author: Carpenter, J. Grant, J. Ostrander, J.

text:
    GRIFFIN v. KENNEDY.
    1. Appeal and Error — Questions Considered — Presentation by Record.
    Errors not presented by the record are not available on error.
    2. Constitutional Law — Due Process — Taxation—State Tax Homestead Lands — Determination—Validity of Statute.
    Section 127 of the general tax law (Act No. 206, Pub. Acts 1893), as amended by Act No. 107, Pub. Acts 1899, makingit the duty of the auditor general and commissioner of the State land office to determine when State tax lands shall become State tax homestead lands, is not unconstitutional on the ground that the making of said determination is a judicial act which must be performed by a court, because, after the expiration of the period of redemption from a regularly conducted tax sale at which the State has purchased, the former owner has no rights to be affected by the determination, and the determination is a mere classification of State lands.
    3. Taxation — State Tax Homestead Lands — Effect of Redemption Statute.
    The title of the State to State tax lands is not impaired by Act No. 229, Pub. Acts 1897, superseded by Act No. 236’, Pub. Acts 1903, giving landowners the right to redeem when the State has sold their lands as State tax lands under the general tax law.
    4 Constitutional Law — Due Process — State Tax Homestead Lands — Requiring Owner to Bring Suit.
    Section 127 of the general tax law is not invalid because it provides that the determination therein specified shall be conclusive unless assailed by suit within six months, since the former owner of lands affected by the statute has no rights to protect.
    5. Same — Discrimination Between Owners Similarly Situated.
    That under section 127 of the tax' law a landowner may, because his land is determined to be State tax .homestead land, be deprived of acquiring the right to redeem which his neighbor, similarly situated, does acquire, does not render the statute unconstitutional.
    Ostrander, J., dissenting.

      Error to Bay; Shepard, J.
    Submitted October. 19, 1906.
    (Docket No. 109.)
    Decided July 1, 1907.
    Ejectment by Albert A. Griffin against Daniel J. Kennedy and others. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      T. E. Webster, for appellants.

      Albert McClatchey, for appellee.
   Carpenter, J.

This is an action of ejectment. Plaintiff’s title is derived from a deed executed under the State tax homestead law. This deed was prima facie evidence of title (Act No. 211, Pub. Acts 1905), and there was no evidence of any irregularity in the proceedings leading to its execution. Defendant Kennedy was the former owner of the land. The other two defendants were tenants of defendant Kennedy. These tenants occupied the land at the time the auditor general and the commissioner of the State land office determined that it was homestead land. Verdict and judgment passed for plaintiff. We are asked to reverse that judgment

Appellants in their brief argue several questions not presented in the record. Such questions we cannot consider. Under the practice prevailing in this court, we reverse judgments of the circuit court only for the errors shown by the record and complained of in appellant’s brief. In other words, the question of law upon which appellant relies must be presented in the record and argued in his brief. Under this rule, there is but one question in this case for our consideration, and that arises from the contention of defendants that section 127 of the general tax law (Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899), is unconstitutional. That section makes it the duty of the auditor general and commissioner of the State land office to determine when State tax lands shall become State tax homestead lands. Such determination is conclusive unless assailed in the manner pointed out in the statute within six months. In making said determination, said officials must determine, and they are authorized to determine, whether or not the land is occupied; and in the case at bar they determined — and, defendants contend, erroneously determined — that it was unoccupied. We have heretofore decided that the decision of these officers “could not be overturned by a parol showing that it [the land] was not * * * abandoned.” Semer v. Auditor General, 133 Mich. 569. But for the first time we are called upon to consider the claim that the statute is unconstitutional, upon the ground that the making of said determination' is a judicial act which, under the Constitution of this State, must be performed by a court. This argument rests, and must rest, upon the assumption that the former landowner has some rights which are affected by the determination. This assumption is unfounded. The former landowner has no such rights, because before the determination all his rights had been acquired by the State. After the expiration of his right to redeem from a regularly conducted sale at which the State has purchased — and that is the case with the land in question — it (the State) owns and can dispose of the land as it pleases; and this is true, though the former owner of the land continues in possession, for he is in possession without the right of possession. The determination in question was therefore a mere classification of lands owned by the State. It was in no sense a judicial act.

In reaching the foregoing conclusion, we have considered and denied the proposition that the title of the State which would otherwise be absolute (see Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444; Hickey v. Rutledge, 136 Mich. 128) is lessened or impaired by Act No. 229 of the Public Acts of 1897. This act, which is superseded by Act No. 236 of the Public Acts of 1903, gave owners the right of redemption when the State sells State tax lands under the general tax laws. It has been urged that the legislature, by passing said Act No. 229, intended to convert the title of the State theretofore absolute into a lien analogous to that of a mortgage, and, consequently, to give the original owner of the land an equity of redemption of which he cannot be summarily deprived. I think it a conclusive answer to this argument to point out that at the time Act No. 229 of the Public Acts of 1897 was passed the act under consideration in this case, viz., the act providing for the sale of State tax lands for homesteads, was already upon the statute books. It is clear, and I think it will be conceded, that the legislature did not intend by enacting said Act No. 229 to affect the disposition of State tax lands under the State tax homestead law. At the time Act No. 229 took effect, the State tax lands were then of two classes: First, those which might be sold for homesteads under the State tax homestead law; second, those which might be sold to purchasers under the general tax laws. In enacting said law, the legislature did not intend that the land in the first class should be subject to redemption in the hands of a purchaser from the State, but it did intend that land in the second class should be subject to said redemption. Whether a particular description of land belonged to the one or the other of these two classes manifestly could not be determined prior to its sale or classification. Until sold under the general tax laws, any particular description of land might become tax homestead land. It follows, therefore, that the legislature did not intend to lessen the State’s title in State tax lands generally. It intended merely to give owners the right to redeem after the State tax lands formerly owned by them were sold by the State to private purchasers under the general tax laws. We can and should give full effect to this intent without depriving the State of the right which the legislature clearly intended it should have of disposing of its land under the State tax homestead law, and also, I submit, of disposing of it in any other constitutional way the legislature might afterwards adopt. It is undoubtedly true that said Act No. 229 has the effect of giving to the former owner of the State tax lands a title which formerly he did not possess. See Adkin v. Pillen, 136 Mich. 682. But this title does not come into existence until the sale described in said act has been made. That, it seems to me, was the legislative intent, and I see no difficulty in giving it effect. It may be said that a sale under the general tax laws transfers all the title of the State; part of the title so transferred passes to the purchaser, and part to the original owner of the land, his mortgagee or grantee. I shall not undertake to give a technical name to each of these different titles. We can give effect to the legislative intent without performing that undertaking.

Said section 127 provides that the determination heretofore mentioned shall be conclusive unless it is assailed by suit within six months. As applied to this case, this provision required the defendant in possession to commence suit against an adverse title. This circumstance does not, in my judgment, render the provision unconstitutional under the principle recognized and applied in O’Connor v. Carpenter, 144 Mich. 240. That principle is this:

“One who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another for failure to bring suit against that other within a time specified to test the validity of the claim which the latter asserts, but takes no steps to enforce.” Cooley on Constitutional Limitations (6th Ed.), p. 449.

That principle preserves the rights of the one in possession. 'It applies only where he has rights. In this case defendant in possession had no rights, and therefore the principle has no application. A contrary holding would, in my judgment, require us to say that Semer v. Auditor General, 133 Mich. 569, and Jackson, etc., R. Co. v. Lumber Co., 146 Mich. 204, were erroneously decided. It is true, as pointed out by Justice Ostrander, that under our tax law the former owner in possession of State tax lands may, because Ms land is determined to be State tax homestead land, be deprived of acquiring the right to redeem which his neighbor similarly situated does acquire. This discrimination was authorized by the legislature. It may be unjust.' If so, the legislature, and the legislature alone,, can give relief. It is not unconstitutional.

