text:
    BUTTERS v. BUTTERS.
    1. Judicial Sales — Setting Aside — Chancery Jurisdiction.
    A court of chancery has inherent power to set aside sales made by its order, whether the property is bid in by a party to the suit or by a stranger.
    2. Same — Chancery Sales — Practice.
    Chancery practice requires every sale to be reported to the court and an order confirming it.
    3. Same — Setting Aside — Remedy.
    Where it is sought to vacate an order confirming a chancery sale and to obtain a resale of the property, the manner of bringing a grievance to the attention of the court is not of particular importance so long as new rights have not intervened and the original parties to the suit and the purchaser have notice and opportunity to be heard.
    4. Same —Petition—Sufficiency.
    Where, on a petition to open a chancery sale, an affidavit of the non-residence of the purchaser was made, an order for his appearance was made and published, and it appears that he had notice of the proceeding, no reason appears to deny the power of the court to determine the matter presented by the petition upon the merits, if complainant was within the jurisdiction of the court.
    5. Judgment — Res Judicata — Decision not on Merits.
    A former adjudication of the matters put in issue by an original bill to set aside a chancery foreclosure sale does not appear where the former proceeding was by petition in the foreclosure suit which was dismissed because not the proper remedy.
    6. Same — Matters Concluded.
    On a bill to set aside a chancery foreclosure sále, filed by the divorced wife of the mortgagor, complainant’s claims of homestead rights in one of the lots,‘and of a right to have the other first sold, do not commend themselves to the court, where such claims were not presented in the foreclosure suit, and complainant is claiming rights based upon a deed subsequently given her by her husband in settlement of their property rights.

      7. Mortgages — Foreclosure—Sale—Several Parcels — Separate Sale — Necessity.
    Whether Act No. 200, Pub. Acts 1899, requires lauds sold under the usual decrees made by courts of chancery to be sold in parcels, will not be determined in a case in which it appears that though two lots were sold as one parcel, and that there . were two houses and a barn thereon, one of the houses stood upon both lots, and a portion of one of the lots had been otherwise used with the other lot.
    8. Same — Commissioner’s Deed — Filing—Delay—Effect.
    A chancery foreclosure sale will not be set aside because the commissioner’s deed was not filed in the office of the register of deeds within 20 days, as required by Act No. 200, Pub. Acts 1899, since the files and records in the office of the register in chancery furnish the most complete information upon the subject.
    9. Same — Collusive Foreclosure — Evidence—Sufficiency.
    On a bill by a divorced wife to set aside a chancery foreclosure sale of lands upon which she had joined with her husband in giving a mortgage, evidence examined, and held, not to show such collusion between the husband and his brother, who purchased at the sale, as would justify setting aside the sale and allowing the complainant to redeem.
    Appeal from Wayne; Donovan, J.
    Submitted January 8, 1908.
    (Docket No. 11.)
    Decided June 27, 1908.
    Bill by Janet Butters against George Butters and Adam Butters to set aside a sale under foreclosure proceedings. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Charles C. Stewart (Ronald Kelly and William S. Thomas, of counsel), for complainant.

      Henry C. Walters, for defendant George Butters.
    The bill was filed in December, 1905, or January, 1906, to set aside a sale of premises made in foreclosure proceedings under a decree of July 1, 1902. The sale took place September 13, 1902. The grounds of relief stated are (1) that the premises should have been, and were not, sold in parcels; (2) that the commissioner’s deed was not recorded until after the statutory period of redemption had expired. It is prayed also that the commissioner’s deed may be held to operate as an assignment of the mortgage and the decree of foreclosure, that an accounting of the rents and profits of the real estate may he taken, and that after such accounting a decree be made for a sale of the premises, this bill be treated as a bill to redeem, and if complainant pays the amount found to be due she may be subrogated to the rights of the mortgagee and authorized to sell one of the parcels to reimburse herself under a certain agreement made with defendant Adam Butters. Defendants have filed separate answers and defendant George Butters also filed a plea of former adjudication of all matters now put in issue. Adam Buttefcs is the husband of complainant, George Butters is Adam’s brother. In December, 1895, Adam owned lots numbered 264 and 265, at the corner of Magnolia street and Fourteenth avenue, in the city of Detroit. Lot 264, as occupied, encroached, in fact, upon lot 265, the house thereon standing partly upon lot 265. The mortgage in question was executed by Adam and complainant, his wife, December 23, 1895, conveyed both parcels of land by legal description, and it secured payment of $2,000 in two years and interest at six per cent. The mortgagors were, with their children, then occupying the parcel known as lot 264. The foreclosure bill was filed October 7, 1901, the mortgagors were made defendants and were served with process. Complainant appeared by her solicitor, did not answer, and the bill was taken as confessed. The property was sold as one parcel to defendant George Butters, who was a judgment creditor of his brother .and had levied upon the mortgaged premises, for $2,253.71, which was the amount decreed to be due. He was represented at the sale (he was not present, and is resident in Canada) by his attorney, to whom manual delivery of the commissioner’s deed was made. The deed was not recorded in the office of the register of deeds until March 23, 1903. During the period allowed by law for redemption, complainant, by her solicitor, visited the office of the register of deeds, made inquiry and was informed that the deed was not a matter of record at the office. No tender was made. She never proposed to redeem more than lot 264. Later (July 16, 1903), complainant filed a petition in the foreclosure suit to set aside the sale, upon the ground that the property should have been sold in parcels, that the deed was not recorded in due season, and that there was fraud and collusion on the part of defendants to deprive her of rights. There was an affidavit of the non-residence of George Butters, an order for his appearance was made and was published. He did not appear except specially to move to set aside an order setting aside the sale. Relief was finally denied October 26, 1905. Whatever force and effect the order dismissing the petition had, it still has; it has not been set aside. When the mortgage was executed, lot 265 was worth, it is claimed, $4,500 and lot 264, $2,500, and that complainant was induced to sign the mortgage on the representation and understanding that in case a foreclosure occurred lot 265 must be first sold. In October, 1901, complainant filed her bill against her husband to obtain separate maintenance and after a contest a decision in her favor was made, on or about November 6, 1902, by which she was, among other things, given lot 264, subject to $1,000 of the incumbrance. Negotiations between the parties ensued, resulting in a settlement, made November 17, 1902, by the terms of which lot 264 was to be and was deeded to complainant, and she released to Adam her dower right in lot 265, Adam covenanting to pay and discharge all liens, including the mortgage, upon lot 264. The suit for separate maintenance was discontinued, no decree having been entered. One of the instruments made and signed at this time is here set out:
    “This indenture, made this seventeenth day of November, 1902, between Adam Butters and Janet Butters, both of Detroit, Michigan, witnesseth, that whereas said parties in pursuance of an agreement of settlement between them, have this day exchanged deeds, whereby the fee of lot 264, private claim 726, is conveyed to said Janet Butters, and lot 265 of the same subdivision is conveyed to said Adam Butters, free of dower of the part of said Janet Butters, and whereas, the said parties have agreed that it is desirable that said lots be held together and not sold separately, or without the consent of both parties, now, therefore, the said parties hereby mutually covenant and agree, each with the other, that neither will without the other’s consent in writing, at any time during their respective lives, or before the death of one or the other, sell, or offer for sale either of said lots, without first giving the other of said parties the opportunity to purchase the same upon the same terms, it is further agreed as a part of the settlement above referred to, that in case the said Adam Butters shall fail to pay the interest and principal of the mortgage and lien referred to in the annexed agreement, the said Janet Butters, upon making any payments on account thereof, shall be deemed subrogated to all the rights of said mortgagee against said Adam Butters.
    . “In witness whereof, said parties have signed this agreement, the day and year first above written.”
    It is asserted by Adam, and denied by complainant, that a part of their understanding and agreement was that marital relations were to be resumed. Complainant charged that her husband, proposing and endeavoring to defraud her, enlisted his brother’s aid, and that the judgment procured by George against Adam, the levy, the sale of the property in a single parcel, are events in the collusive undertaking. Within six months after the sale, complainant saw George Butters and without success sought an arrangement which would permit her to mortgage for $1,000, and so redeem, lot 264 from the foreclosure. Adam, after deeding the property to his wife, collected rents from lot 264 and, for a time, sent them to complainant. Refusing then, or neglecting, to send them, she appointed an agent who notified the tenant to thereafter pay him the rent. It was claimed by the tenant, when demand was next made for rent, that Adam had forbidden payment to the agent. Summary proceedings to oust the tenant followed. From a judgment of ouster, an appeal was taken to the circuit court where the judgment was affirmed. It was after Adam had refused to send her the rent money that complainant interviewed George Butters, showed him the deed from her husband, and asked him to permit her to burden her property as has been stated. It was after his refusal of her request that she arranged for a loan from a person in Detroit, who upon examination failed to find the commissioner’s deed recorded. He wrote to George Butters about the matter, after which the deed was found and recorded. It was not proposed to redeem all of the property, but lot 364 only. Upon learning the facts, the proposed lender of the money was of opinion that the deed was void.
   Ostrander, J.

