult. But it would, in my judgment, be extending the doctrine of due care to a much greater extent than either law or fairness should dictate, to hold that this boy, while apparently out of danger, was chargeable that a car might be forced over the end of the rails and the ties placed th'ereon by the negligence of defendant’s servants. ' I am of the opinion that the question of contributory negligence of the deceased was fairly presented to the jury.

“2. It is insisted that no facts were placed before the jury on which they could find that the plaintiff, as administrator, has sustained any damages. No witnesses were called to testify as to what the services of such a lad over and above the cost of his maintenance would be worth. While such evidence is admissible under the rule in Rajnowski v. Railroad Co., 74 Mich. 27, is it necessary to put it in to entitle plaintiff to recover ? The speculative nature of such evidence is admitted by defendant’s counsel. Necessarily the opinions of such witnesses would be in the nature of a guess. So many considerations are involved as might well cause any prudent man to hesitate before expressing an opinion.

“The cases of Cooper v. Railway Co., 66 Mich. 261, Hurst v. Railway, 84 Mich. 539, and Charlebois v. Rail road Co., 91 Mich. 59, are relied on by defendant’s counsel as containing an intimation, if not an express holding, that some such proof must be offered. I have examined these cases with much care, and believe that they throw but little light upon the question. That such evidence is admissible seems well established. But, except in cases where it may be shown that the boy’s services are likely to be more valuable than those of the ordinary lad, the jury could be but little if in any way assisted thereby. The question is one of judgment, and, if this statute is to be given any reasonable construction, in my opinion, the jury should be left to determine plaintiff’s damages after having been furnished proof of the avocation of the parents and their probability of living during the minority of the child. The value of such services is speculative, and the judgment of the individual jurors, when merged into a verdict, is quite as likely to approximate what is right and just as though aided by speculation of witnesses. The plaintiff’s failure to offer such proof is not,' in my opinion, ground for a new trial.

“3. Was the verdict excessive? I am unable to so conclude under the repeated decisions of our Supreme Court. In the Cooper Case a judgment for $1,550 was affirmed. The deceased was a girl 11 years of age. While the courts will not disturb a lesser verdict as inadequate, one of $1,500 should hot be held to be so excessive as to require its reduction or as a reason for granting a new trial. ”

Counsel for defendant insist a verdict should have been directed in its favor for two reasons: (1) Defendant was not guilty of actionable negligence; (2) no damages were recoverable because there was a failure of proof as to pecuniary injury. We will discuss these contentions in the order presented.

1. The claim of counsel is stated in their brief as follows :

It is believed that this case does not differ in any degree from one where the injured person is a trespasser in the yards, or on the premises of the railroad company. Plaintiff’s son had no lawful business and no right to be at the end of this track. The duties owing by the defendant toward this boy, who was at most but a bare licensee on the premises of the Cornwall Company, were only to refrain from willful and malicious injury to him ” — citing Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310), and other cases.

The record discloses that the stream where these children were fishing was stocked with trout by the State; that during the fishing season all persons who desired to do so were permitted to come into the millyard, along the margin of the stream where the children were, and fish. It also shows that it was about 25 feet from the end of the spur to the margin of the stream; that, at the end of the spur, ties and rails had been thrown up to prevent any car from passing off the end of the rails. The car which hurt the child was pushed, by a train put upon the siding, beyond this obstruction at the end of the rails. It is claimed this train was backed upon the spur much more rapidly than it ought to have been and without being under the control of the trainmen. Instead of the child being where it had no right to be, it was the car that was where it had no right to be, and where no one had any reason to suppose that it would come. We do not think the contention of counsel for defendant can be sustained.

2. We again quote from brief of counsel:

“ The declaration in the case at bar alleged that the plaintiff had suffered pecuniary injury, but the record is absolutely barren of evidence to support the allegation. There was no proof, even to the extent of a bare statement of a witness, that pecuniary injury had been sustained'. Mr. Black, the boy’s father, testified that his son had been killed, and gave the ages of himself, his wife, and son. The trial court held that this was ample to justify the jury in assessing substantial damages, despite the protest of defendant’s counsel, who argued that its effect was to leave the jury in the field of speculation, and to make each of the jurymen witnesses for plaintiff as to whether pecuniary injury had been suffered and the amount thereof. Proof could and should have been supplied, not only of the condition in life of the father and mother, their education, and occupation, but also of the cost of educating, clothing, and maintaining such a boy until be becomes self-supporting; and also the probable amount of his net earnings above expense of maintenance from that time until he becomes of age. All this proof can be based on experience in similar cases. That some evidence of this character must be supplied to justify a recovery is settled law in this State,” — citing Hurst v. Railway, 84 Mich. 539, and other cases.

An examination of the cases cited will show they are authority for the,proposition that, in an action for damages because of the death of a minor, it is competent to give testimony of the kind mentioned by counsel. The precise question, however, now presented, has not been passed upon by this court. Some phases of the case were discussed in the cases cited by counsel and in the more recent case of Snyder v. Railway Co., 131 Mich. 418, in which it was said:

“ There was no testimony from which the earning capacity of this boy could be computed to a mathematical certainty. It was a question about which different persons might and .would disagree. Such testimony as the parties were able to produce was offered on each side. The weight of that testimony, its credibility, and the conclusions to be drawn from it, were for the jury.”