I think the judgment should be affirmed.

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

Grant, J.

I concur fully in the opinion of my Brother Carpenter. In view of the opinion of my Brother Ostrander, I desire to refer more fully to the facts in this case than is done in their opinions.

Plaintiff made his case by introducing the deed, dated December 12, 1904, from the commissioner of the State land office to the plaintiff. This deed is prima facie evidence of title, and of the regularity of the proceedings by which title was acquired. It was admitted that defendants Ruhstorfer were in the actual possession of the property at the time the suit was commenced. Plaintiff then rested. Defendant then introduced the deed from the auditor general of the State to the State of Michigan, dated September 2Í, 1904, conveying the land therein described to the State, under section 127, Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899. That deed recited the examination and determination of the auditor general and the commissioner of the State land office, as provided in section 127 of Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899, and the filing of a certificate by the examiner that the lands were abandoned. It was admitted by the parties that the record title stood in defendant Kennedy, subject to the tax liens and tax proceedings, and had been in him for a number of years prior to these proceedings. A witness for the defendants testified that he (the witness) had been in charge of the property, had collected rent therefor; that Joseph Ruhstorfer was a tenant under Kennedy, and had been in possession of the property since March 1, 1904. He also testified that from January 13, 1904, to March 1, 1904, the house on said property was unoccupied. This comprises all the testimony in the case.

It was the duty of defendant Kennedy to show that the title was void. No such showing or attempt to show is shown upon this record. As shown by the deed from the auditor general to the State, defendant Kennedy had neglected to pay his taxes for 18 years, from 1882 to 1903. No excuse is offered for not paying the taxes, or for failing to appear in the numerous chancery proceedings., brought by the auditor general to foreclose the tax lien, and to contest the validity of the taxes if he had any objection thereto. In deciding this case, therefore, we must hold that all the proceedings were regular, and that the State obtained title to the lands. I am unwilling to cast any doubt upon the many decisions of this court holding that the State acquires the absolute title to these tax lands. The original owner, after decree and sale, may in a proper proceeding attack the title for certain reasons. When the title is in the State, the original owner has no more interest in it than any stranger to that title. He may purchase the land from the State as may any other person.

The design and object of proceedings in chancery are to give the landowner his day in court to test the validity of the tax proceedings. He is a party to that litigation. He knows that his lands are subject to taxes, that he has not paid them, and that proceedings will be taken to foreclose the tax lien. His property is advertised in the public notice required to be given. It does not lie in his mouth, under these circumstances, to say that he has had no opportunity or day in court to test the validity of the taxes assessed against him, or of the regularity of the proceedings by which the State has acquired title to his land. Act No. 229, Pub. Acts 1897, did not change the validity of that title or cast any doubt upon it. That statute simply provided that, when the State sold and conveyed its title, its grantee should give the original owner a notice of his purchase, and that such owner should be entitled to a reconveyance upon payment of double the amount paid to the State, and certain other charges. That statute did not use the words “redeem” or “redemption.” The notice to be served required that the purchaser from the State should say in it that he “has title thereto under the tax deed.” In the amendment máde to this law by Act No. 236, Pub. Acts 1903, the first section of Act No. 229 was not changed in this respect. The forepart of the second section remains the same; the term “reconveyance ” being used. The amendment to section 2, being section 141 of the general tax laws, provides that:

“Any person owning any right, title or interest in said lands shall at any time after the date of issue of tax deeds thereon, and before service of notice as herein provided, be entitled to redeem the land from sale by paying to the register in chancery of the county in which the lands lie, on the certificate of the auditor general or his deputy, all sums paid as a condition of such purchase, together with one hundred per cent, additional thereto, and the further sum of five dollars for each description. By such payment the tax title shall become void and of no effect against the lands thus redeemed. The register in chancery shall, whenever payment is made to him as provided in this section, at once notify the owner of the tax title of the payment so made, and the owner of the tax title shall forthwith deliver a quitclaim deed of said land running to the person making such payment, and shall also deliver to said register the tax deed, certificates of purchase, tax .receipts and all other conveyances relating to said tax title before he shall be entitled to receive the money paid to said register as herein provided. Upon delivery of such reconveyance the register in chancery shall at once pay over to the owner of the tax title all sums received by him for redemption of the lands therein described.”

In construing what the words “redeem ” and “redemption ” mean in this statute, the entire statute must be considered. To my mind the conclusion is irresistible that Act No. 229, Pub. Acts 1897, as amended by Act No. 236, Pub. Acts 1903, is not intended to cast a doubt upon the title of the State or the title of the purchaser from the State. On the contrary, it recognizes that title as valid, and in selling and conveying its title it imposes a condition, which it has the right to do, as has any private individual in selling his property, that such purchaser must serve a notice upon the original owner that he has a valid title, and, if the original owner chooses to pay him certain amounts, the tax purchaser shall reconvey the title to him. The law- confers upon the negligent owner, not any title or right, but a privilege to obtain a reconveyance upon specified terms. The record does not show when the examination to determine whether the land was abandoned was made. No one may then have been in possession. The abandonment which the statute contemplates is not at the time the deed from the auditor general to the State is executed, but at the time the examination is made to determine that fact. It is conceded that defendant Kennedy was not in the actual possession. If possession by the defendants as his tenants were a defense to the action, he has failed to make it appear that such occupancy existed when the examination was made.

Ostrander, J.

(dissenting). This court has used the words “absolute title” in describing the interest acquired by the State in lands sold for taxes after the statute period of redemption had expired. The opinions in which the words appear to have been given the largest meaning are, it seems to me, Allen v. Cowley, 128 Mich. 530, Hickey v. Rutledge, 136 Mich. 128, and Blake v. Grondin, 141 Mich. 104. There may be other cases in which the extent of the interest so acquired by the State is expressed otherwise than by the somewhat general formula “absolute title.” It is apparent that, if the tax law is to be construed and applied according to a notion that the interest of the landowner is completely divested when his land is sold and he has failed to redeem it, conclusions will be reached widely different from those arrived at in conformity with the idea that, until some one possessing the right to the entire beneficial interest in the land appears, there remains with the landowner an interest in the land of which he has not theretofore been divested. Whether construction shall proceed according to one or other of these notions is not determined by reasoning based upon what the legislature, in making a tax law, might have done. We know what the legislature has done, and construction, where it is necessary, must proceed upon the assumption that it has concluded the exercise of legislative power in this behalf. Indeed, if the legislature might have saved less to the landowner than it has, it is ground for an argument for, rather than against, the-proposition that it has not meant to divest him of all interest in the land except as an ultimate instead of an intermediate result of the enforcement of the law. To my mind, the idea most agreeable with reason is that so long as a beneficial interest in land, possessed by the owner of the original title, is left undisturbed and capable of being enjoyed by him, he has not lost it. So long as it is required that proceedings must be taken by the purchaser of the interest of the State before any person, other than the original owner, can acquire this beneficial interest, in which proceedings, at the option of the owner of the original title, the interest of such purchaser may be extinguished or acquired, the owner has not been divested of all interest in the land, whether such interest is called “title” or something else. The original title is the only title which is or ever was in existence which carried with it as a necessary incident to its owner the beneficial interest in the land.