(after stating the facts). As the record before us is understood, the petition (it seems also to have been called a bill) of complainant to set aside the foreclosure sale contained, in substance, the same averments found in the bill now filed. It was answered by Adam Butters. George Butters was made a party and being then, and now, a resident of Canada, an order for his appearance was made and duly published and he appeared and moved to dismiss the petition upon the ground that an original bill should have been filed, since the purchaser at the foreclosure sale was not a party to the foreclosure suit. The order made in that matter, dated October 33, 1905, reads:

“This matter came on to be heard on application to dismiss the petition filed by the defendant, Janet Butters, on the 16th day of July, 1903, to set aside the foreclosure sale under the mortgage referred to in the complainant’s bill of complaint, had on the 13th day of September, 1903, and all the persons interested in said application being present in court and represented by their respective counsel, and the court having heard the arguments of said counsel; ordered that the said petition be and it hereby is, dismissed, without costs. ”

Counsel for Mrs. Butters in that proceeding testified in the case at bar that they were convinced that they had mistaken their remedy and supposed an order would be entered so stating. It would appear that the case of Crawford v. Tuller, 35 Mich. 57, was regarded as decisive of the question. It appears, also, that the complainant in the foreclosure suit was beyond the jurisdiction of the court and she had the money paid by the purchaser at the foreclosure sale. See, also, Bending v. Auditor General, 137 Mich. 500; Jewett v. Morris, 41 Mich. 689. It will be noticed that in all of these cases the decree was attacked and sought to be set aside. In the case at bar, the decree is not attacked. A court of chancery has inherent power to set aside sales made by its order whether the property is bid in by a party to the suit or by a stranger. Indeed, the practice requires every sale to be reported to the court and an order confirming it. And if it is sought to vacate a confirming order and to obtain a resale of property, the manner of bringing a grievance to the attention of the court is not of particular importance so long as new rights have not intervened and the original parties to the suit and the purchaser have notice and opportunity to be heard. In the matter of the petition to open this sale, an affidavit of the non-residence of the purchaser was made,.an order for his appearance was made and published, and that he had notice of the proceeding is evident. No more has been done in the pending case. There does not appear- to be any reason to deny the power of the court to determine the matter presented by the petition upon the merits, if complainant was within the jurisdiction of the court. But if she was not, and if that was a ground for refusing relief, it is singular that, having now pursued the method of filing an original bill, the complainant in the foreclosure suit should not be made a party defendant. We shall assume that the matter of the petition to set aside the sale was not determined on the merits and that the plea was properly overruled.

The case affords abundant evidence of the wisdom of the rules which require parties to litigation to use the opportunities afforded them to assert their rights, to discover and promptly inform the courts of irregularities. We are not impressed with the testimony introduced to show that when the mortgage foreclosure was begun, complainant had homestead rights in lot 264. She is now asserting rights based upon her deed of the lot. But if she claimed such rights she should have presented the claim in the foreclosure case and this is true, also, of her right, if she had it, to have lot 265 first sold to satisfy the mortgage. Before and during the period of the foreclosure proceeding, complainant and her husband were adversaries. She sought to have allowed to her a portion of this property. Lot 264 was awarded her, subject to a lien of $1,000. Her divorce suit was pending in the same court which had jurisdiction of the foreclosure suit. It does not appear that the judge who allowed her alimony had his attention called to the fact that a sale of the premises occurred two months earlier. The purchaser, a stranger to the foreclosure suit, had bid in the property and paid the mortgage indebtedness. And complainant did not accept the provision made for her by the court. Instead, she accepted a deed from her husband of lot 264 and his covenant to pay the liens thereon. Both her deed and her husband’s separate undertaking recited the fact that George Butters was then the lien holder, and that both lots were subject to these incumbrances. Becoming satisfied later that her husband did not propose to protect her, she set about securing lot 264 discharged from the incumbrances, first by application to George, later by borrowing money to redeem her own lot from the foreclosure sale. It does not appear that she ever intended to redeem lot 264 from the levy.

It is contended that the sale was void. We need not inquire whether Act No. 200, Pub. Acts 1899, requires lands sold under the usual decrees made by courts of chancery to be sold in parcels, making the decisions of this court in Lee v. Mason, 10 Mich. 403; Udell v. Kahn, 31 Mich. 195, applicable to such sales, because it does not appear that if the sale had been made in a statutory foreclosure proceeding it would have been void. It is true that there are two lots and two houses and a barn, but one house stands upon both lots, and a portion of lot 265 has been otherwise used with lot 264. Undoubtedly the court might have made a subdivision of the property and provided in the decree for a sale of each subdivision. It did not do so and was not asked to do so. Nor was the court in the divorce proceeding asked to make boundaries of the property, although in the decision made the description was not inserted. The agreement, herein set out, made after the sale, indicates the desirability of a single ownership and holding of the property. Counsel for complainant ask in the brief that defendant George Butters be required to deed to complainant lot 264 as occupied, she paying for a portion of lot 265 at a price to be fixed. When the property was sold, both houses were tenanted. The testimony tends to prove that the conditions were discovered on the day of the sale and that in view of them the commissioner sold the property as one parcel.

The deed, by inadvertence, was not recorded within the period of redemption, and it is contended that this fact and the provisions of Act No. 200, Pub. Acts 1899, bring the case within the rule of Doyle v. Howard, 16 Mich. 261. The reasons given in the opinion in that case for holding the provisions of the statute to be mandatory apply, some of them, with equal force in case of a chancery foreclosure. But the principal and controlling reasons do not apply. Foreclosure proceedings by advertisement are confined to cases in which the mortgage contains a power of sale. The proceedings are wholly ex parte and non-judicial. The office of the register of deeds may be the only place where an interested person may learn whether a sale has been made and of the terms thereof. A chancery foreclosure is a judicial proceeding. There is other written evidence of the sale than that afforded by the deed. The flies and records in the office of the register in chancery furnish the most complete information upon the subject. Judicial confirmation of the sale is required and this may be denied after the deed has been filed with the register in obedience to the statute. Trombley v. Klersy, 147 Mich. 370. Parties to the suit who have been served with the process of the court are permitted and expected to file objections to the report of sale and bring them to the attention of the court. It is not probable that anyone would attempt to redeem from such a sale without acquiring the knowledge disclosed by the record in the foreclosure suit. And one desiring and having the right to redeem, finding no deed of record and unable to reach the accredited purchaser, could protect himself by the information easily accessible, either by a deposit of the necessary amount, or by a proceeding in the court having jurisdiction of the matter. The statute procedure should be followed and it is unnecessary to indicate here the consequences of disobeying it further than this, that one who is a party to the foreclosure suit, who has been neither deceived into inaction nor prevented from redeeming, may not rely upon such disobedience for the purpose of securing a resale of the property. In saying this, we necessarily decline to apply the rule of the case cited to chancery foreclosures. We are of opinion that we have no authority to set aside the sale either because the property was not sold in parcels or because the deed was not filed in the office of the register of deeds.

As to the alleged collusion of Adam and George Butters. The testimony does not lead to the conclusion that defendant Adam Butters was not indebted to his brother George, or that the judgment, the basis of the levy, was not regular and legally effective. His good faith is not inconsistent with regard for, reliance upon, and trust in, his brother. It is probable that Adam would prefer that his brother should secure himself rather than that his wife should succeed in securing a part of the property. His conduct in dealing with his wife, as it is disclosed by the record, warrants the statement.

The land, all of it,- came to Adam from his father, as did the dwelling on lot 265. He is, and for years has been, employed as an engineer at a salary of more than $60 a month. He has no other property. If the domestic problem were eliminated, it is clear that as such matters are usually conducted there need have been no foreclosure of the mortgage. The property was abundant security for the debt, and the income of the husband and the rent of one of the houses furnished money to pay interest. We may assume that if the family relations had remained pleasant, the foreclosure would not have taken place. We may assume, also, that the husband was at fault and the proceeding begun by the wife was a meritorious one. But, as has been pointed out, the debts of the husband and. the demands of the wife against the property rendered the value of his resulting equity wholly uncertain. Unless his debts could be again secured, which would have required the consent of complainant, he could not save the property. It does not appear that complainant ever proposed joint action in this behalf. A carefully studied effort on her part to avoid the use of means calculated to secure for herself a portion of the estate could not have been more successful in defeating what the court is now asked to bring about. How she expected her husband to perform the covenant she accepted from him with her deed of lot 264, is not disclosed. He could have performed it by securing the money, if that was possible, as a loan upon a portion of lot 265. Assuming that lot 265, as occupied, is worth $4,500, there would have remained to him an interest in the property worth about $1,000 to be secured only by payment .of an annual interest charge of more than $200 and an eventual payment of the principal, or sale of the premises. Complainant, by the same means, would have received premises worth $2,500. It may be said that the legal obligation of the husband required him to attempt to pursue the course suggested. That he did not do so is not a ground for divesting the purchaser of his title acquired at the foreclosure sale and ordering a resale of the premises.