Upon the trial, in addition to what is stated in the quotation from counsel’s brief, the age, calling, and condition of health of the father was given, and the age and condition of the mother. It was also shown that the boy was healthy, intelligent, of an excellent disposition, and obedient to his parents. The question presented here has been before other courts. ' In Parsons v. Railway Co., 94 Mo. 286, it is said:

“The law presumes the life of a minor child to be of value to his parent, because he is entitled to his services and is responsible for his support during minority. He is necessarily injured by a wrongful act resulting in the death of such minor child, which thereby deprives him of the value of those services and casts upon him the burden of legal liability for that support when deprived of the value of such services, enhanced by the additional expense of providing medicine, medical' attention, and nursing during illness, and for funeral charges when he dies. To compensate him for this loss and this burden, the law allows the parent of such minor substantial damages, and they may be measured by the experience and judgment of the jury, enlightened only by a knowledge of the age, sex, and condition in life of the deceased, and the parent is not restricted to the recovery of merely nominal damages, because the value of the services of the child, or the amount of expenses incurred or paid for his support, and other necessaries during illness, or funeral expenses, be not proven. An intelligent jury, from common experience, may determine approximately, in any given case, what amount would compensate a parent for all pecuniary losses sustained by reason of the death of a minor child.”

The case of City of Chicago v. Hesing, 83 Ill. 204, is instructive upon two of the questions raised in the court below. The action was brought to recover damages for the death of a boy four years old. The court said:

“ Only pecuniary damages can be recovered in such actions as this. Nothing can be given as solace or for bereavement suffered. Under instructions declaring the true rule for estimating the damages, the jury found for plaintiff in the sum of $800, but one of the errors assigned is the amount found is excessive. As a matter of law, we cannot so declare, and, as a matter of fact, how can we know the amount is in excess of the pecuniary damages sustained ? When proof is made of the age and relationship of the deceased to next of kin, the jury may estimate the pecuniary damages from the facts proven, in connection with their own knowledge and experiences in relation to matters of common observation. It is not indispensable that there should be proof of actual services of pecuniary value rendered to next of kin, nor that any witness should express an opinion as to the value of services that may have been or might be rendered. Where the deceased was a minor, and left a father who would have been entitled to his services had he lived, the law implies a pecuniary loss, for which compensation, under the statute, may be given. ”

See, also, Birkett v. Ice Co., 110 N. Y. 504; Houston City Street R. Co. v. Sciacca, 80 Tex. 350; Little Rock, etc., R. Co. v. Barker, 39 Ark. 491.

The jurors have all been boys. The average' juror knows the conditions which surround a boy in a family like that of plaintiff. We think it cannot be said, .as a. matter of law, that there was no basis upon which to find a verdict for pecuniary loss. Upon the question of excessive damages, see, also, Cooper v. Railway Co., 66 Mich. 261; McDonald v. Steel Co., 140 Mich. 401.

Judgment is affirmed.

Carpenter, C. J., and McAlvay. Grant, and Blair, JJ., concurred.


author: Ostrander, J.

text:
    HAAK LUMBER CO. v. CROTHERS.
    Husband and Wipe — Conveyances—Effect — Tenancy by Entirety.
    ‘ Where a husband conveys land by warranty deed to secure pay-' ment of money borrowed, his wife joining in the deed as such and not as owner, the deed operates as a mortgage, and a reconveyance to them as husband and wife by the mortgagee by quitclaim operates merely to discharge the mortgage, and does not create a tenancy by entirety.

    Error to Cheboygan; Shepherd, J.
    Submitted October 11, 1906.
    (Docket No. 56.)
    Decided December 3, 1906.
    Replevin by the Haak Lumber Company against George F. Crothers. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    James E. Holcomb and Emma, his wife, on July 3, ' 1901, executed and delivered to plaintiff a deed of the timber on certain premises, containing the provision that “ any timber remaining after May 1, 1904, shall revert to parties of the first part.” Said Holcomb had, in April, 1900, contracted in writing to sell this land and other lands to one Archibald J. McKillop. McKillop sold the timber to plaintiff,, receiving the pay therefor, and the. timber deed was made by Holcomb by mutual consent; he having at the time title to the land. Pursuant to said contract, on May 24, 1902, the administrator of said Holcomb conveyed the premises to said McKillop by deed dated on said last-mentioned day. October 16, 1902, McKillop and his wife conveyed the land by warranty deed to certain persons to secure payment of money borrowed; the deed containing the recital:
    “ This deed is security for payment of three promissory notes, made by Archibald McKillop and Lizzie McKillop, of even date thereof, and the within descriptions are to be conveyed to them if said notes are complied with.”
    And on December 15, 1902, the said grantees reconveyed by a quitclaim deed to said McKillop, describing the grantees as “ Archibald McKillop and Lizzie McKillop (husband and wife).” February 18, 1904, McKillop and his wife, described in the deed as “husband and wife, of the first part, ” conveyed the land to defendant. Plaintiff cut the timber on the land before May 1, 1904; but none of it was removed until after that date. December- 5, 1903, agreeably with an oral arrangement before then made between plaintiff and McKillop, said McKillop made a deed to plaintiff of the timber in question in which it was recited:
    “This deed is given for the purpose of extending the time for removing said timber which is now held by party of second part by virtue of a timber deed executed by James E. Holcomb and Emma B. Holcomb, his wife, dated July 3, 1901.”
    In terms, this deed gave until May 1, 1905, to remove the timber. This deed was not recorded until December 12, 1904. The wife of McKillop, though described as a grantor in the deed, did not sign it. Testimony was introduced tending to prove that his wife refused to sign the deed. The testimony also tended to prove that defendant, when he purchased the land, had notice of the claims and rights of plaintiff. The defendant refused to permit plaintiff to remove the timber, whereupon, in December, 1904, this action was begun. Timber valued at the sum of $770.11 was seized. Counsel for both parties asked for a directed verdict. There was a verdict and judgment in favor of plaintiff.