Due process of law to deprive one of land means, I take it, something more than a legislative declaration that the title to land has been acquired by the State, when such declaration is coupled with the further one that, before the title so acquired- can draw to it any interest in the land which is beneficial, it must be offered to the landowner at a fixed price, be refused, and then enforced by judicial proceedings in which such title is to'some extent open to attack by the landowner. This court declared, in Corrigan v. Hinkley, 125 Mich. 125, that the owner of the title to State tax lands had not even a colorable right of entry, and that in taking possession he was a trespasser upon the lands described in his deed until he had complied with the statute requiring notice to be given to the owner. To the same effect is Huron Land Co. v. Robarge, 128 Mich. 686, and other decisions. See, also, O’ Connor v. Carpenter, 144 Mich. 240; Griffin v. Jackson, 145 Mich. 23; John Duncan Land & Mining Co. v. Rusch, 145 Mich. 1; Toolan v. Longyear, 144 Mich. 55; Adkin v. Pillen, 136 Mich. 682; Boucher v. Trembley, 140 Mich. 352. It is these and similar decisions which in my opinion support the proposition that the words “absolute title,” however many times employed, are conveniently descriptive, rather than legally definitive, of the extent of the interest conveyed to and possessed by the purchaser of State tax lands, and that it is open to the court to hold that the owner of the original title is not by sale of his lands for taxes and expiration of the period of redemption divested of all interest in the land. Under certain conditions, lands held as State tax lands may be deeded by the auditor general to the State, and be sold at the State land office. The State does not in this way acquire a new interest in the land, and is not a purchaser from the auditor general. It is a measure of convenience. The legislative notion seems to have been that such lands had ho longer any proprietor representing the original title — were abandoned. If inquiry develops the fact that the lands are occupied (if abandonment is negatived) the lands remain in the class known as State tax lands. It is only unoccupied lands which are so subject to disposition. Meagher v. Dumas, 143 Mich. 639. An unexpired right of redemption will make the deed to the State and from the State to the purchaser, under this provision of the law, ineffectual. Morse v. Auditor General, 143 Mich. 610.

If I am right in concluding that the owner of the original title has still an undivested interest in such lands, at least to the point of his abandonment of the lands, he is interested in the proceedings instituted for the purpose of connecting the beneficial interest in the land with the title acquired from the State — proceedings to divest him of his remaining interest, whatever it is. As the right of the State to treat the land as abandoned depends upon the ascertainment and declaration of a fact, the owner against whose interest the fact may be found ought not to be concluded without opportunity to be heard. Upon the trial of the instant case, plaintiff introduced in evidence a deed from the commissioner of the State land office, dated December 12, 1904, conveying the land. Defendant introduced a deed of the same land from the auditor general to the State under the provisions of section 12?, Act No. 206, Pub. Acts 1893, as amended by Act No. 10?, Pub. Acts 1899, dated September 21, 1904, and testimony undisputed to prove that by tenant defendants were in actual occupancy of the land from March 1, 1904, to the time of the trial. The land was not therefore abandoned land at the time the auditor general and commissioner of the State land office determined that it was abandoned, if the statute duty of those officers was performed, as we assume that it was. The deed from the commissioner to the plaintiff is prima facie evidence of title. Act No. 211, Pub. Acts 1905. This evidence was met, in my opinion, by the proof of actual occupancy of the land for more than six months before the deed was executed. Plainly, the statute does not mean that the owner in possession shall be dispossessed or be put in a position where he may be dispossessed by a false determination of the fact of occupancy. It is provided, however, that the determination, right or wrong, shall conclude him, unless he attacks it within six.months after it is made. Section 12? of the tax law, considered as a statute of limitations, is invalid because no notice, public or other, of the determination of abandonment, is provided for. It is invalid under the rule of O’Connor v. Carpenter, supra, because requiring the owner in possession to attack the determination that the land is abandoned. It is invalid as an attempt to divest the owner of the original title in possession of an interest in the land without hearing and without judicial investigation and determination. As matter of practice, adjoining, occupying owners of land, holding the same relations with the State, may be placed in wholly dissimilar positions as to their rights by a determination, made without notice, that the premises of one of them are abandoned. It is said that the right to question the validity of the title acquired from the State remains; but, in the case supposed, the right to pay the taxes and penalty after notice does not remain to one and does to the other of these adjoining owners. Also, it will be perceived that, if notice of the determination of abandonment should be received, the owner having the knowledge may pay the taxes, interest, and charges, have returned to him all invalid taxes, and discharge absolutely the interest of the State in the land.

The judgment should be reversed, and a new trial granted.


source: Caselaw Access Project

author:
Carpenter, J.
      Montgomery, J. Ostrander, J.

license: Public Domain

text:
    DOWNER v. RICHARDSON.
    Taxation —State Tax Homestead Lands — Deeds — Record — Effect of Delay.
    Delay in executing and recording the deed from the auditor general to the commissioner of the State land office, provided for by section 127 of the general tax law (as amended by Act No. 107, Pub. Acts 1899), does not affect the conclusiveness of the determination that the lands are State tax homestead lands. Carpenter and Moore, JJ., dissenting.
    Error to Bay; Shepard, J.
    Submitted April 20, 1907.
    (Docket No. 116.)
    Decided July 1, 1907.
    Ejectment by Jane Downer against John Richardson and Mary Richardson. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      William A. Collins, for appellant.

      George R. Fox (James Van Kleeck, of counsel), for appellees.
   Carpenter, J.

This is an action of ejectment commenced April 18, 1905, to recover the possession of a certain lot situated in West Bay City. The defendants are in possession and are tenants of the owner of the original title. The plaintiff is the grantee in a deed issued by the State under the State tax homestead law. All the proceedings resulting in the issuance of said deed were regular, save this: The deed by the auditor general to the State of Michigan, provided for in section 127 of the tax law (Act No. 107, Pub. Acts 1899), was not made, as required by said section, within 90 days after the determination that the land came under the provisions of said section, and it was not recorded until more than six months after said determination. The determination was made May 12, 1904; the deed executed September 21,1904, and recorded November 15, 1904. The testimony of the defendants proved that the land was occupied at the time the proceedings resulting in the foregoing determination were taken, though the examiner reported, and the auditor general and commissioner of the State land office found, that it was unoccupied. The trial court directed a verdict in favor of defendants. Plaintiff asks us to reverse the judgment entered on said verdict.

Defendants have in this suit successfully assailed the determination of the auditor general and the commissioner of the State land office more than six months after said determination was made, and this presents the important question for our consideration: Have they that right ? Have they the right after the lapse of said six months to dispute the determination that the land was unoccupied? We have held that only unoccupied land was subject to the State tax homestead law. Meagher v. Dumas, 143 Mich. 639. We have also held that the determination that the land was unoccupied could not be attacked after the lapse of six months. Jackson, etc., R. Co. v. Lumber Co., 146 Mich. 204; Semer v. Auditor General, 133 Mich. 569. In none of these latter cases, however, was the court called upon to consider, as it is in this case, whether the rule is changed by the delay in executing and recording the deed. The precise question to be decided, then, is this: Did the delay in executing and recording the deed affect the conclusiveness of the determination that the land was unoccupied ? That depends upon the proper construction of the following portion of said section 127 of the general tax law (Act No. 107, Pub. Acts 1899):

“The determination of the auditor general and commissioner of the State land office in that regard shall be deemed tó be conclusive as to the facts therein stated, unless suit is instituted to vacate the same within six months as hereinafter provided. Within ninety days after such determination the auditor, general shall make a transfer by deed of all lands so determined by the auditor general and said commissioner of the State land office to come within the provisions of this section to the State of Michigan as to an individual, as provided in section seventy-two of this act so far as said section is applicable. Said deed or deeds shall be delivered to the commissioner of the State land office, who, after having said deed or deeds recorded in the register of deeds’ office, of the county where the lands are situated, shall file the same in his office. Upon the execution and delivery of said deed or deeds to the commissioner of the State land office, said commissioner shall hold said lands as State lands, subject to the provisions hereinafter contained. And no suit shall be instituted to vacate, set aside or annul the said determination of the said auditor general and the commissioner of the State land office made as aforesaid unless instituted within six months after the determination aforesaid. Any person desiring to file a bill or institute a suit to vacate the findings of the auditor general and commissioner of the State land office, as provided in this section, shall first pay to the auditor general all delinquent taxes returned to the auditor general on the lands in question, together with all interests, costs and charges, and shall purchase and pay for all bids and titles held by the State to such lands by paying therefor the amount bid by the State and all interest and legal charges thereon, as provided in section eighty-four of this act. * * * Any suit instituted for the purpose of setting aside the determination aforesaid may be commenced in the circuit court of the county of Ingham.”