While a reading of the record excites sympathy for complainant, it does not make out the case stated in the :bill of complaint. We feel obliged to affirm the decree of the court below, with costs to defendant George Butters.

Blair, ■ Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
      In re WARD’S ESTATE.
    Executors and Administrators.
    This case is ruled by In re Ward’s Estate, 152 Mich. 218, be tween the same parties, and involving the same questions.
    Error to Oakland; Smith, J.
    Submitted January 7, 1908.
    (Docket No. 2.)
    Decided June 27, 1908.
    Charles W. Ward appealed from an order of the probate court allowing the first annual account of Willis C. Ward, Franklin B. Ward, and George K. Root, executors of the last will and testament of David Ward, deceased. There was judgment disallowing the account in part, and the executors bring error.
    Reversed.

      Chamberlain & Quise (Elliott Q. Stevenson, of counsel), for appellants.

      John H. Patterson (Watts S. Humphrey and H. M. Qillett, of counsel), for appellee.
   Blair, J.

This appeal relates to the disallowance by • the circuit court of said trustees’ first annual account and was heard by the circuit court at the same time as the appeal from the allowance of said trustees’ third annual account. Both cases were brought to this court for review and submitted at the same time. The principal brief was filed in the case relating to the third annual account, with the request by both parties that it be considered in this case. The opinion filed April 1, 1908, 152 Mich. 218, necessitates the reversal of this case, and the judgment is, therefore, reversed, with costs, and a new trial granted.

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


author: McAlvay, J.

text:
    GROAT v. DETROIT UNITED RAILWAY.
    1. Pleading — Amendment—Declaration—Ad Damnum — Propriety.
    Where the statement of the amount in the ad damnum clause of a declaration was inadvertently left blank, an amendment supplying the defect, asked and allowed before the jury was selected, was proper. Section 10268, 3 Oomp. Laws.
    2. Process — Amendment—Summons—Ad Damnum — Conformity to Declaration.
    An amendment of the summons in a personal injury case as to the damages claimed, to make it conform to the ad damnum in the declaration, is allowable in the discretion of the court (§ 10268,3 Comp. Laws), no surprise being claimed, or continuance and terms demanded.
    3. Damages — Pleading and Proof — Personal Injuries.
    A declaration in an action for personal injuries alleging that plaintiff was “greatly injured and bruised internally ” will permit proof of permanent injuries to the uterus, not otherwise specifically alleged.

      4. Same — Personal Injuries — Evidence—Suppioienoy.
    In an action for personal injuries consisting among others, of injury to the spinal cord and nerves, evidence examined, and held, that an instruction that there was no evidence of the injuries stated, and that plaintiff was suffering only from a functional and not an organic disorder, was properly refused.
    5. Saving Questions por Review — Reasons por Ruling — Failure to Request.
    Error in overruling a motion for a new trial on the ground of excessive verdict cannot be considered where no reasons were given by the trial court for its ruling and none were requested.
    Error to Wayne; Brooke, J.
    Submitted January 16, 1908.
    (Docket No. 68.)
    Decided June 27, 1908.
    Case by Catherine Groat against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Alex. J. Groesbeek and Edwin Henderson, for appellee.
   McAlvay, J.

Plaintiff recovered for personal injuries which she claimed to have sustained while riding as a passenger on one of defendant’s cars when it collided with another of defendant’s cars.

There was no dispute in the case upon the question of defendant’s liability. The controversy in the case was as to the amount of damages plaintiff under her declaration was entitled to recover. The suit was begun by summons in which the amount of damages claimed was $10,000. The declaration filed later set forth certain specific items for hospital bills, medical attendance and medicines; also loss of wages from inability to work. In the ad damnum clause no other or further sum was named, the space in such clause for the insertion of such sum being left blank. Before the trial a motion was made to amend the ad damnum clause by inserting the sum of $25,000 in the blank space in the declaration and also to amend the summons by substituting $25,000 for $10,000 damages as therein claimed. Both amendments were allowed by the court over the objection of defendant and an exception was taken. For this and other errors assigned, defendant by writ of error has brought the case to this court and asks for a reversal.

The amendment to the ad damnum clause of the declaration and to the summons was asked and allowed before the jury had been selected. It cannot be claimed that this affected the cause of action upon which suit was brought. The omission to state the amount in the declaration was evidently an'oversight and the amendment was clearly allowable under the statute, section 10268, 3 Gomp. Laws. To allow the amendment to the summons, to make the damages claimed conform with the declaration, was also, under the same statute and numerous decisions of this court, within the discretion of the trial judge. The record does not show that any surprise was claimed or that a continuance and terms were demanded. The motion was properly granted. Borden v. Clark, 26 Mich. 410.

Complaint is made that the court improperly allowed evidence in the case tending to show permanent injury to the uterus, and also allowed the jury to take this into consideration in determining plaintiff’s damages, the claim being that plaintiff’s declaration was not sufficiently specific to include such injuries. The plaintiff’s declaration alleges among other things:

■ “ That she was greatly hurt, cut, bruised and injured in and about the face, head, body and shoulders and was greatly injured and bruised internally and in consequence thereof and from the effects of which the said plaintiff became and was sick, sore, and lame, disordered and seriously and permanently injured and suffered a permanent injury to the spine involving the spinal nerves and the deep fibrous structure of the spine, * * * that by reason of the injuries aforesaid she has * * * suffered great bodily pain * * * and will continue to suffer * * * for the remainder of her lifetime.”

It appears from the record that the principal contest in the case was relative to the extent and permanency of the nervous disease from which plaintiff is suffering. That fact would not deprive plaintiff of the right to recover other injury if the evidence objected to was competent and admissible under the declaration. The testimony of the attending physician was positive that this condition of the uterus was “ due to results from the injuries she received in the accident.” We think the declaration sufficient to warrant receiving the evidence.

In Montgomery v. Railway Co., 103 Mich. 46 (29 L. R. A. 287), this court in citing and approving the rule laid down in Johnson v. McKee, 27 Mich. 471, after distinguishing the latter case from Shadock v. Plank Road Co., 79 Mich. 7, and other cases, said:

“ It will be seen that the rule thus laid down does not require plaintiff to aver all the physical injuries which he sustained, or which may have resulted from, or have been aggravated by, the tort, even though they do not necessarily result from the original injury. If such injuries can be traced to the act complained of, and are such as would naturally follow from the injury, they need not be specifically averred.”

We do not agree with defendant that the injury referred to must be shown to have been the result of the injury to the spine. The injury to the spine and the consequent nervous prostration, and the injury to the uterus were both received at the time the cars collided and plaintiff was struck upon the back by the falling roof of a car. The declaration charges that she was also “greatly injured find bruised internally.” The trial court was correct in holding that under the declaration the evidence was admissible.

Defendant also had every opportunity freely given for a personal examination of plaintiff to discover the injuries from which she was suffering, and its surgeons made such examination long before the trial of the case, therefore no claim of surprise could be made as to conditions then existing.

Defendant requested the court to charge that there was no evidence of any injury to the spinal cord or any injury to the nerves themselves; and also that plaintiff was suffering only from a functional and not an organic disorder. These requests were properly refused. There was abundant proof in the case from which the jury could find that the nerves were injured and that the trouble was organic. Dr. Kennedy testified:

“There are probably six or seven of these nerves involved. * * * In my opinion the nerve itself, the integrity of the nerve, is involved. * * * They are pinned down tight so that they do not perform their functions properly. * * * They are bound down with adhesions that have occurred with the injury to the sheath. * * * I am convinced beyond a question of a doubt that this girl is suffering from what is known as traumatic neurasthenia, commonly known as nervous prostration, and that such nervous prostration is the result of an organic change and that it is permanent. I think the seat of the organic change is at the point that I have described. * * * ”

A motion for a new trial was made, which included as one of the reasons why the verdict should be set aside, that it was excessive. No request was made of the trial court to file reasons for overruling the motion, and none were given. This court has repeatedly held that it cannot in such case consider error assigned upon such refusal. Moerman v. Clark-Rutka-Weaver Co., 145 Mich. 540.