      C. S. Beilley, for appellant.

      Charles D. Barghoorn, for appellee.

       For a review of the whole subject of tenancy by entireties, see note to Hiles v. Fisher (N. Y.), 30 L. R. A. 305.

   Ostrander, J.

(after stating the facts). A single question of fact was submitted to the jury, which was whether defendant had sufficient notice of the claim and rights of plaintiff. The case for defendant, appellant, is based upon- a single proposition, which is that no extension of time in which to remove the timber was given. This proposition is in turn based upon the contention that McKillop and his wife were, when the extension was given, tenants by entireties of the land, by operation of the deed of December 15, 1902, executed to retransfer the title which had been conveyed as security for repayment of the loan. The argument made is that the legal effect of the words used in the deed in question is to create an estate by entireties, which effect cannot be changed by evidence dehors the deed itself. Counsel for the appellant relies upon the authority of Jacobs v. Miller, 50 Mich. 119, and Morrill v. Morrill, 138 Mich. 112. In Jacobs v. Miller the action was ejectment. It appeared that the land in question was conveyed by a guardian’s deed, authorized by a decree in chancery, to. Leo E. Taufkirch and Margaret Taufkirch, his wife, their heirs and assigns. Subsequent to the death of said Margaret; the surviving grantee conveyed the entire estate in fee simple to defendants in ejectment. The plaintiffs were the heirs at law of Margaret, who had been divorced from their father, had married Taufkirch, and had lived with him as his wife until her death. Their contention was that in fact the second marriage of their mother was illegal, for the reason that the husband had, at the time of said marriage, a living wife; that consequently they did not take title to • the land in question by entireties, but as tenants in common. It was held error to allow plaintiffs to contradict the prima facie legal operation of the guardian’s deed, under which both parties claimed, and to change the estate from that which the terms of the deed unequivocally marked out to another and wholly different estate, not within the meaning of the words of the instrument. The principle applied was that the effect due to the plain words of a deed cannot be contradicted by parties or their privies in any collateral matter by parol evidence. To the same effect are Morrill v. Morrill and many other decided cases.

We are not required to consider what effect would be given to the deed in question here, if it had been made by persons appearing to own the title, for a valuable consideration, to persons neither of whom had any estate, legal or equitable, in the land, and without notice of plaintiff’s rights. McKillop owned the land when he conveyed it as security. Mrs. McKillop joined in the deed as wife, and not as owner. The instrument was a mortgage. Cowles v. Marble, 37 Mich. 158. The equity of redemption remaining in McKillop was essentially a legal estate in the land (Gorham v. Arnold, 22 Mich. 247; Hoffman v. Harrington, 33 Mich. 392; Batty v. Snook, 5 Mich. 231; Caruthers v. Humphrey, 12 Mich. 270; Hazeltine v. Granger, 44 Mich. 503; Wagar v. Stone, 36 Mich. 364), and could be conveyed only by some instrument in writing (Rawdon v. Dodge, 40 Mich. 697). The effect of the quitclaim deed of the mortgagees was to release the mortgage and to merge the title in McKillop. It appears, therefore, that the deed which, it is claimed, operated by its terms to create an estate by entireties in defendant’s immediate grantors, was not made by one who had, or who appeared to have, the entire estate in the lands. To permit this fact, appearing in the chain of defendant’s title, to be relied upon by plaintiff to establish his rights derived from McKillop, is not a violation of the rule of Jacobs v. Miller, supra. The bill of exceptions contains all of the testimony given upon the trial. In my opinion it conclusively establishes the fact that Mr. Mc-Killop executed and delivered to plaintiff the deed extending the time for removing the timber. It is also conclusively established that defendant bought with notice of plaintiff’s claim and right. It was immaterial whether the wife of McKillop did or did not join in the deed of the timber, and the circuit judge should have directed a verdict for the plaintiff.

The judgment is affirmed.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.


author: Ostrander, J. Hooker, J.

text:
    LOTT v. LOTT.
    1. Injunction — Equity—Restraining Ejectment — Defense at Law.
    A defendant in ejectment who has the apparent legal title to the premises in controversy, and whose title can only be defeated by showing as a fact that the premises constituted his grantors’ homestead at the time of conveyance, cannot maintain a bill to restrain the action of ejectment, since only legal titles are involved.

      2. Homestead — Conveyance—Sufficiency—Joinder of Husband and Wife.
    Section 2, article 16, of the Constitution, requires the wife to join with her husband in the instrument by which alienation of their homestead is brought about, if to a third person, and an attempted conveyance" by the wife separately from her husband, pursuant to an oral contract of the husband to convey, is ineffective. Hooker and Grant, JJ., dissenting.
    Appeal from Clinton; Stone, J.
    Submitted February 7, 1906.
    (Docket No. 34.)
    Decided December 17, 1906.
    Bill by Benjamin W. Lott and Lottie Lott against Corell Lott, Louisa Lott, and Harriet McKibben to restrain an action at law, and to quiet title. From a decree for complainants, defendant Corell Lott appeals.
    Reversed, and bill dismissed.