The statute says that the auditor general “within ninety days after such determination shall make transfer by deed.” This language is explicit. The requirement that the commissioner shall at once place the deed upon record is almost equally explicit, for the statute says that on its delivery to him “he shall file the same in his office;” but this he is not to do until “after having said deed recorded in the office of the register of deeds in the county where the lands are situated.” We have, then, a positive statutory requirement that the deed shall be executed within 90 days, and at once recorded. I think there is an intimate relation between this requirement and the provision that the determination shall be conclusive unless assailed by suit within six months. I think the purpose of the requirement is to notify the landowner that said determination has been made in order that he may have the opportunity of assailing it. I also think that the provision that said determination shall be conclusive assumes that this notice has been given. It is clear from the portion of. the statute quoted in this opinion that the legislature intended to give the landowner an opportunity to attack the determination. The language: “Any person desiring to file a bill or institute a suit to vacate the findings of the auditor general and commissioner of the State land office * * * shall first pay * * * all delinquent taxes. * * * Any suit instituted for the purpose of setting aside the determination aforesaid may be commenced in the circuit court of the county of Ingham ”— was intended to give, and does give, the owner of the land an opportunity to prove in court that said finding was, as in this case, incorrect. There is no such opportunity unless the landowner is notified that the determination (which is conclusive unless assailed within six months) has been made; and therefore it is to be presumed that the legislature intended to make some provision (the adequacy of which it may determine) for notifying them. What provision has it made ? None whatever, unless it is to he found in the requirement under consideration. If this requirement is observed, if the deed is executed within 90 days and promptly recorded, as provided by the law, it does furnish such notice — that is, it furnishes a means by which the owner may acquire notice — and I can conceive of no other purpose accomplished by its observance. This reasoning convinces me of the correctness of the conclusion heretofore announced, viz., that the purpose of this requirement was to give the landowner notice of said determination, and it follows that, because this requirement was not observed, because this notice was not given, the determination was not conclusive. The legislature did not intend that the determination should be conclusive in such a case. The statute, fairly construed, makes the determination conclusive after the lapse of six months, when, and only when, the required notice is given. As that notice was not given in the case at bar, defendant had a right to assail the determination by proving that the land in question was occupied.

It is suggested that, though the delay in executing and recording the deed prevents the determination becoming conclusive at the end of six months, it will nevertheless be conclusive three months after the deed is executed and recorded. According to that argument, the determination in the case at bar became conclusive, not November 12, 1904 (six months after it was made), but February 15, 1905 (nine months after it was made, and three months after the deed was recorded). I cannot approve this argument. The legislature has said that the determination shall be conclusive at the end of six months, if the statutory notice has been properly given; that is, if the deed is executed and recorded in due season. It has not said that it shall be conclusive after the lapse of nine months if notice is improperly given, and we cannot give the statute that construction.

It is suggested that our statement in Jackson, etc., R. Co. v. Lumber Co., supra, that “the execution of the deed [by the auditor general] is a mere ministerial act to evidence the title,” is opposed to this opinion. I think otherwise. That statement was not a necessary part of that decision, and is not authority denying the proposition affirmed in this opinion. That proposition was not involved in that case; was not considered, and consequently was not there decided.

My attention has been called to Act No. 84 of the Public Acts of 1903, which reads as follows:

“After the expiration of six months from and after the time when any deed made to the State under the provisions of section one hundred twenty-seven of Act two hundred six of the Public Acts of eighteen hundred ninety-three, being the general tax law, and acts amendatory thereto, shall have been recorded in the office of the register of deeds for the county in which the land so deeded shall be situated, the title of the State in and to the same shall be deemed to be absolute and complete, and no suit or proceeding shall thereafter be instituted by any person claiming through the original or government title to set aside, vacate or annul, the said deed or the title derived thereunder: Provided, That as to all lands heretofore deeded to the State under the provisions of said section one hundred twenty-seven of said act two hundred six of the Public Acts of eighteen hundred ninety-three, the title of the State thereto shall be deemed to be absolute and complete after a period of six months from the taking effect of this act, and no suit or proceeding shall thereafter be instituted by any person claiming through the original or government title to set aside, vacate or annul said deed or deeds or the title derived thereunder.”

This act, if constitutional — and its constitutionality we do not determine — has no application to this case. The first part of the act does not apply, because this suit was instituted less than six months after the deed was recorded. The proviso does not apply, because the land in controversy had not, when said act was passed, been “deeded to the State under the provisions of said section 127.” Section 127 is neither in terms nor by implication repealed by said Act No. 84, and it therefore continues to be the law which determines the rights of the parties to this case. Lake Superior, etc., Iron Co. v. Auditor General, 79 Mich. 351; Regents of the University v. Auditor General, 109 Mich. 134.

Plaintiff insists that the issue of occupancy should have been submitted to the jury. The trial court directed a verdict upon the assumption that the proof of occupancy was undisputed. Plaintiff now contends that this assumption was erroneous. He should have made this contention in the trial court. He did not make it. He there remained silent. It may fairly be inferred that the assumption was based on his silence. It is now too late to speak.

I think the judgment should be affirmed.

Moore, J., concurred with Carpenter, J.

Montgomery, J.

Under section 127 of the tax law, the determination of the auditor general and commissioner of the State land office that the lands are vacant and unoccupied may be attacked only if the attack be made within six months after such determination. As the determination does not vest title in the State if the precedent proceedings are jurisdictionally defective, this provision presupposes title in the State, and was intended to fix the time during which as a matter of grace those interested might be permitted to open up the case and disprove the facts found. There doubtless exist in many cases equitable considerations which might induce a liberal construction of a statute granting this privilege; but I am not able to reach the conclusion that the date of this determination is by this statute fixed as the date of record.

It is suggested that the record is intended to act as notice to the original owner or the public, and that, when six months after determination is spoken of, six months after determination, followed by the execution and record of the deed, was meant. A difficulty in placing this construction upon the statute is encountered in the language fixing the time for executing the deed as within “ninety days after such determination.” I think it does violence to this language to hold that the determination referred to is not complete until the 90 days have elapsed, and the deed is recorded.

I am constrained to hold that the judgment should be reversed.

McAlvay, C. J., and Grant, Blair,'and Hooker, JJ., concurred with Montgomery, J.

Ostrander, J.

In view of the conclusion reached in the case of Griffin v. Kennedy, ante, 583, I concur with Mr. Justice Montgomery in reversing the judgment.


author: Hooker, J.

text:
    LOGAN v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroads — Crossing Accident —Defective Crossing —Evidence — Sufficiency.
    In an action against a railroad company for personal injuries resulting from the overturning of a sleigh, in which plaintiff was riding, on an alleged defective highway crossing, evidence examined, and held, not error to refuse to direct a verdict for defendant.
    2. Same — Instructions—Propriety.
    In an action against a railroad company for personal injuries resulting from the overturning of a sleigh, in which plaintiff was riding, on an alleged defective highway crossing, there being evidence that the short tongue connecting the two bobs dropped, caught on the rail, and upset the sleigh, it was not error to refuse to instruct the jury to find for the defendant, in case the accident was so caused, there also being evidence that the crossing was not in proper condition, and there being nothing to show that if it had been the short tongue would not have passed over in safety.
    3. Same.
    An instruction that the undisputed evidence showed that the sleigh was not upset because of the narrowness of the roadbed on defendant’s right of way, and that the question of the width of the roadbed is of no importance, was properly refused, because, while the narrowness of the way cannot be said to have caused the upsetting of the sleigh, plaintiff’s injuries may have resulted from it.
    4. Same — Necessity of Request.
    An instruction in the language of the statute that it was the duty of defendant to restore the highway to its former condition, as near as might be, is not objectionable on the ground that it requires the defendant to build the approaches as wide /as the highway, a more specific instruction on that ground not having been requested.
    Error to Lenawee; Chester, J.
    Submitted October 4, 1906.
    (Docket No. 6.)
    Decided July 1, 1907.