Error is also assigned upon remarks of counsel for plaintiff in his argument to the jury, on the ground that they were prejudicial. An examination of the parts of the argument objected to satisfies us that they were made in the heat of the argument, and that counsel himself made an honest attempt to correct any wrong impression they might have made. We cannot say that the language, although not in good taste, was of such a nature as to prejudice the jury against defendant.

The other errors assigned do not require discussion.

The judgment is affirmed.

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


author: MoAlvay, J.

text:
    RUSSELL v. CARPENTER.
    1. Cancellation of Instruments — Mental Incapacity — Undue Influence — Evidence—Sufficiency,
    To warrant the setting aside of a conveyance on the ground of mental incapacity and undue influence and duress, the evidence must be more substantial than sufficient to raise in the mind a suspicion that such conditions existed, a fair preponderance of the proof being necessary in such a case as in any other.
    3. Same — Evidentiary Facts — Cogency.
    The fact that those entitled to receive the bounty of a decedent have not been equally remembered is not, of itself, sufficient evidence of mental disturbance, or of improper and vicious conduct on the part of those most favored.
    3. Same — Evidence—Sufficiency.
    On a bill to set aside a deed and a change in the beneficiary of a benefit certificate, on the ground of mental incompetency and undue influence, evidence examined, and held, insufficient to establish that the grantor was incompetent or under restraint or undue influence.
    Appeal from Livingston; Miner, J.
    Submitted January 17, 1908.
    (Docket No. 85.)
    Decided June 27, 1908.
    Bill by Cora L. Russell and Eva J. Gibson against Bert Carpenter, the Knights of the Modern Maccabees, and others, to set aside a deed and a change in the terms of a benefit certificate. From the decree rendered, comr plainants and defendants Carpenter appeal.
    Reversed, and bill dismissed.

      Louis E. Howlett and George Pardee, for complainants.

      William P. Van Winkle and E. C. Shields, for defendants.
   MoAlvay, J.

The bill in this cause was filed by complainants against defendant Bert Carpenter, his wife, and the Knights of the Modern Maccabees, for the purpose of setting aside a certain deed made by the father, Samuel Carpenter, to the principal defendant, and for setting aside a certain benefit certificate issued by the Maccabees naming said defendant as beneficiary in the place and stead of a former certificate taken out by the father in favor of his wife, afterwards deceased. Complainants claim that such transfers were made when their father was mentally incompetent, and because of the undue influence of the son.

The complainants and defendant Bert Carpenter are the sole heirs at law of Samuel Carpenter, deceased. He lived with his wife and family upon a farm in Livingston county for many years. He owned about 120 acres of land, but sold one 40 acres leaving 77 acres. His wife died in 1894. She had a benefit certificate in the Maccabees for $1,000 payable to the son.

After the wife’s death, Samuel Carpenter and the son, Bert, lived together on the farm until the son married, the old gentleman doing the housework. The son married in December, 1902, after which time, until his death, the father, the son and his wife composed the household.

On March 10, 1906, Samuel Carpenter made a will providing a legacy of $250 for each of complainants, payable one-half in two years and one-half in three years after his death, without interest, making such legacies a charge against his farm until paid. The balance of his estate, real and personal, he devised to his son, Bert Carpenter, and appointed him executor.

Samuel Carpenter was first taken with his last sickness in February or March, 1906. He became well enough in June to make a visit of two weeks to his daughter Mrs. Gibson. After his return he gradually grew weaker and was confined to his room and bed for most of the time after August 1st until December 7th, when his death occurred. From the beginning of April until his death medical attendance was required practically all of the time. During this time he remained on the farm, and was cared for by his son and wife, and by both complainants, who apparently gave such time as their duties to their families permitted.

The change making the benefit insurance payable to the defendant Bert Carpenter occurred September 18, 1906, and the deed in dispute was executed and delivered October 16, 1906.

Upon the hearing of the case the court granted relief as to the benefit certificate, setting it aside on account of undue influence and insufficient mental capacity and holding the first certificate to be in force and effect, and denied relief as to the deed in question, holding that the transfer was the free, voluntary act of deceásed, with mental capacity to perform the same. These two transfers practically disposed of all of the estate of Samuel Carpenter, and is all of the property in dispute in the case. Both parties have appealed from the decree of the circuit court.

The case presents the usual features of cases of this kind, where a dispute arises between heirs who have not received equal consideration in the disposition of a parent’s estate.

To determine that mental incapacity exists, and that undue influence and duress have been exercised, it is necessary that evidence should be more substantial than sufficient to raise in the mind a suspicion of such conditions. Courts do not consider that the fact that those entitled to receive the bounty of a decedent have not been equally remembered is, of itself, sufficient evidence of mental disturbance or improper and vicious conduct on the part of those most favored. A fair preponderance of the proof must be furnished to establish such facts, the same as is necessary to establish any other fact. In this case there is much proof to show that some feeling existed between these children. It is evident that the son was not at all pleased with the terms of the will his father had made, and there is also evidence tending to show at least a willingness on his part to have the property disposed of otherwise. He was a coarse, profane fellow, and the undisputed evidence shows that the language he frequently used towards his father was disgraceful and shocking.

The question for us to decide is one of fact. To digest the evidence in this record will be of no benefit to the profession. Our conclusion from an examination of the entire record is that the complainants have not established that decedent at the time either or both of the transactions in dispute occurred was mentally incompetent or under restraint and undue influence. The positive and substantial evidence in the case satisfies us by a fair preponderance that such was not the case, and that Samuel Carpenter, at the time he procured the change in the benefit certificate, and when he executed the deed reserving a life interest, was competent to perform these acts, and that he acted of his own free will.

The decree of the court setting aside the benefit certificate is reversed, and a decree will be entered in favor of defendants. The bill of complaint will be dismissed and the injunction dissolved. Defendants will recover costs of both courts.

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


author: Hooker, J.

text:
    LYNCH v. SAGINAW VALLEY TRACTION CO.
    1. Master and Servant — Personal Injuries — Risks Assumed— Conduct oe Business.
    A master may conduct his business in his own way, and, unless a servant wishes to assume the risks of such method as his master has adopted, he should refuse to enter upon the employment, or leave it upon discovering the method, and a servant, knowing the hazards of the employment as the business is conducted, cannot recover for injuries received, on the ground that there was a safer way of conducting the business, which, had it been adopted would have prevented the accident.
    2. Same — Method oe Inspection.
    An experienced lineman, in the employ of an electric railway company, who knew that it was the practice of the company to make no separate inspection of poles, but to rely upon such as the linemen should make when occasion required them to work upon them, and that all changes of and repairs upon poles were made by the crew, in which he participated, assumed the risk of injury resulting from the employer’s method of inspection.
    3. Same — Custom—Evidence—Admissibility.
    In an action by an electric lineman against' his employer, an electric railway company, for personal injuries, based upon alleged negligence on the part of the company in failing to provide proper inspection of its poles, evidence that it was the universal custom of such railway companies to omit other inspection than that made by their repair crews, such as the crew with which plaintiff was working, was admissible on the question of assumption of risk.
    Error to Saginaw; Gage (Chauncey EL), J.
    Submitted January 24, 1908.
    (Docket No. 156.)
    Decided June 27, 1908.
    Case by Edward Lynch against the Saginaw Valley Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      Weadock & Duffy, for appellant.

      Grane & Grane, for appellee.
   Hooker, J.

The plaintiff was injured by reason of the fall of a pole while at work thereon for the defendant. He recovered a judgment of $500 for injuries sustained, and the defendant has appealed. The pole was one of 8,500 or more set about 15 years before the accident, to carry the span wires supporting the trolley wire of an electric railway. They were set at the time the road was constructed by the defendant’s vendor. The negligence complained of is a failure to inspect.

The accident occurred under the following circumstances : The foreman of the line crew directed the plaintiff and others of the crew to go to a certain street and raise the trolley wire to a height of 19 feet above the street. To do this the high wagon,” as it is called, was driven under the span wires in succession, a man upon the wagon supporting the trolley wire upon his shoulder while the plaintiff climbed poles on each side, substituting for the old span wire a new one which he fastened to the poles at a proper and higher point than the old span wire had occupied. Then the trolley wire was let down upon the new span wire and fastened, care being taken to avoid a sudden contact which would make an unnecessary and dangerous strain on the poles, the weight of the trolley wire at the point of contact being about 100 pounds, under the normal contact. The plaintiff had climbed several poles, and the change had been successfully made at such points. When the trolley wire was let down upon the next one, the weight was too much for the pole, and it broke below the ground and fell with plaintiff. Examination showed that it was badly rotted below ground, within an outer shell of sound wood. Above ground its exterior showed no signs of decay.