      Charles F. Hammond and William M. Smith, for complainants.

      Norton & Jamison, for appellant.
   Ostrander, J.

Jacob Lott died intestate in February, 1901. Benjamin and Corell Lott, sons, and Harriet Mc-Kibben, a daughter, are the surviving heirs. The mother of these children died in 1865, and in 1875 Jacob married Louisa Lott, who survives him. He owned a farm of 140 acres, described as the west half and the west three-fourths of the east half of the northwest quarter of section 14, acquired in 1853, upon which he lived, and where .the children were born. The house, barns, wells, were on that portion of the land described as the northwest quarter of the northwest quarter of the section. August 18, 1879, Louisa Lott executed and delivered two deeds, one to Corell Lott, the other to Benjamin Lott, which purport to convey “all of her dower interest as the wife of Jacob Lott” in and to his farm — in the north 70 acres to Benjamin, in the south 70 acres to Corell. Jacob Lott, on October 3, 1900, executed two deeds, in which his wife did not join, in and by which he conveyed to Benjamin the north, and to Corell the south, 70 acres of said farm. At about the date of the deeds from Louisa, in 1879, Benjamin and his wife went into possession of the north 70 acres, and Corell and his wife went into possession of the south 70 acres. Jacob and his wife continued to live on the land in the house with Benjamin. Corell instituted proceedings to administer the estate of his father, setting out in his petition that the estate consisted of personal property only. Louisa, who is an incompetent person, through her guardian, made a claim upon each of the boys, after the death of Jacob, upon the theory that she had not by the earlier deeds conveyed her dower interest. An arrangement was made with her, which was confirmed by the probate court, based upon valuable consideration, paid or to be paid by each, and deeds of conveyance were executed hy her guardian, conveying “ all the right, title, and interest of said Louisa ” in the said real estate. Later, Corell claimed an undivided one-third interest in 40 acres out of the 70 acres which had been ctínvéyed to his brother, Benjamin, to recover which he began an action of ejectment. Benjamin, his wife joining, filed his bill of complaint, making his brother, his sister, and the widow parties defendant, to restrain the proceedings at law, and to confirm and quiet his title. The theory of the bill is that the father, Jacob, proposed as early as the year 1879 to give this farm to his sons, to each one-half; that he interested himself in procuring and paid a consideration of $500 for the quitclaim deeds first executed by his wife; that possession was given of the land — to each son his half — with the statement and understanding that it belonged to the sons, respectively; that by mutual agreement each son was to manage his portion of the farm, and give to the father one-third of all wheat raised, and to supply him by contributions, made equally, whatever was further needed for his support and maintenance; that upon the south 70 acres the father built a new house and a barn; that since the year 1879 each of the sons has considered that he owned his respective one-half of the land, and has acted accordingly. The sister, Harriet, was not served with process. A general guardian’s answer was filed for the widow, and a hearing was had upon the issues presented by the bill and the answer of Corell. A decree was made confirming the title of complainants as against Corell and the widow, and perpetually enjoining each of them from beginning and prosecuting any action at law or otherwise to recover the premises. From' this decree, defendant Corell has appealed.

The position of appellant is that his father had a homestead in and upon the 40 acres of land described in his declaration in ejectment, of which he had never made a lawful conveyance, and that upon his decease the title thereto passed to the three heirs at law; that the interposition of a court of equity to determine this question is unnecessary and unwarranted. The evidence, other than documentary, which the record contains, was given by complainants, over the objection, not urged in this court, that it was for the most part incompetent because relating to facts equally within the knowledge of the deceased father. Counsel for complainants urge that the case is one for a court of chancery because the whole arrangement was in the nature of a family arrangement agreed to and participated in by Corell, who has received the fruits thereof, and who is estopped to keep his own, and ask for and recover a portion of his brother’s, share of the disposition of property actually attempted. It is replied that the equities are no stronger than those presented in Webster v. Warner, 119 Mich. 461, and that, for the reasons set out in the opinion in that case, complainants must fail here. Whether or not the 40 acres in question was regarded as and claimed to be a homestead by the father or mother, when the deed of the father was made, is, first of all, a question of fact. There is evidence tending to prove that neither parent, at that time, claimed or regarded themselves possessed of homestead rights in the property. Unless there was, in fact, such a homestead interest, complainant here, defendant in the ejectment suit, has the legal title to the land and must, in that action, prevail. Legal and not equitable titles are involved, and no case is presented warranting interference with the action at law.

The reasoning of Mr. Justice Hooker, and the conclusion he reaches, have the effect, it seems to me, of unsettling the law of the State with regard to the formalities necessary to be observed in alienating a homestead. The language of the Constitution (art. 16, § 2) is:

“Alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.”