      Case by Ena Logan against the Lake Shore & Michigan Southern Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Dallas Boudeman, for appellant.

      Smith, Baldwin & Alexander, for appellee.
   Hooker, J.

The defendant has appealed from a judgment for damages, rendered in a negligence case, in favor of the plaintiff. The latter was riding, with others, upon spring seats placed in a wagon box, upon a bob sled, and was thrown out by the upsetting of the same just after crossing defendant’s railroad track, which crossed'the highway at an angle somewhat acute. The cause of the upsetting is not conclusively shown. Plaintiff’s theory is that it was due to the failure of defendant to maintain crossing planks higher than the rails, by reason of which one of the runners of the rear bob clung to the rail after the other runner had left it, thereby causing the sled to slue and upset, and throw the occupants, including plaintiff, down the bank, which she claims to have been dangerously near, by reason of the narrowness of the highway, and an unnecessary turn therein at the edge of the track. There was evidence tending to show that the highway was as much as 16, and as little as 8 or 10, feet wide east of the track, that before the railroad was built the road was practically level, and that, when it constructed the railroad, defendant built the approach from 6 to 12 feet high for the purpose of a crossing, and that it had not been widened or changed since; also that at the time of the accident the planks upon the crossing were half an inch or more lower than the east rail, which is admittedly the one involved in the accident, whatever theory should prevail as to its cause.

The defendant claims that the planks were not lower than said rail, that the highway was in a condition reasonably safe and fit for travel, and that neither a defect in the planking, nor the condition of the highway, caused the sled to upset, but that the cause of the accident was the dropping of the short tongue connecting the two bobs, through the failure of the bolt attaching the short tongue qnd reach together, after which the short tongue struck against the east rail, and caused the front of the rear bob to lift up and overturn the sled, the fright of the horses contributing thereto. There was evidence supporting this theory, and, were the question one for us to decide, we should think that it was supported by the weight of the testimony. On the other hand, there was evidence that the planking was not maintained in compliance with the law, and it is by no means certain that, had it been in proper condition, the short tongue would not have passed safely over the rail, by reason of a want of opportunity for it to get under the ball of the rail, as it is called. Therefore it was not error for the circuit judge to refuse to instruct the jury to render a verdict for the defendant, nor did he err in declining to instruct them that, in case the accident was so caused, they must find for the defendant upon the ground that the defect in the planking was not the proximate cause of the injury. White v. Township of Riley, 113 Mich. 300; Shaw v. Township of Saline, 113 Mich. 342; Gage v. Railroad Co., 105 Mich. 335; Simons v. Township of Casco, 105 Mich, 591.

The answers to the questions submitted to the jury exclude the inference that the jury may have found that the falling of the tongue caused the accident. They expressly say that it did not occur by reason of the tongue coming in contact with the rail, and that it “would * * * have occurred although the end of the tongue had not fallen to the ground.” There being evidence that the plank were below the tops of the rails, from which it is inferable that the runner dragged upon the rail (which might have been a cause of the accident), it was not error to leave the question of the sufficieñcy of the crossing in this respect to the jury. The undisputed evidence shows that the sleigh was not overturned by reason of the narrowness of the highway at that point. It is clear that it occurred close to the track. Not only is there much evidence that its width at that point exceeded fourteen feet, and none that it was less at that point, but there is none indicating that the runner ran over the edge of the slope, while it is clearly shown that the box lay on top of the roadway upon its side after the sled was upset.

Defendant’s eighteenth request was as follows:

“The undisputed evidence in this case shows that the sleigh in which plaintiff was riding was not upset because of any narrowness of the roadbed on defendant’s right of way. The question in the case as to the width of the roadbed .is of no importance, and the jury should not find a verdict in favor of plaintiff and against defendant because of the narrowness of the said roadbed.”

Had the first sentence of this request stood alone, it should have been given, but the second sentence should not have been; for, while the narrowness of the way at that point can be said not to have caused the upsetting of the sled, plaintiff’s injuries may have resulted from it, and therefore the question of the width of the road was ' of some importance, unless we shall say that a width of fourteen feet was sufficient, which we cannot do; the question being one for the jury. The circuit judge charged the jury that:

“You are also instructed, gentlemen, that it- was the duty of this defendant, when it built the road across the public highway, to restore the highway to its former condition, as near as might be; that it was defendant’s duty to put and keep plank each side of the rails of its railroad, and also between the rails, in a good condition, and one-half inch above the rails. Further, you are instructed that, in constructing and maintaining this crossing so that it should be reasonably safe for public travel, the defendant is not obliged to anticipate that some one might come over that crossing with a bob sleigh, with a short tongue dragging upon the ground, and that such short tongue might catch in one of its rails and upset the sleigh, and therefore defendant would not be negligent because it did not anticipate such an occurrence. * * *
“And it is for you to say whether or not this crossing was in reasonable repair, so that it was reasonably safe for public travel, on the 15th day of January, 1905, and, if not in reasonable repair, whether or not such want of reasonable repair caused this accident. If it was in reasonable repair, then plaintiff would not be entitled to recover. Or if it was not in reasonable repair, but such want of reasonable repair did not cause the sleigh to upset and produce the accident, then plaintiff would not be entitled to recover. But if it was not in reasonable re-' pair, and such want of reasonable repair did cause this sleigh to upset and produce the accident, then plaintiff would be entitled to recover, if she and her driver were not guilty of any negligence which contributed to this injury.”

These instructions stated the duty of the defendant as to the restoration of the highway in the language of the' statute, and its maintenance in accordance with the rule stated in Maltby v. Railway Co., 52 Mich. 108, and Jeffrey v. Railroad Co., 108 Mich. 223 (31 L. R. A. 170). Counsel now contend that this rule would require the railroad to build the approach as wide as the highway. ■ That involves a construction of the statute which he did not suggest or request. The restoration required was limited by the words £ £ as near as may be, ” and it was thus stated. The jury would naturally understand from that language that a strict reproduction of pre-existing conditions was not required by the statute, and, if more specific instruction was desired, counsel should have so informed the trial judge. Many objections were made to the reception and exclusion of testimony. We have examined these, and find nothing that requires a further allusion to them than to say that they should not be considered a sufficient cause for reversal.