The defendant had owned the road about five years, and the evidence shows that it had never provided for any periodical and systematic, or, in fact, any general inspeetion of the poles to ascertain their condition, but had depended upon the linemen to repair or replace them when they should be discovered by them or reported by other employes to be broken. It is conclusively shown that the plaintiff and other linemen knew that such was the practice and that there was no other method of inspection.

Counsel offered to show that this was the universal practice on electric roads, but the testimony was excluded, and in his charge the judge instructed the jury as follows:

“ I charge you that it was the duty of this company, so long a period of time having elapsed since the origin of the interurban system and the setting of these poles — that it was their duty to provide for their inspection in reference to the decay, and that the inspection should be by a class of men or man, so far experienced that they could report to them the condition of the wood itself, as to whether it was safe or not. If they omitted to do this, and it appears that they did nothing in that regard — that is the proof in the case — they failed to discharge a duty that they owed to this lineman in that connection when they gave the order to go to that point as a place to work.”

This was to all intents and purposes equivalent to advising the jury that the defendant was negligent in not providing for the inspéction of its poles by some one other than the line or high wagon crew.

A master may conduct his business in his own way. Unless a servant wishes to assume the risks of such method as his master has adopted, he should refuse to enter upon the employment, or should leave it on discovering the master’s method of doing business. Hawk v. Railway Co. (Pa.), 11 Atl. 459.

A servant, knowing the hazards of his employment as the business is conducted by the master, cannot recover for injuries received, on the ground that there was a safer way for conducting the business, which, had it been adopted, would have prevented the accident. Naylor v. Railway Co., 53 Wis. 664; Schultz v. Railway Co., 31 N. W. 321 (67 Wis. 616). In a note to this case many cases sustaining the rule will be found. See, also, Hewitt v. Railroad Co., 67 Mich. 61; Illick v. Railroad Co., 67 Mich. 632; Cantwell v. Brennan & Co., 125 Mich. 349.

The undisputed proof shows that the plaintiff was an experienced lineman, that he knew that it was the practice of the company to make no separate inspection of poles, but to rely on such as the lineman should make when occasion required him to work upon them; that all changes of, and repairs upon, poles were made by the crew, in which he participated. He continued, if he did not accept, his employment, with full knowledge of these things, and he therefore assumed the risks attendant thereon. Kohn v. McNulta, 147 U. S. 238; Tuttle v. Railway, 122 U. S. 189; Hickey v. Taaffee, 105 N. Y. 26; Gibson v. Railway Co., 63 N. Y. 449; Chesapeake, etc., R. Co. v. Hennessey, 38 C. C. A. 607; Narramore v. Railway Co., 37 C. C. A. 499 (48 L. R. A. 68); Birmingham Railway & Electric Co. v. Allen, 99 Ala. 359 (20 L. R. A. 457); Louisville, etc., R. Co. v. Frawley, 110 Ind. 18; Michigan Cent. R. Co. v. Austin, 40 Mich. 247; McGinnis v. Bridge Co., 49 Mich. 466; Richards v. Rough, 53 Mich. 212; Jacobs v. Railway Co., 84 Mich. 299; Journeaux v. E. H. Stafford Co., 122 Mich. 400. See, also, note to case, Georgia Pacific R. Co. v. Dooley, 12 L. R. A. 342 (86 Ga. 294).

Similar cases to the one now before us have often arisen. In Cumberland Telephone Co. v. Loomis, 87 Tenn. 504, it was held:

“A charge to the effect that a servant may assume that a telephone pole, which he is required to climb in due course of his employment, is safe and suitable for that purpose, is erroneous in a suit brought by the servant for injuries caused by the breaking of the pole, in that it relieves him from the exercise of ordinary care for his own safety, and decides that he was not the company’s inspector ’ of poles — a disputed fact.”

McGorty v. Telephone Co., 69 Conn. 635, was a case much like this. The court said:

“We have no occasion, upon the facts found, to consider whether the foreman Phelps was a fellow-servant of the plaintiff, a question discussed in the briefs of counsel. The accident did not occur from the negligence of Phelps. It is true he directed the plaintiff to climb the pole, and in answer to the latter’s inquiry truthfully said, as might any other lineman who had tested the pole for himself, that he had been up the pole, and expressed his opinion that it was safe. But the plaintiff knew that it was not a part of the duty of the foreman to instruct an experienced lineman as to the safety of a pole he was about to climb; and from the facts found we must assume that although he knew that in obedience to the order of the foreman he was required to do the work upon the pole, yet he was to rely upon his own judgment in determining whether it was safe to climb it without testing it or supporting it, and that it was his right to secure the pole before climbing it if he doubted its safety.
“It cannot be laid down as a proposition of law, as seems to be claimed by plaintiff’s counsel, that the linemen of telegraph and telephone companies have a right to rely upon the soundness and safety of the poles upon which they are working, and that it is the duty of such companies to inspect and test poles and support such as are insecure, before permitting their linemen to climb them. Whether it is incumbent upon the master or the servant to perform such a duty is usually a question of fact depending upon the terms of the contract of employment, the servant’s knowledge of the hazards of the work in which he is engaged, his ability and opportunity to discover the dangers to which he is exposed and to avoid them, and upon other circumstances. Employers have a right to decide how their work shall be performed, and may employ men to work with dangerous implements, and in unsafe places, without incurring liability for injuries sustained by workmen who knew or ought to have known the hazards of the service which they have chosen to enter. Hayden v. Manufacturing Co., 29 Conn. 548; Dixon v. Telegraph Co., 68 Fed. 630; Greene v. Telegraph Co., 72 Fed. 250; Flood v. Telegraph Co., 131 N. Y. 603; Cumberland Telephone Co. v. Loomis, 87 Tenn. 504.”

See, also, Tanner v. Railroad Co., 180 Mass. 572, and Sias v. Lighting Co., 73 Vt. 35.

In McIsaac v. Lighting Co., 172 Mass. 89, it is said:

“ The plaintiff contends that the defendant was guilty of negligence in failing to ascertain whether the pole was sound and strong, or to take other precautions for his safety.
“The plaintiff was directed to go and take down from the pole the two wires upon it which belonged to the defendant, and to put them on a new pole near by, which had been erected on account of a change of grade in a railroad at a crossing. He went alone to do the work, using a horse and wagon belonging to the defendant to carry such tools and materials as he thought he needed. He was a man of experience in this kind of business, and the method of doing the work he seems to have determined for himself. The pole was of chestnut wood, about 8 inches in diameter at the top, and about 14 inches at the surface of the ground. It had been set between eight and nine years, and the evidence tended to prove that it showed no weakness or sign of decay above the ground.
“A fundamental question is whether the defendant, owed to a lineman, whose business it was to work upon poles all along the line, as occasion might require, the duty to inspect its poles below the ground, and inform the linemen whenever any of them were so decayed as to be unsafe to work upon. The plaintiff admitted in his testimony that he knew that the life of a pole was limited, and that any pole after a time would become unsafe. He had worked upon poles in the construction and repair of electric lines many years. When he engaged to work for the defendant he knew it would be his duty to go upon poles that had been set in the ground an uncertain length of time. He must have known that the work of climbing poles and taking down and putting up wires would often put a strain upon a pole much greater than it would be exposed to in sustaining wires when they were all in their proper positions. He must have known that it would be inexpedient and impracticable to have a man or company of men to go and examine each pole upon which a lineman was about to work, to see whether it would sustain the strain which the work would put upon it. The evidence was undisputed that it was easy to determine very quickly whether a pole was badly decayed a little below the surface of the ground, and that no skill or experience was required to do it beyond that which was possessed by ordinary linemen. The plaintiff testified that there were risks about the business with which he was familiar as a lineman. We think that one of the most common and obvious of these, in reference to which both he and his employer must have been presumed to have contracted when he entered the defendant’s service, was the risk that some pole of uncertain age might break and fall when a lineman was working upon it, if he did not take measures to ascertain its condition, before going upon it. All the evidence tends to show that, in the ordinary course of the business, the linemen, who are often expected to work alone without supervision, as the plaintiff was working at the time of the accident, would examine the poles for themselves, so far as they considered it necessary to do so for their safety. They easily could make any necessary tests to ascertain the condition of the poles as to soundness, without the aid of special inspectors, and from their knowledge of common affairs could judge whether the pole was safe to go upon. The plaintiff testified that there were pike poles belonging to the defendant at the shed from which he started with the horse and wagon, and that he was familiar with the use of pike poles in setting new poles and bracing up old ones, and there is nothing to show that he might not have taken some of them to use in the work if he had chosen to.
“The burden was upon him to show that the defendant’s neglect of some duty caused the accident. We are of opinion that there is no evidence that the risk of falling on account of the weakness of old poles was not a risk of the business, which the plaintiff assumed by his contract to work upon such poles. As between the plaintiff and the defendant, the defendant was under no obligation to inspect the poles to see whether they were decayed, and there was, therefore, no evidence of negligence on the part of the defendant.”