I think that up to the present time the law has been supposed to require the wife to join with her husband in the instrument by which the alienation, if to a third person, is brought about. It is pointed out by Mr. Justice Montgomery, in Gadsby v. Monroe, 115 Mich. 282, 284, that the Constitution, in the provision above quoted, deals with the land which constitutes a homestead, and not with any specific interest therein. This court has said (Phillips v. Stauch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709), that, although the value of the land constituting the homestead be greater than the constitutional exemption, the conveyance is a nullity, and cannot be enforced at all. And distinction is made if there are parcels capable of severance from the homestead. Engle v. White, 104 Mich. 15. In this language of the Constitution, in these decisions and the theory upon which they proceed, is to be found reason for now holding that a wife may not convey the land which is a homestead or any part thereof or interest therein, piecemeal or otherwise, to any third person, by her separate instrument. Her separate agreement to convey the land in the future would seem to have no more validity than her present, sole conveyance. It is said that the contract made by the husband, accompanied by the quitclaim deeds made by the wife, constituted a valid land contract enforceable in equity against both. This is another way of saying that a palpable noncompliance with the Constitution may be aided by another. Or that two evasions may amount in equity to one compliance. The deeds executed in 1879 by the wife were attempts on her part to sell the land, including that claimed to have been included in the homestead. She had no interest in the land which she could thus convey. Assume that she intended to sell and convey all her interest in the land. As matter of law she conveyed no interest or title. Her deed was totally insufficient. It was not a promise or agreement to convey in the future. It was not a joining in her husband’s parol agreement. It was a nullity,’ not as to a part merely, but as to all of the land. What she did may be regarded as' evidence to sustain the finding that she assented to the agreement made by her husband. But her assent, like her husband’s promise, rested entirely in parol. Evidence of her assent in fact is no stronger here than it was in Webster v. Warner, in Gadsby v. Monroe, and in Hall v. Loomis, supra. What she did is also some evidence, I think, of the fact that when her husband deeded the land in the year 1900, she claimed no homestead. But it is dangerous doctrine that a void present conveyance of a homestead is a valid promise to convey in the future. In my opinion, the court should adhere to the rule that the conveyance of a homestead, by a married man, should have the signature o£ the wife to the same. The case of Ring v. Burt, 17 Mich. 472, involved the transfer of a homestead, that of Rhoades v. Davis, 51 Mich. 309, the transfer by a wife of her dower. The later decision should not be considered as shaking the authority of' the earlier one as to the point there in judgment.

The decree is reversed, with costs of both courts to appellant, and a decree will be entered dismissing the bill without prejudice to the rights of any of the parties.

Carpenter, C. J., and McAlvay, Blair, Montgomery, and Moore, JJ., concurred with Ostrander, J.

Hooker, J.

(dissenting). In 1879 Jacob Lott owned and lived upon 140 acres of land. At that time he made an arrangement with his two sons by which he gave to them (as far as he could orally) moieties of his farm, and put them in possession thereof. His wife, Louisa, executed and delivered to them quitclaim deeds as part of the transaction. The complainant has lived upon his 70 acres practically all of the time since. At the time the arrangement was made, it was agreed by the brothers that Jacob Lott should receive from them a share of the wheat raised by each, and that a hog should be fatted and a cow kept by each, for him, yearly. His general abiding place, since 1879, was with his son Benjamin, the complainant, occupying, by arrangement, some rooms in the dwelling upon his portion of the farm. Jacob Lott deeded to his sons their respective parcels in 1900, and died in 1901. Subsequently the defendants began ejectment to recover a portion of the 70 acres deeded to the complainant, upon the claim that the 40 acres upon which the dwelling stood was the homestead of Jacob and Louisa Lott, that her deed was void, and that her not joining with her husband in his deed rendered that void, and that the land descended to his children in equal shares. Thereupon complainant filed a bill in equity to quiet his title, obtaining an in j unction restraining defendants from prosecuting the ejectment case. That Jacob Lott’s agreement in 1879, followed as it was by a surrender of possession and control of the premises for 20 years, was taken out of the statute of frauds, so far as he was concerned, does not admit of serious question.

At the time the contract was made his wife quitclaimed her interest in the premises. Such interest consisted of (1) an inchoate right of dower; (2) a homestead interest. The dower interest is disposed of by a deed, made in February, 1903, in which, under an order of the probate court, she conveyed all of her interest in the estate to the complainant, and it may be added that it would cover any homestead interest remaining in her if she had any at that time. There can be no reasonable doubt that this contract was approved by Louisa Lott, and that she was a party to it. She shared in the benefits arising from its performance, and if her deed did not have the effect of divesting her of her right of dower (see Randall v. Randall, 37 Mich. 563; Rhoades v. Davis, 51 Mich. 306; Wright v. Wright, 79 Mich. 531; Dakin v. Dakin, 97 Mich. 287; Chittock v. Chittock, 101 Mich. 369), which we need not decide, it was equivalent to giving her consent to the contract, which, had it been in writing and signed by Jacob and Louisa Lott, would have cut off dower and homestead rights in both. While all of the terms of the contract were not in writing, she, by her signed quitclaim deed, did enough to comply with the constitutional provisions (article 16, § 2), as we will proceed to show. The husband’s oral contract was void at law, under the statute of frauds. It was, however, not void, but only voidable, in equity, so far as the statute of frauds is concerned.