We are asked to reverse the cause for the reason that a new trial was denied, upon the ground that the verdict was contrary to the evidence. We have practically covered this question by what has been said.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Ostrander, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    WINELAND v. KNIGHTS OF THE MACCABEES OF THE WORLD.
    1. Beneficial Associations — By-Laws — Agreements in Certificate.
    The parties to a mutual benefit certificate may expressly agree to be bound by after-enacted by-laws.
    2. Same — Reinoorporation—Plan of Assessment — Change — Estoppel.
    After the lapse of 10 years it is too late for one who was a member of a beneficial association when its reincorporation took place to insist that the certificates then in existence shall be treated, as'to assessments, otherwise than as if they had been issued by the association after the reincorporation; especially when the member is insisting that a provision of the contract, ultra vires the .powers of the association under the law under which it was orginally incorporated, is binding upon it by reason of increased powers given by the law under which it reincorporated. ,
    3. Same — Plan of Assessment — Change.
    Where a beneficial association has a right, under its certificates and by-laws, to increase the number of its assessments to meet the demands arising from the death of members, it may levy fewer assessments, at a greater rate, so long as the increase in rates is proportional, young and old members alike contributing; and whether such action be a mere detail in management, aimed at procuring for distribution the same sum of money in a different way, or intended to actually increase the contributions over present necessities for distribution and to accumulate a fund, it may be, so long as it is proportional and reasonable, supported, as against a protesting member, by his agreement in his application to conform to and be governed by laws to be from time to time made by the representative governing body of the association.
    4. Same — Disability Benefits — Cessation of Assessments.
    A member cannot claim the right to a disability benefit payable yearly without payment of assessments, after he attains a certain age, as provided by an amendment to the by-laws since repealed, where his certificate contains no such provision, and the whole matter of assessments is one of management to be from time to time amended as the experience of the association demands, and the member agreed to be bound by amendments to the laws affecting only the part of the endowment which he should receive and the conditions of continued membership reasonably imposed.
    5. Same — Disability Benefits — Eight to Withhold.
    Where, at the time a benefit certificate was issued, providing for the payment of a part of the endowment annually after the member attained the age of 70 years, the association had not the statutory power to make such a contract, but it subsequently reincorporated under a statute giving it that power, the association could not afterwards, under its reserved power of amendment, so change the contract as to eliminate entirely the provision for old age benefits.
    6. Same — Waiver of Eights.
    That a member, entitled under his certificate to old age benefits, continued his membership without protest and paid his assessments after an amendment in 1899, eliminating the provision as to benefits at the age prescribed in his certificate, and also after an amendment in 1901, eliminating old age as a cause of disability, did not operate as a waiver of his right to protest in 1904 against the entire elimination of the old age benefits from his certificate, where the law of 1904 contains the first demand upon him to agree that the association’s construction of the effect of its earlier action shall bind him, that the amendment of 1899 applied to existing contracts.
    Appeal from St. Clair; Law, J.
    Submitted January-11, 1907.
    (Docket No. 22.)
    Decided July 1, 1907.
    Bill by Dan St. Clair Wineland against tbe Knights of the Maccabees of the World to enjoin changes in the terms of his benefit certificate. From a decree dismissing the bill, complainant appeals. '
    Reversed, and decree entered for complainant.
    Defendant was organized in the year 1885, under the provisions of Act No. 104, Laws 1869, entitled “An act to provide for the incorporation of co- operative and mutual benefit associations,” approved April 3, 1869. Articles of association are required to set out the objects of the corporation, the number of classes in such corporation, and the object of the division of such corporation into classes, all to be definitely stated, and the terms and conditions of membership therein. Management is by trustees, chosen by members, with power to adopt by-laws and to change them at pleasure—
    “Except so far as they relate to the rights of the corporation to assess their members, or the members of a particular class of such corporation, and except, also, so far as said by-laws affect the rights and benefits belonging to or to be derived by the members of such corporation.”
    Complainant became a member of the corporation in 1892, in June. He signed an application, in which he stated:
    ‘ ‘ I hereby agree that these statements in this application and the constitution and laws of the supreme tent * * * shall form the basis of this contract for endowment; * * * neglect to pay any assessment which shall be made by the supreme tent, within the time provided by the constitution and laws, or neglect to pay the dues, * * * shall vitiate my beneficiary certificate and forfeit all payments made thereon. * * * This application and the constitution and laws of the supreme tent now in force or that may hereafter be adopted are made the sole basis of the contract between myself and the supreme tent and I, for myself and my beneficiaries, agree to conform and be governed thereby.”
    At the time the application was made, and the certificate hereinafter set out was issued, a by-law provided that upon a member reaching 70 years of age there should be paid to him annually one-tenth part of the sum for which his certificate was issued; such payments not to exceed, in the aggregate, the sum specified in the certificate. The statute gave defendant no power to pay, or to promise to pay, to a member a sum of money upon his attaining the age of 70 years. Walker v. Commissioner

      of Insurance, 103 Mich. 344;; Calkins v. Bump, 120 Mich. 335. No such object was stated in the articles of association. The rates of assessment per $1,000 of indemnity were fixed at sums varying from 40 cents at age 18, to $1 at age 50. The laws otherwise provided that, when the endowment fund contained less than $3,000, an assessment should be ordered upon all members, and the power of fixing the rate of assessment was asserted. Complainant was 50 years of age, and defendant issued to him a certificate, which he now holds, in the following form:
    “No. 8,494.
    “STATE OF PENNSYLVANIA.
    “Rate of Assessment, $2.00.
    “Occupation, Blacksmith. Age, 50.
    “ Astra Castra. Numen Lumen.