In Britton v. Telephone Co., 131 Fed. 844, Lurton, J., said:

“We see no reason why a lineman, in view of the peculiar character of his work, may not lawfully contract to do any inspecting or testing reasonably necessary to determine whether he can safely climb a particular pole for the purpose of adjusting, transposing, or placing new wires. His acceptance of service with knowledge of the way in which the company conducts this part of its business, whether that way be the safest way for him or not, would imply an assumption of the risks incident to that mode of carrying on its work. Linemen must, in the very nature of the occupation, be often required to work alone, or in association with another lineman, and it would seem quite impracticable and unreasonable to send one man as an inspector with another of equal fitness to test a pole before climbed by the latter. The case might be altogether different if skill of a kind not presumably required from a lineman in the usual course of his calling was necessary to apply the tests reasonably sufficient in such cases. The tests which the plaintiff’s evidence shows to be customarily used are by shaking, by pushing against the pole by means of a long staff with a point at one end, and by throwing away the dirt next the surface at the base of the pole and examining by use of an axe or crowbar the soundness of the pole at that point. These tests are all simple, and quite within the range of the experience of a qualified lineman, as shown by the evidence in this case. The experience of any such lineman would advise him that the life of a pole varies with climate, soil, and character of the wood. The same experience would warn him of the danger of putting the strain incident to climbing and removing or adjusting wire upon a pole of uncertain age, for a pole may well stand under the support of wires extending from one pole to another which will not stand under the weight of a man with the tension of the wires removed. That he should be held to assume the risks incident to climbing after making such examination and tests as his own experience and judgment should indicate were necessary, is not inconsistent with the fair implications arising from his acceptance of employment.
The principle applicable in such cases is that, by continuing in the service with knowledge of the manner in which that business is conducted, the servant agrees that the dangers obviously incident to the discharge of his duties, when he is expected to determine for himself the safety of a particular pole before climbing, shall constitute a term of the contract of employment. This is the doctrine of assumption of risk as many times expounded by this and other courts.”

The court erred in excluding testimony offered to show that it was the universal custom of such railroad companies to omit other inspection than that made by the repair crew, and it was also error to instruct the jury that such omissions constituted negligence. Under the undisputed proof and the broad admissions of the plaintiff himself, the court should have directed a verdict for the defendant.

The judgment is reversed, and no new trial will be ordered. The defendant will recover costs of both courts.

Grant, O. J., and Ostrander and Carpenter, JJ., concurred. Montgomery, J., concurred in the result.


author: Grant, C. J.

text:
    HADEN v. CLOSSER.
    1. Appeal and Error — Briefs — Statement of Facts — Sufficiency.
    Where the appellee points out no errors m appellant’s statement of facts, but makes an entirely distinct statement, raising questions not involved in appellant’s statement, in disregard of Supreme Court Rule 40, the court will adopt the statement made by appellant, and consider only the question raised thereby.
    2. Taxation — Tax Sales — Notice to Redeem — Sufficiency.
    Where a description of land is sold for the taxes of several years, the notice given by the tax-title purchaser, under section 140 of the tax law, must show the amount paid for that description, separate from all others, for the entire time covered by the notice.
    Case made from Chippewa; Steere, J.
    Submitted February 19, 1908.
    (Docket No. 75.)
    Decided June 27, 1908.
    Ejectment by John F. Haden against Dayton W. Glosser and others. There was judgment for defendants on a verdict directed by the court, and plaintiff appeals.
    Affirmed.

      B. A. & W. E. Hawley {Oren, Webster & Oarleton, of counsel), for appellant.

      Dayton W. Glosser {Davidson & Hudson, of counsel), for appellees.
    This is an action of ejectment to recover the standing timber on the W |, I E ], section 23, town 44 N, range 4 W, in Chippewa county. It is brought here on a case made.
    Plaintiff claims title through a tax deed from the State-Defendants are the owners of the original title. Under the statement of facts made in appellant’s brief, the title depends upon the validity of the notice served upon the original owners under section 140 of the tax law. The defendants point out no errors in the statement of facts, but have made an entirely distinct statement in utter disregard of Supreme Court Rule 40. Defendants’ statement of facts raises other questions than the one involved in plaintiff’s statement. We will therefore adopt the statement as made in the appellant’s brief and consider only the question raised thereby, namely: The validity of the notice above mentioned.
    The notice contained many other descriptions, but, as applied to the one here in issue, the notice is as follows:

    The court directed a verdict for the defendant for the reason that in stating the amount of taxes upon the W \ of NE J for the years 1901 and 1902, the said description was bunched with the other descriptions and the taxes given in a gross sum, and the notice did not indicate the amount paid for taxes on said description, and therefore the original owner could not determine how much of the taxes for 1901 and 1902 had been paid on said W •§■ of NE i, and were thereby uninformed of the total amount that was paid by the purchaser as a condition of the purchase of said W £ of NE i, or how much was required to obtain a reconveyance of the land.
   Grant, C. J.

(after stating the facts). It is conceded that the first four paragraphs are valid, and that the fifth paragraph is invalid for the reason stated by the learned circuit judge. The question is, as stated by appellant’s counsel, Does the one invalid paragraph affect the others, admittedly valid, and render the entire notice, so far as it relates to the land in question, of no legal force or effect ? The precise question has never before been presented to the court. Counsel for the defendants insist that the case is controlled by Jackson v. Mason, 143 Mich. 355; John Duncan Land & Mining Co. v. Busch, 145 Mich. 1; G. F. Sanborn Co. v. Johnson, 148 Mich. 405. They do not necessarily control it. In those cases the deeds contained several descriptions of land and the notice gave only the sum required to redeem them all as though there was only one description. It was held that the owner of the tax title must state in his notice the amounts for which each parcel was sold, as the original owner was entitled to a reconveyance of any one parcel. In this case four of the paragraphs contain all that the statute requires. The same land was sold for other years, and in describing that sale and deed obtained by virtue thereof the notice did not give the original owner the information required. Standing by itself, the notice would be void under section 140, and under the above decisions.

While there is some force in the contention on behalf of the plaintiff, that payment upon the valid four paragraphs would have entitled the defendants to a reconveyance of the land, and would have estopped the plaintiff from making any further demand under the 5th void paragraph, my brethren are all of the opinion that it was incumbent upon the plaintiff to state the amount separately in all five paragraphs, and that this case is within the principle of the above cases. I yield to their opinion. We therefore hold that where the same description of land is sold for several years the notice must show the amount of the same description for the entire time covered by the notice.

Judgment affirmed.

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


text:
    AINSWORTH v. MUNOSKONG HUNTING & FISHING CLUB.
    1. Injunction — Propriety op Issuance.
    The first question in an injunction case, in addition to the general question on the threshold of every chancery case relative to jurisdiction, is as to the necessity for the restraining writ of the court, and this is determined by ascertaining the nature of the injury done or threatened.

      % Same — Remedy at Law — Continuing Trespass — Multiplicity op Suits.
    Where defendant by its agents and servants had repeatedly interfered with complainants’ right to hunt wild fowl upon certain navigable waters, and threatened to continue so doing, complainants’ remedy at law by a multiplicity of actions for trespass was inadequate, and the existence of such remedy was no objection to their right to an injunction.