The husband’s contract, whether oral or written, unless accompanied by the written assent of the wife, was absolutely void, both in law and in equity, because of the provision of the Constitution, art. 16, § 2. Had it been in writing and signed by the wife it would have complied with such provision and been enforceable in equity. Being oral, it must be treated as absolutely void, in equity as well as at law, unless the wife can be said to have assented to it in writing . If she did so assent, it would be valid in equity, though oral on the part of the husband, unless we are required to hold that her assent, though in writing, is inadequate, because not given in exact accordance with the statute; i. e., by signing a writing executed by the husband. We have no difficulty, under the proof in the cause, taken in conjunction with the defendant’s answer, in finding that the husband and wife joined in the oral agreement, substantially as alleged in the bill, and that she put her assent to it in writing as a part of the transaction, and upon a special consideration moving to her. Such writing consisted of two quitclaim deeds, in which she expressly sought to convey her right of dower, ‘together with all the estate, rights, title, interest, claim, or demand whatsoever * * * either in law or in equity, of, in and to the premises. ” The deed was broad enough in its terms t.o embrace any right or interest that she had in the land. Had the transaction, i. e., the oral agreement, been also accompanied by deeds from her husband, it would be an exceedingly technical construction of the homestead law to hold that his and her deeds, though separate instruments, were not a substantial compliance with the requirements of the homestead provisions, constitutional and statutory, and that all of the deeds not only failed to convey the homestead, but were void in equity, because the parties made separate deeds instead of joining in one. We think that there is no case that requires us to so hold. The case that perhaps comes the nearest to sustaining such a proposition, is Ring v. Burt, 17 Mich. 472, and in that case the ground upon which it rests, and the reasons given, more than the conclusion reached, require such holding. They were, briefly, that, at the common law, a married woman was incapable of entering into a binding contract affecting any right that she might have in her husband’s property, and that such disability then continued in this State, unless removed by statute, and that while the married woman’s act (so known) removed any disability that theretofore existed as to her sole or separate property, it went no further; that the right to a homestead in her husband’s lands was no more in the nature of such property than the right of dower, and that there was a striking similarity as to such rights, and that the only way that she could convey or incumber (or in any manner affect by contract), either of the rights during coverture, was by joining in a deed or mortgage with her husband, according to the statute.

In that case the contract was made by the husband and wife, but was oral. The wife signed no writing. She gave no deed at any time, and the court refused to specifically enforce the contract, because the wife had signed no writing'at all. That is as far. as it was necessary to go, and the case in no way involved the question raised here; i. e., whether a signature by the wife of a separate consent to the oral contract would make such oral contract valid in equity, and not a violation of the homestead law. But we must read that case in the light of the later one of Rhoades v. Davis, 51 Mich. 309, which held that a wife’s release to her husband of her inchoate right of dower by a quitclaim deed signed only by her was good even in an action at law. It was contended, first, that before the statute of 1855 (married woman’s act) a married woman could not relinquish to her husband her incipient right of dower, by giving him a deed; and, second, that this right, not being a separate estate, its disposal had not been affected by such legislation.

As to the first question, the court merely said:

‘ ‘ Whether the method of barring dower which the statute approves by joining in the husband’s deed or with the guardian, or by her sole deed to a third person, who has obtained the husband’s title should be deemed exclusive where the case does not depend on an act of relinquishment directly to the husband, may be left for future inquiry.”

Upon the second, it said that it seemed to have the support of a dictum in Ring v. Burt. Calling attention to the statement made there, that a married woman could not affect her homestead right, except by joining in a deed or mortgage with her husband, the opinion said:

‘ ‘ This was not the point in judgment, and the remark was only a casual observation in the course of argument. However entitled to respect as the expression of an eminent judge, the court cannot regard it as an adjudication.”

The opinion clearly disapproved of the doctrine and discredited the case of Ring v. Burt. The opinion continues as follows:

“The first consideration is, what, in the light of reason, is this ; possibility of dower accruing to the wife after marriage, but before the death of the husband ? ’ The authorities universally deny that it constitutes an estate; at the same time they admit, with equal unanimity, that it is a right concerning land, and one which possesses value. In Greiner v. Klein a majority of this court were of opinion that it was of such worth that a sale in partition would not bar it, unless the wife were a party to the suit. 28 Mich. 12. Again, in Farwell v. Johnston, 34 Mich. 342, and in Bissell v. Taylor, 41 Mich. 702, it was ruled unanimously that the right was salable by the wife, and had sufficient purchasing power to supply a legal consideration for a conveyance to her. And in Randall v. Randall, 37 Mich. 563, it was determined that the right was of such nature that the wife, by deeding directly to the husband, might work an equitable sale of it, whereby to furnish a consideration capable of upholding a grant to herself. See, also, Miller’s Ex’r v. Miller, 16 Ohio St. 528; Wilson v. Wilson, 1 H. L. Cas. 538.