    “The Supreme Tent
    “Knights op the Maccabees op the World.
    “ Endowment Certificate of Membership.
    “ This Certifies that Sir Knight Dan St. Clair Wine-land has been regularly admitted in and is recognized as a member in good standing of Crescent Tent, No. 47, located at Pittsburg, and that in accordance with and under the provisions of the laws governing the order, his legal beneficiary, named herein, is entitled to receive one assessment on the membership, but not exceeding in amount the sum of two thousand dollars, and the said sum will be paid as a benefit to Mary A. Wineland, his wife, upon satisfactory proof of his death together with the surrender of this certificate, provided he shall have in every particular complied with the laws, rules and regulations of the order governing members and their beneficiaries, which are now in force, or may hereafter be adopted by the supreme tent, or the subordinate tent to which he belongs and has not obtained his membership by fraud or misrepresentation as to his age, physical condidition or occupation when admitted to membership. If his death shall result from any occupation prohibited by the laws of the association, or he shall form personal habits in violation of the laws of the order, then this certificate shall be null and void and without force.
    “In case of permanent and total disability, or upon attaining the age of seventy years, he will be entitled to receive such part of said endowment, as provided in the laws of the order which are now in force, or which may hereafter be adopted by the supreme tent.”
    In July, 1893, the provision for paying a member benefits upon his reaching the age of 70 years was stricken out of the laws, and there was substituted one for the payment of benefits to those totally and permanently disabled by disease, accident, or old age, with a further provision for monthly assessments, and for paying the same rate of assessment “thereafter so long as he remains continually in good standing in the order.” In 1893, the legislature by Act No. 119, Pub. Acts 1893, defined a fraternal beneficiary society, provided for incorporation of such societies, permitting, but not requiring, the reincorporation of any society, within the definition, under its provisions. 2 Comp. Laws, §§ 7740-7759. Among the powers granted to such societies is the one of paying benefits in case of accident, sickness, disability, or old age of members. Under this act, defendant reincorporated in February, 1894. Among the objects of the association stated in the articles then filed was one to pay benefits to members totally and permanently disabled as a result of disease, accident, or old age. In 1895, defendant so amended its laws as to provide for relieving all members at age of 70 years from further payment of dues and assessments, and entitling such member to receive from the disability fund annually one-tenth part of the sum for which his certificate was issued. There were further amendments to the laws in 1897, 1899, 1901, and 1904, and in 1901 and 1904 amended articles of association were filed. The change in laws in 1899 eliminated the old age benefit feature unless there was total and permanent disability arising from old age and the member was 70 years of age. In 1901, the rate of assessment to be paid by complainant was fixed at $1.40 per thousand, and the provision for benefits to members on account of old age eliminated from the articles of association and from the laws. At the regular biennial review of the supreme tent, the governing body of the association, held in July, 1901, a commission on rates was appointed to inquire into and examine the past experience of defendant, and determine whether the rates in force were sufficient to guarantee the continued existence of the order, and to enable it to carry out its contracts of life insurance with its members. The commission so appointed consisted of the supreme commander and four other'members. The committee was instructed to report at the next meeting of the supreme tent, to be held in the month of July, 1904. The committee appointed a competent actuary to investigate and to report as to the adequacy of the rates then charged, and to make a compilation of statistics, and a history of the membership with reference to the expected further contribution of its members, and the future liability of the order under its contracts. After this time, and prior to July, 1904, a careful and thorough investigation was made by the actuary so employed with the aid of the committee and the officers and employes of the order, and the results were embodied in a report of the committee made at a review of the supreme tent held in July, 1904. The changes made in 1904 -were predicated on this report. Among the changes made were the following : Fixing new and advanced rates of assessment, that for one joining at the age of 50 years being $2.75 per thousand (section 329); permitting members under the age of 51 years at time of joining the order to elect before January 1, 1905, to re-rate as of date of becoming a member, upon condition that all disability benefits were waived (section 330); putting all members who were more than 55 years old on January 1, 1905, and who did not elect to re-rate as at age of entry, upon a rate of $3 per thousand (section 335); providing for additional assessments (over fixed monthly assessments) if necessary to meet obligations (section 340); providing for payment of total and permanent disability benefits to members who did not elect to re-rate (section 409); providing that monthly rates paid by all (then) present members should provide death and total and permanent disability protection to age 55, at which time (age) each member should pay the monthly rate of $3 per thousand, and that all those permanently and totally disabled should continue to pay monthly rate, fines, dues, and other charges, as though they were not disabled (section 410); defining total and permanent disability (section 411); providing for payment of disability benefits of one-tenth face of certificate annually, payable quarter-yearly (section 412); repealing all laws, rules, and regulations theretofore existing and in conflict with the laws then adopted (section 569). Notice of the purpose to chanige the articles and the laws was duly published in The Bee Hive, the official organ of the association. This notice came to the attention of the complainant, and on the 15th day of July, 1904, he filed with the supreme tent a protest against the changes of which he now complains, which protest is as follows:
    “To the Supreme Tent, Knights of the Maccabees of the World:
    ‘ ‘ Whereas, notice has been given by the publication in the official organ of May 18, 1904, of certain revision of and amendments to the laws and articles of association of the supreme tent of the Knights of the Maccabees of the World.
    “Wherein and whereby it is proposed inter alia to increase the monthly rates of all members over 60 years of age above the monthly rates as now established and fixed by my contract, also to change the period of disability protection as now fixed by my contract, also to strike down the endowment feature of my contract, under which I am entitled to the maturity of my contract at the age of 70 years and in other material respects to change and alter my contract to my detriment, and to materially change and alter the entire plan of protection from what has heretofore been established by the order.
    “This is to give notice that I respectfully but positively decline to accept any such change in my contract and enter this my protest against any action of the supreme tent having for its purpose the making of such change or alteration of my contract.
    “Under my contract the monthly rate is fixed at $2.00 and changed to $2.80, and this you may not change without my consent.

      “My contract is one of endowment, and I am entitled thereunder to have it matured at the age of 70 years; all payments of dues and rates by me to cease at .that age and the sum of $2,000.00 to be then paid to me in fixed installments, as now provided by law. _
    _ ‘11 am entitled under my contract to total disability protection, at my present monthly rate, until the maturity of my certificate.
    “I decline to consent to the surrender of any of these rights under my contract and deny the right of the association to make any law that will impair the obligation of its contract.”
    Complainant paid assessments 74 to 191, inclusive, at rate $1 per thousand; from 192 to 230, inclusive, he paid at rate of $1.40 per thousand; and, beginning with assessment 231, January 1, 1905, he paid to May, 1905, at the rate of $3 per thousand — his total net contribution (deducting percentages for management) being $321.80, which it is claimed is less by $141.43 than the proper amount which the experience of the defendant shows should have been paid by him.
    On the 16th day of January, 1905, the complainant filed his bill of complaint in this case. He prays:
    (а) That sections 329, 330, 333, 335 of chapter 8 of the by-laws of defendant corporation, as adopted in July, 1904, be declared void so far as they apply to certificates issued by the defendant corporation prior to July 26, 1904.
    (б) That the defendant corporation, its officers and agents, be perpetually restrained from putting into effect and enforcing or in any way attempting to enforce the provisions of sections 329, 330, 333, 335 of the by-laws adopted July, 1904.
    (c) That the defendant corporation, its officers and agents, be perpetually restrained from levying and collecting any assessment according to the rates set forth in section 329 of chapter 8 of the by-laws adopted in July, 1904, upon complainant and such other members as were admitted to the order prior to July, 1904.

      (d) From canceling and annulling complainant’s certificate so long as complainant shall pay the rate of assessment provided by articles of association and by-laws of 1895 of defendant corporation and otherwise remains in good standing in the order.

      (e) That section 569, chapter 10, of the laws adopted in July, 1904, be declared void in so far as it effects the repeal of section 198 of the laws adopted February 11,1891, and section 188, laws of 1895, providing for the payment of one-tenth part of the face of the certificate annually after reaching the age of 70 years, and the relieving of the member from the payment of dues and assessments after said age, and so far as it effects a repeal of the rates of assessments adopted in 1895.
    Defendant answered the bill, and the proofs were taken in open court. From a decree dismissing the bill of complaint, complainant has appealed.
    • Cyrus A. Hovey (Robert H. Bunker, of counsel), for complainant.

      D. D. Aitken (Lincoln Avery and De Vere Hall, of counsel), for defendant.
   Ostrander, J.

(after stating the facts). Assuming that a court of equity may take jurisdiction to restrain action of the defendant corporation violative of contract rights, and to preserve in force a contract of insurance according to its terms (Langan v. Supreme Council Am. L. of H., 174 N. Y. 266; Messer v. Grand Lodge A. O. U. W., 180 Mass. 321; Meyer v. Insurance Co., 73 N. Y. 516), a jurisdiction which in this case is not questioned, we have investigated, with no little labor, the respective claims of counsel, the statutes which have been referred to, the history of defendant so far as it is disclosed, and the relations which have existed between defendant and this complainant. Complainant’s protest does not attack the regularity of the action which the representative body has taken. It is admitted that his status as a member cannot be learned from his certificate, and that the laws of defendant, the statute, and his application must be consulted to ascertain and to state his rights. His contention is that the rate of assessment is fixed, for him, by the certificate and by the by-law in force at the time he became a member. He concedes' that the rate of assessment he should pay is $1.40 a thousand, instead of $1 a thousand, not because the defendant had the right to increase the rate without his consent, but because by paying the increased rate he waived the right to complain. He contends that by the certificate he is promised a benefit upon attaining the age of 70 years, the amount thereof being fixed by the by-law in force in 1893 at one-tenth, annually, of the sum for which he was insured, and that the contract was not in this respect ultra vires. If it was ultra vires the powers of defendant when made, the objection was removed by the act of reincorporation, aided by the by-law passed in 1895, which not only re-enacted the law of 1893 as to the amount of endowment to be paid annually, but relieved the member from payment of any assessments after becoming 70 years of age. Stated broadly, the contention for defendant is that, to the extent that the certificate promises benefits to complainant, they may not be diminished by any change in the articles or in the laws of defendant; to the extent that benefits are made to depend upon the laws of defendant in force when the certificate was issued, and (or) thereafter adopted, complainant is bound to accept the benefits which, when his certificate matures, the laws then in force provide to be paid; that the rate and the number of assessments are made by the contract to depend, and must of necessity depend, upon the exigencies and the experience of defendant.