      3. Same — Right to Hunt on Navigable Waters — Protection by Injunction.
    The right of citizens to hunt wild fowl on the navigable waters of the State is a civil right, protection in the exercise of which is within equitable jurisdiction.
    4. Same — Substantial Injury.
    Such right is not merely a bare legal right, interference with which causes no substantial injury, but is a right of sufficient dignity that interference therewith may be prevented by injunction.
    5. Same — Bill—Sufficiency.
    A bill filed by citizens of the State against a hunting club to enjoin interference by defendant with complainants’right to hunt wild fowl upon the navigable waters of an arm of the Great Lakes, which alleges that defendant, by its agents and game keepers, claimed the exclusive right to hunt in such waters, and unlawfully interfered with complainants’ exercise of such right by rowing boats among complainants’ decoys and preventing ducks from alighting near them, and advertises that it will continue to prevent all persons, including complainants, from hunting there, sufficiently states an apprehended and threatened injury to justify an injunction.
    6. Same — Irreparable Injury — What Constitutes.
    The threatened injury to complainants was irreparable within the rule that an injury is irreparable when it cannot be adequately compensated in damages, or when there exists no certain pecuniary standard for the measurement of damages, due to the nature of the right or property injured.
    7. Fish — Pishing Rights — Protection.
    The right to fish in navigable waters is a public right, for injury to which an action for damages will lie, or, if the injury be irreparable, or is one for which the law furnishes no adequate remedy, it may be restrained by injunction.
    8. Game — Right to Hunt — Protection.
    The right to hunt wild fowl upon the navigable waters of the State is a public right, of which any citizen may avail himself, subject to the game laws of the State, the exercise of which will be protected by the courts.
    Appeal from Chippewa; Steere, J.
    Submitted February 25, 1908.
    (Docket No. 153.)
    Decided June 27, 1908.
    Bill by Corydon E. Ainsworth and Frank Trompe

      against the Munoskong Hunting & Fishing Club to enjoin the interference with hunting wild fowl on navigable waters. From an order sustaining a demurrer to the bill, complainants appeal.
    Reversed, and remanded.

      E. 8. B. Sutton, for complainants.

      Sharpe & Handy, for defendant.
   McAlvay, J.

Complainants, residents of the county of Chippewa, filed their bill of complaint against defendant, praying that defendant be enjoined from interfering with, preventing and molesting complainants in the pursuit of their common right to hunt wild fowl on Munoskong Bay in said county, whose waters as is claimed in said bill are a part of the Great Lakes, the defendant claiming to have exclusive right to take such wild fowl.

The material matters set forth in the bill of complaint necessary to state are: That the waters referred to are navigable meandered waters; that they were hunting ducks on said waters in a row boat about one-half mile from shore, and had set their decoys for that purpose; that the agents and servants of defendant corporation came from the club house and ordered complainants to cease hunting ducks claiming the exclusive right to hunt ducks on said waters to be in defendant, and that complainants had no right or privilege to do so; and that the agents and servants of defendant wilfully and with intent to prevent complainants from hunting ' ducks upon these waters rowed their boat about among the decoys and prevented ducks from alighting near them, and prevented complainants from shooting and securing them; that complainants moved their decoys from that place to another upon the navigable waters of this bay, where they might lawfully hunt ducks, and that these parties followed them repeating their unlawful conduct, and, acting under orders of defendant, again prevented complainants from hunting; that they followed complainants about with their boat and finally they were unlawfully compelled to cease from exercising their lawful right to hunt on this navigable meandered bay; that defendant’s servants when requested to keep away and desist from interfering with them refused, and said they were game keepers of defendant which had employed and placed them there to prevent any persons except members of the club from hunting on said waters, which right was possessed solely and exclusively by defendant; which conduct complainants allege is in violation of their inalienable rights in the pursuit of happiness and also of their personal liberty. Complainants allege that defendant club owns certain land on the border of this bay upon which land is a club house where these game keepers remain for the purpose of keeping hunters from these waters and that defendant claims that by reason of such ownership it has the exclusive right to hunt on said waters; that defendant through its members has publicly stated and advertised the fact that they will prohibit and prevent all persons, including complainants, at all times from hunting upon these waters.

The bill avers that this bay is navigable by large steam and sail craft; that the ownership of defendant extends only to high or low water mark, at which point the fee of the State of Michigan begins, and that they have a right, at all times when the law so allows, to hunt upon said waters in common with all citizens of the State; that the lands covered by the waters of said bay beyond the meandered line thereof are unsurveyed and none of them are owned or possessed by defendant but belong in fee to the State of Michigan, held by the State as trustee for all of the people of the State, and complainants have as much right to hunt upon these waters as the members of defendant club. The bill also states that complainants desire and intend to hunt on said bay during the then approaching open season of 1907, but will be prevented from doing so by defendant’s servants and agents unless they are enjoined from interfering with them to the irreparable loss and injury of each of them; all of which is alleged to be contrary to equity and the rights of complainants and to their manifest wrong and injury. The bill alleges jurisdiction and contains all the usual and necessary formal parts of a bill in chancery and prays that defendant and its members, agents, etc., be restrained and enjoined from interfering with, obstructing, and preventing, in any manner, complainant from the free exercise of their right to hunt wild fowl upon said waters. A preliminary injunction issued upon filing the usual bond in the sum of $500. A motion for dissolution of this injunction was denied.

Defendant then demurred to the bill of complaint upon the following grounds:

1. Complainants have not, in and by their said bill, made or stated such a cause as entitles them in a court of equity to any discovery or relief from or against this defendant, touching the matters contained in the said bill or in any of such matters.

2. It appears by the said bill of complaint that if complainants have any cause of action relative to the matters set forth in said bill of complaint, they have an adequate remedy at law.

8. It appears by said bill of complaint that the rights affected of complainants, if any, are to their persons and not to their property.

4. That said bill of complaint fails to show any immediate danger of irreparable damage.

5. That complainants have been guilty of such laches that they are now barred and estopped from asking relief.

6. That complainants seek to restrain others from doing acts and things they have a legal right to do.

7. That the allegations in said bill of complaint are insufficient to give the court jurisdiction to grant the relief prayed for.

Upon a hearing a decree was granted sustaining the demurrer and dismissing the bill of complaint. Complainants have appealed. The demurrer admits the truth of the facts charged in the bill of complaint.

At this time, then, there is no necessity for discussing complainants’ rights in the premises, and we assume that the waters upon which they were attempting to pursue, hunt, and capture wild fowl were navigable waters, where they were entitled to exercise all the rights they claim. We may also assume that the hired servants of defendant wrongfully and unlawfully, under the instructions of their employer, the defendant, by the means stated, interfered with complainants in the peaceable enjoyment of their rights, under the claim that defendant had acquired exclusive rights and privileges for its members to hunt wild fowl upon these waters; and that such interference will continue to the damage and injury of complainants.

The only proposition to consider is whether the bill sets forth such a cause of action over which a court of equity will entertain jurisdiction, and whether the bill of complaint states facts and circumstances sufficient to entitle complainants to an injunction against defendant.

It will be unnecessary to cite and discuss text writers and authorities as to the fundamental principles which govern courts in issuing or denying relief by injunction. The first question in an injunction case, in addition to the general question on the threshold of every chancery case relative to jurisdiction, is as to the necessity for the restraining writ of the court. This is determined by ascertaining the nature of the injury done or threatened. This is strictly an injunction bill and to deny an injunction, preliminary or permanent, disposes of the whole case.

If hunting for wild fowl upon these navigable waters for recreation or health is a right which the complainants are entitled to exercise, no person may lawfully interfere with the reasonable and lawful exercise of that right. If it is urged that trespass will lie against defendant and its officers and agents for the wrong complained of, the repetition and continuance of the interference with complainants would require a multiplicity of suits, and if complainants must be relegated to such suits they certainly would be absolutely deprived of the exercise of a legal and substantial right, and the damages possible to be obtained would be wholly inadequate. Parties in such cases should be entitled to equitable relief. Nashville, etc., R. Co. v. McConnell, 82 Fed. 65.

The right upon which complainants insist is a civil right and their protection in its exercise clearly within equitable jurisdiction. 22 Cyc. p. 757.

We think that this right is not merely a bare legal right interference with which causes no substantial injury. To many people such rights are highly prized and their exercise valuable and necessary. To hold that such rights are not of sufficient dignity that interference therewith, and the prevention of their lawful exercise, and threatened continuance of such interference, will be taken cognizance of by the courts, and injury arising therefrom prevented, would be to deprive complainants of such rights, and to encourage wrongdoers in the assumption of the sovereign prerogative. The allegations of the bill of complaint as to the apprehended injury threatened by defendant are sufficient. The averments of the bill, not being denied, are sufficient if charged on information and belief. 1 High on Injunctions (4th Ed.), § 35.

From the state of the pleadings, there is no dispute here as to complainants’ rights; whether there is an injury for which a suit at law will furnish no adequate remedy, and whether that injury is irreparable are the crucial questions. The first we have decided in the affirmative. Whether an injury to property or rights is irreparable depends in each case upon the nature of the right or property.

“An injury to be irreparable need not be such as to render its repair physically impossible; but it is irreparable when it cannot be adequately compensated in damages, or when there exists no certain pecuniary standard for the measurement of damages * * * due to the nature of the right or property injured.” 22 Cyc. pp. 763, 764, and cases cited.

The right to fish in navigable waters is a public right, 13 Am. <fe Eng. Enc. Law (2d Ed.), p. 560, and cases cited.