“ Here, then, is something belonging to the wife which she may part with or retain. It possesses a money value, and may be the object of sale and release. It is capable of being dealt with as property. The statutes and the decisions recognize it as property. True, it cannot be shifted from one to another without reference to the repository of the general title. The nature of the thing forbids it. The only point here is whether the husband, who holds the land subject to this right, may not continue and at the same time receive directly from his wife a release by deed, provided the transaction is supported by a satisfactory consideration and is in all respects fair and reasonable. If the .question were inequity and subject to be adjudged by the long-settled principles on which rights and titles are there founded and enjoyed, and by which their use and disposal are regulated, the result would neither be novel nor uncertain. The release would operate as a bar in equity. But the inquiry arises on the other side of the court. It is a question of law. And until the act of'1855 it was the general doctrine of the courts of common law that the wife was not capable of enjoying and disposing of her own property at her own election, and moreover that the married pair could not contract directly with each other. The subject is quite fully explained in Burdeno v. Amperse, 14 Mich. 91. But that statute made a great change. It provided that coverture should in no wise disable the wife from selling what was her own, nor in any manner interfere with her disposal of it. No distinction is made between kinds of property. The language takes in all without exception. Now, since the right in questioñ is her property, and is a legitimate subject' of sale, why may she not part with it in point of law to whomsoever holds the title to which it is germane ? And since husband and wife may now by the rules of law, as well as those of equity, make mutual contracts with regard to property, and sell and deed to each other (Burdeno v. Amperse, supra; Ransom v. Ransom, 30 Mich. 328) why may she not sell and release directly to her husband ?

“No reason is perceived that would not infringe the spirit of the legislation of 1855. By means of that enactment, the faculty to transact, and the'fact transacted, which were antecedently pure matters of equity, were legitimated at law and clothed with the attributes of law. The consequential effect of the act of release upon the future of the right can present no objection.

“ That the act in which she parts with' the right, and so disposes of it, does at the same time determine it, is not an obstacle. These consequences are the due expressions of opposite sides of the same fact. The object aimed at is to cause a cessation of the right, and not an existence of it in new hands. The sale being made fairly, and in accordance with the dictates of equity, and regularly carried out by deed on one side and exemplary performance on the other, the transaction operates by way of release of the right in contemplation of law, and implies an obligation not to reassert it.

“ It is very naturally suggested that this view is not consistent with the opinion which the legislature is presumed to have entertained when they passed the act of 1877, providing that the wife might bar her dower by her separate deed to whomsoever was the holder of the husband’s title. Act No. 65, Pub. Acts 1877. If the wife, it is said, was already able to dispose of this right by her sole deed, it was needless to re-enact authority for her. .This argument is not without force, but it is not controlling. The principles which underlie the case will not submit to it. It has happened here, as in some other instances in the history of legislation, that the legislature has proceeded on an inaccurate opinion of the true meaning and proper scope of an existing law. Talbot v. Seeman, 1 Cranch (U. S.), 1-35; Postmaster General v. Early, 12 Wheat. (U. S.) 136-148; Jackson v. Phelps, 3 Caines (N. Y.), 62-68, 69, per Kent, C. J.; Mersey Docks v. Cameron, 11 H. L. Cas. 443-518; Van Norman v. Jackson Circuit Judge, 45 Mich. 204. According to these views the circuit court should have entered judgment for the defendant.”

This sustained a deed of the wife in which the husband did not join, and therefore held that a literal interpretation should not be required. In the earlier case of Randall v. Randall, 37 Mich. 566, this court sustained the validity of a wife’s deed of her dower and homestead rights, made upon a sufficient consideration. In speaking of the dower right, which, in Ring v. Burt, was said to be of similar nature to homestead interests, the court said: “ The release was perfectly good in equity, whether it was in law or not. ” And the conveyance was sustained. This was also an action at law, viz., assumpsit.

In Penfold v. Warner, 96 Mich. 181, we recognized this rule by saying:

“ As the title then stood, Barbara E. Zimmerman had no title in the premises. She had an inchoate right of dower, which she might release by joining with her husband in a deed of the premises, or by her conveyance to the holder of the title. Rhoades v. Davis, 51 Mich. 306. It was not an interest that could be conveyed by her so long as the husband held the title to the fee.”

See, also, Dakin v. Dakin, 97 Mich. 286, where there is an extended discussion as to the wife’s right to contract in relation to such interests. Whatever may be thought of the rule as to homesteads, these cases may reasonably be thought to justify the rule that in equity a wife’s deed of an inchoate right of dower to one having an equitable title to the fee of the land, made for a valuable consideration, conveys her interest to the extent of the equitable interest conveyed by the husband, and no good reason is suggested for a contrary holding in relation to her homestead rights. We are therefore of the opinion that the contract made by the husband, accompanied by the quitclaim deeds made by the wife, constituted a valid land contract enforceable in equity against both.

It becomes necessary to consider the further question of adequacy of a legal remedy. The defendant denies that the complainant has any title either legal or equitable, but asserts in his answer that the bill should be dismissed, for the reason that there is an adequate remedy at law. Passing the questions arising out of these apparently inconsistent claims, and the rule that one who answers to the merits cannot raise the question (see Lothrop v. Duffield, 134 Mich. 492; Berdan v. Insurance Co., 136 Mich. 405, and cases cited), and the rule that where equity takes jurisdiction for one purpose, as the issue of an injunction, it will retain jurisdiction and dispose of the case though an adequate legal remedy might have been had, all or some of which may or may not be properly applicable to this case, we will take-up the question of an adequate legal remedy.

The deeds of the wife made in 1879 did not convey a legal title to her dower and homestead interests, for the reason that the grantees had no other legal interest or estate in the premises. Penfold v. Warner, 96 Mich. 179, and other cases cited. The deeds of the husband, though made in 1900, were invalid at law under the homestead law, not being signed by the wife; her former deeds being effective only as contracts. The status, then, was that the complainant was still in occupancy under a land contract made by husband and wife, invalid under the statute of frauds, but subject to enforcement specifically in equity. Then followed the deeds from the guardian'of the wife. These deeds, if effective to convey her interest, the husband being dead (which we need not decide), did not make valid the deeds given by the husband, which were void at law when given, so that in any event, the complainant had not the legal title of which the husband died seised; and the contract not being available as a defense to the ejectment, there was no adequate legal remedy.Hence the propriety of a proceeding in equity to enforce this contract and quiet complainant’s title. The bill might have been more specific in its allegations and prayer, but it states all necessary facts to support a decree of specific performance, and the general prayer will cover such relief.

A decree should be entered adjudging complainant to have the equitable title to the premises, specifically enforcing said contract, and requiring the defendants to quitclaim to the complainant all of their interest in the premises within 10 days, and that this decree or a record thereof in the office of the register of deeds of said county, where it may be recorded, shall be evidence of complainant’s title. The complainant should recover costs of both courts.

Grant, J., concurred with Hooker, j,


author: Hooker, J.

text:
    McRAE v. AUDITOR GENERAL.
    1.. Limitation op Actions — Claims Against State.
    The claim of a private person against the State is subject to the same statute of limitation that the same claim against another private person would be.
    3. Mandamus — Propriety — Tax Sale — Compelling Repund— Limitations.
    Mandamus being a discretionary writ, issued only in furtherance of justice, will not issue to compel the auditor general to refund the taxes paid by the purchaser of the State’s bid at a tax sale, where an action of assumpsit on the claim, if otherwise maintainable, would be barred by limitations.
    Mandamus by John MpRae to compel James B. Bradley, auditor general, to refund certain taxes paid as a condition of purchase of a State bid.
    Submitted October 31, 1906.
    (Calendar No. 21,340.)
    Writ denied December 17, 1906.

      Oswald H. Reed, for relator.

      John E. Bird, Attorney General ( Charles W. McGill, of counsel), for respondent.
   Hooker, J.

Certain property was returned delinquent for the taxes of 1894, 1895, and 1896. In December, 1896, the premises were bid in to the State for the tax of 1894, under the general tax law, and on August 24,-1897, the relator purchased the State’s bid for the tax of 1894, and received the usual certificate of purchase, stating that if such premises should not be redeemed before the first Monday in December, 1897, he would be entitled to a deed; if they should be redeemed before that time he would be entitled to the redemption money, or to the amount of purchase with interest at 8 per cent., etc. The land was redeemed from the sale for taxes of 1894 on an application filed November 10, 1897, and on February 7, 1898, there was refunded to relator the amount of the State bid, but not the amount of the taxes for 1895 and 1896, which he was compelled to pay as a statutory condition upon which he might purchase the State bid. On March 5, 1898, he applied for such payment and was refused it. He now applies for a mandamus to compel such refunding, his petition having been filed August 10,1905. The auditor general answers, contending, first, that relator was not entitled, under the statute, to such refunding; second, that his claim is barred by the statute of limitations.

The claim of the relator arises from a contract of purchase, his contention being that, by the terms of the statute under which it was made, the subsequent redemption gave him a right to have the consideration paid refunded by the State. Were this a claim against a private person, assumpsit would be his remedy, and an action would be barred in six years from the time when the right accrued. In such a case mandamus would not lie, for want of another remedy. If it may be resorted to here, it must be upon .the ground that an action cannot be brought against the State by a private person, and that mandamus is a proper remedy by which that rule may be avoided, if not evaded. To this must be added the claim that the statute of limitations must be restricted to actions of debt or assumpsit, and has no application to a case where mandamus may be made to perform the function of such an action, inasmuch as mandamus is neither an action of debt nor assumpsit.

No good reason is suggested for saying that the claim of a private person against the State should not be subject to the same statute of limitation that the same claim against another private person would be. On the contrary, the rule that the government may plead such statutes prevails generally. See Cowles v. State, 115 N. C. 173; Baxter v. State, 10 Wis. 454; Stanley v. Schwalby, 85 Tex. 353, s. c., 147 U. S. 508; Smith v. Auditor General, 80 Mich. 215. See, also, 19 Am. & Eng. Enc. Law (2d Ed.), pp. 191 and 192. •

Were this a suit in equity, the rule that equity follows the law would apply, and the statute would in effect be applied by analogy. Such has been the holding of this and many other courts. Especially “where a party has once had an adequate remedy at law, of which he might have availed himself in the ordinary forum, equity will deny any relief to him because of his own laches and neglect, whatever the intrinsic merits and equities of his case may be, and will not permit him so to evade the plain provisions of the statute.” 19 Am. & Eng. Enc. Law (2d Ed.), p. 157, and note; Blanchard v. Church, 47 Mich. 644; Jenny v. Perkins, 17 Mich. 28; Smith v. Davidson, 40 Mich. 632; 2 Beach on Trusts and Trustees, § 668.

To all intents and purposes this writ is made to play the part of an action at law against the State. The writ of mandamus is a discretionary writ, and will not be issued when inconsistent with justice. To that extent, though a legal process, it is governed by equitable principles, and should not be used where legal redress would ordinarily be barred by the statute of limitations. The equitable doctrine of laches should in such case be applied.

The relator has permitted his claim to rest for more than seven years, and it should be treated as a stale claim. As this will dispose of the proceeding, it is unnecessary to discuss the other questions.

The writ is denied.

McAlvay, Grant, Blair, and Moore, JJ., concurred.