An action for damages will lie for injury to such right. 13 Am. & Eng. Enc. Law (2d Ed.), p. 584.

The authorities hold that certain injuries to fishing which if permitted would be irreparable or for which the law furnishes no adequate remedy, may be restrained by injunction. 13 Am. & Eng. Enc. Law (2d Ed.), p. 585, and notes.

To hunt and fish in and upon the navigable waters such as these is a public right of which any citizen may avail himself subject to the game laws of the State. The right to hunt is as valuable to the individúal as his right to fish, and the authorities which sustain and protect him in the exercise of the one may be invoked with equal force as to the other. We are unable to draw any distinction between them.

Our conclusion is that the injury to complainants’ rights complained of comes within this definition. The decree of the circuit court sustaining the demurrer and dismissing the bill is reversed, with costs of both courts to complainants. The cause will be remanded and defendant allowed the time fixed by rule to answer said bill of complaint.

Grant, O. J., and Hooker, Moore, and Carpenter, JJ., concurred.


author: Montgomery, J.

text:
    McFARLANE v. SIMPSON.
    1. Taxation — Tax Sale — Resale—Offer—Evidence.
    On a petition for a writ of assistance by a purchaser from the State under a tax sale, testimony respecting a verbal offer by petitioner to sell the lands to respondent for what they had cost him examined, and held, that the offer was not to be left open indefinitely, and that the most that could be said was that respondent might have understood the offer to be open for a reasonable time.
    2. Same — Redemption—Notice—Application of Statute.
    Act No. 229, Pub. Acts 1897, providing for a notice of tax purchase to be served on the owner of the lands sold, has no application to sales made by the auditor general prior to the date of the act taking effect.
    3. Same — Notice—Effect.
    Where one who purchased under a tax sale, before Act No. 229, Pub. Acts 1897, took effect, served upon the owner of the land the notice required by that act, such notice could not be regarded as a continuing offer to sell, but the most favorable view that can be taken for the owner is that it would not have lain with the purchaser to refuse to accept redemption on the terms stated in the notice, had a tender been made within the time stated; whence a deposit with the county clerk, after the period of redemption stated in the notice had expired, was ineffectual.
    4. Same — Opening Decree — Laches.
    Where a landowner knew for nearly seven years that petitioner had bought his land from the State and held a tax deed therefor and claimed title to it, but made no effort to open the decree until the purchaser petitioned for a writ of assistance, though petitioner for two years had been insisting upon payment in full, there is such laches as will preelude an attack upon the decree upon the ground that the auditor general included in his petition lands which had been previously sold and bid in to the State.
    Appeal from Ontonagon; Cooper, J.
    Submitted April 8, 1908.
    (Docket No. 4.)
    Decided June 27, 1908.

      Petition by William McFarlane against Alexander T. Simpson for a writ of assistance as purchaser under a tax sale. Respondent filed an answer in the nature of a cross-bill making James B. Bradley, auditor general, a party defendant, and asked to have said sale set aside. From a decree for respondent, petitioner appeals.
    Reversed, and writ issued.

      Ball & Ball, for petitioner.

      M. J. Sherwood, for respondent Simpson.
   Montgomery, J.

The petitioner presented his petition for a writ of assistance as purchaser from the State under a tax sale for the taxes of 1893. The respondent filed an answer to the petition, which he asked to have treated as a cross-bill, and included in the answer a prayer for relief and made the auditor general a party. Some question has been made as to the propriety of the practice, and there is pending a motion to strike from the files a certificate obtained by the defendant from the circuit judge, which motion is to be determined with the case. Inasmuch as the certificate of the circuit judge, as now construed by the respondent’s counsel, is intended to affirm the facts only as they are conceded by the affidavit made by the petitioner, and inasmuch as we would, in any event, before dismissing this proceeding finally, permit an amended return to show the facts as they are stated in the affidavits, we do not find it necessary to grant the motion, but deal with the case on the merits.

The purchase was made by the petitioner from the State of the lands involved on July 13, 1897, the deed being dated October 1, 1897, based on a certificate of purchase given at the date first named. This certificate and deed covered the taxes of 1892 and 1893. The petitioner also paid the taxes of 1894, 1895, and 1896, and later on paid the taxes of 1898. In the spring of 1898, petitioner went to the land on which the respondent was living and asked the respondent to deliver up possession of the land. This the respondent refused to do. The petitioner at that time made a verbal offer to sell the lands to respondent for what they had cost him. This offer was not then accepted. It is a matter of controversy as to whether the testimony fairly shows a purpose to reject this offer, or whether the respondent had reason to believe that the offer was to be left open indefinitely. We think the most that can be said is that he might have understood the offer to be open for a reasonable time. Nothing occurred between the respondent and the petitioner until April 27, 1903, when the petitioner caused a notice of a tax purchase in the form provided by Act No. 229, Pub. Acts 1897, to be served on respondent. This notice claimed a total amount of $76.82 due for the years 1892 to 1898 exclusive. When this notice was served upon the respondent, he testified that he told the party who served it that he would pay the petitioner all the taxes and expenses less the tax of 1898, for which he held the county treasurer’s receipt, and on the 24th of June following, he wrote petitioner:

“ I would have sent you check for the same long ago if it had been correct, but you have made a mistake, as I hold county treasurer’s roceipt for the taxes for the year 1898, and don’t intend to pay them twice. However, I will settle with you for the balance after that amount is deducted out, if you will call in when you are passing by.”

There seems to have been no answer to this letter, and respondent then wrote to one Charles O’Rourke, who resides at Ontonagon, the place of residence of the petitioner, and sent him a check and asked him if there was more to pay to make up the balance and settle with the petitioner. This, however, was not done, and no tender was made in fact until the 5th of March, 1905, when the amount covered by the notice was paid into the hands of the county clerk. The testimony of respondent is that when he left the money with O’Rourke he was to make up the difference, whatever was required, in the opinion of Adams, a lawyer of the town, and pay it to petitioner. He also testified that between the time of the demand in 1903 and the time the money was deposited, Mr. McFarlane never made any demand upon him for the taxes or to give up possession of the land, and that he did not know during that time whether O’Rourke or Adams had redeemed his (property from McFarlane or not.

; It cannot of course be claimed that there was a tender of the tax within the time fixed by Act No. 229 of the Public Acts of ISO?, even if that act should be considered as having application to this case. But, as was held in Eldridge v. Richmond, 120 Mich. 586, the act does not apply to sales made by the auditor general prior to the date of the act taking effect. It is suggested that this was an offer of sale. We think the most favorable view that could be taken for the respondent is that it would not lie with the petitioner to refuse to accept redemption on the terms stated in the notice had a tender of redemption been made within that time. But this was not done. So that if the respondent is to prevail, it must be upon the ground of irregularity or want of jurisdiction in the original proceedings in the case in which the decree was made.

It is alleged that such irregularity exists, in that the auditor general included in his petition for the sale of taxes for 1893 lands which had been previously sold and bid in to the State. The question at once presents itself as to whether this defense is open at this date, or whether the respondent is guilty of such laches.as precludes the court from opening up this sale. The only excuse for the delay in instituting these proceedings that we can find is that which arises out of the effort made through O’Rourke and Adams to adj'ust this matter. But before the notice of 1903 was served at all, there had been knowledge on the part of the respondent for nearly five years that the petitioner had purchased these lands and claimed title thereto. It is true that there was a proposition to deal liberally with the respondent, but this proposition was not accepted or acted upon by the respondent. Nor during the period in which he was negotiating with O’Rourke and Adams was there any suggestion of any purpose on the part of the petitioner to compromise his claim or abate it from the amount stated in the notice of April, 1903. Respondent was therefore in no way misled by the attitude of the petitioner in the premises. Nor was he delayed by the negotiations through O’Rourke and Adams in accomplishing any purpose which he had of presenting a petition to open up this decree. So far as the record shows, he had no such purpose. We have then a case in which from 1898 to 1905, a period of nearly seven years, the respondent knew that the petitioner had become the purchaser of this land and held a tax deed therefor and claimed title to it. During a portion of this time, petitioner was willing to adjust on very reasonable terms. During nearly two years of the time he was insisting upon payment in full, and yet no action was taken to open up this decree in all this period. We feel constrained to hold that, under the prior decisions of this court,the respondent was guilty of such laches as precludes his now raising the question. See Bending v. Auditor General, 137 Mich. 500; Owens v. Auditor General, 147 Mich. 683.

The decree, which denied petitioner relief and set aside the decree on terms, must be reversed and an order entered that a writ of assistance issue.

The petitioner will recover costs of this appeal.

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