In so far as arguments have been addressed to the point that the parties to a mutual benefit certificate máy expressly agree to be bound by after-enacted by-laws, they are answered in favor of the validity of such contracts by a previous decision of this court (Borgards v. Insurance Co., 79 Mich. 440), and, we think, by the weight of authority (Ross v. Modern Brotherhood of America, 130 Iowa, 693; Supreme Commandery K. of G. R. v. Ainsworth, 71 Ala. 449; Beach v. Supreme Tent K. of M., 177 N. Y. 100, 105; 1 Bacon on Benefit Societies and Life Insurance [3d Ed.], §§ 185-188). See collection of cases in note to Supreme Council Am. L. of H. v. Champe, 63 C. C. A. 282. Such an agreement being found — and there can be no doubt that it was made in the present case — the effect of the particular by-law upon the particular member depends upon whether it was one which the association might lawfully make, whether it should be applied retroactively, whether it disturbs vested rights, whether it is reasonable; some or all of which considerations, and others, may be, notwithstanding the agreement, involved in any case. So far as any such considerations seem to be involved here, they will be noticed, and may be conveniently discussed under the heads the “assessments,” and the “disability benefits.”

As to assessments. No limit is fixed in the statute of 1869, or in that of 1893, or in the laws of the order, of the number of assessments which may be made. Indeed, -it is contemplated that assessments shall be made whenever necessary to pay promised benefits. It is true that the laws of 1893, 1895, .1897, and 1899 fixed a rate of assessment and provided that a member should pay the same rate of assessment so long as he remained continually in good standing. This provision did not exist at the time complainant became a member, unless its equivalent is found in the statute of 1869. It is there provided that the right to change the by-laws should exist, “except so far as they relate to the rights of the corporation, to assess their members, or the members of a particular class of such corporation, and except, also, so far as said by-laws affect the rights and benefits belonging to, or to be derived by the members of such corporation.” One of the powers incident to corporate existence, and implied in the absence of express restrictions, is the power to make bylaws for the government of the corporation. Under the law of its organization, this power of this corporation was restricted. The provision above recited, read in connection with the requirement that the terms and conditions of membership should be stated in the articles of association, must be construed to mean that the terms and conditions of membership so expressed should not be changed by the adoption or amendment of by-laws. In this view, the application and the certificate, supplemented by the laws of defendant, fixed complainant’s rate of assessment, and his agreement that the laws thereafter adopted should be the basis of the contract means those laws which the defendant had the right to adopt. But there was no such restriction in the law of 1893, under which defendant reincorporated, presumably with the consent of complainant, and the question arises whether such reincorporation, and the consent of members thereto, had any effect upon the terms and conditions of complainant’s contract. We are of opinion that after the lapse of 10 years it is too late for one who was a member when the reincorporation took place to insist that the certificates then in existence shall be treated otherwise than as if they had been issued by the defendant after such reincorporation, especially when the member is insisting that a provision of his contract, ultra vires, the powers of defendant under the act of 1869, is binding upon defendant because of increased powers given by the statute of 1893. Whether the changes with respect to assessments made in 1904, against which he protested, are within these powers, remains to be considered. We have no doubt that it was lawful, and no violation of contract rights, for defendant to increase the number of assessments to meet the demands arising from the death of members. There seems to be no good reason why fewer assessments, at a greater rate, should not be levied, so long as the increase in rates is proportional; young and old members, alike, contributing. Whether such action be a mere detail in management aimed at procuring for distribution the same sum of money in a different way, or intended to actually increase the contributions over present necessities for distribution and to accumulate a fund,' it may be, so long as it is proportional and reasonable, supported, as against a protesting member, by his agreement in his application to conform to and be governed by laws to be from time to time made by the representative governing body of the association. While courts are not agreed upon this proposition, we are inclined to the views expressed in Fullenwider v. Supreme Council Royal League, 180 Ill. 621; Messer v. Grand Lodge A. O. U. W. , 180 Mass. 321; Reynolds v. Supreme Council Royal Arcanum, 192 Mass. 150; Conner v. Supreme Commandery Golden Cross (Tenn.), 97 S. W. 306. We agree with the court below that the increased assessments are not, in view of the conditions disclosed, unreasonable. Whether they evidence a departure from the statute purpose and plan of existence of such association is a question not presented.

As to disability benefits. The complaint is that the plan of defendant has been modified in such manner that upon attaining the age of 70 years appellant may not receive' $200, annually, without payment of assessments. As to the assessments after attaining the age of 70 years, no provision exempting members from paying them existed when complainant became a member. Such a provision was adopted in 1895, and was subsequently repealed. The certificate contains no such provision, and the whole matter of assessments was one of management to be from time to time amended as the experience and necessities of defendant required. The claim of complainant is based upon an amendment to defendant’s laws made after he received his certificate. Manifestly, a member may not agree to the exercise of the power to amend and repeal by-laws until such time as an amendment suits him, and then insist upon the want of power to further amend or repeal. But we rest our decision upon the ground that complainant agreed to be bound by amendments to the laws affecting only the part of the endowment which he should receive and the conditions of continued membership reasonably imposed. No contract rights were violated. See cases hereinbefore cited, and, also, Wright v. Insurance Co., 193 U. S. 657.

The provision for paying some benefit to a member on his attaining the age of 70 years is, we think, affected by different considerations. It is an express promise, found in the certificate. It became effective, so far as power to make it is concerned, by the reincorporation of defendant. A reasonable construction of the contract, and the one we adopt, is that by the agreement complainant is not bound to submit to an elimination of the provision for old age benefits, but only to the reasonable fixing, by the laws, of the part of the endowment which he shall receive. That such a construction should be made, when it is reasonable, is held in Supreme Council Am. L. of H. v. Jordan, 117 Ga. 808; Russ v. Supreme Council Am. L. of H., 110 La. 588; Newhall v. Same, 181 Mass. 111; Langan v. Same, 174 N. Y. 266; Williams v. Same, 80 App. Div. (N. Y.) 402; Beach v. Supreme Tent K. of M., 177 N. Y. 100; Hale v. Equitable Aid Union, 168 Pa. 377; Gaut v. Supreme Council Am. L. of H., 107 Tenn. 603 (55 L. R. A. 465); Wuerfier v. Trustees, etc., Wisconsin Order of Druids, 116 Wis. 19. See, also, Knights Templars’, etc., Indemnity Co. v. Jarman, 187 U. S. 197. The determination of defendant to no longer engage in the business of furnishing benefits to members upon their reaching the age of 70 years does not necessarily relate to certificates outstanding when the change was made. The power of defendant to make such a law retroactively effective is not involved, and for this reason and others this case and Borgards v. Insurance Co., supra, and Chambers v. Supreme Tent K. of M., 200 Pa. 244, may be distinguished. The conclusion herein expressed is in agreement with that reached in the court below; but that court was of opinion that complainant had waived his right to now protest against the changes made in 1893, and again in 1901, relieving defendant of the obligations to pay anything upon the member reaching the age of 70 years. The court found the waiver in the following facts: The law of 1899 eliminated the provision as to benefits at age of 70 years. The law of 1901 eliminated old age as a cause of disability. Complainant without protest continued his membership and paid his assessments until July, 1904. Certain other changes were made which might be treated as compensating for rights withdrawn. We do not think these facts controlling of complainant’s rights. The law of 1904 contains the first demand upon him to agree that defendant’s construction of the effect of its earlier action shall bind him; that the amendment of 1899 applied to existing contracts. For the reasons given, we regard his protest against increase of rates unfounded, as is also his claim to be released from rate paying at age of 70 years. Subject to future reasonable regulations, his contract with defendant entitles him to receive, at the age of 70 years, a part of the sum mentioned in his certificate, not less than one-tenth part thereof, annually.

The decree of the circuit court is reversed, and a decree conforming with this opinion will be entered in this court. Complainant will recover costs of both courts.

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


author: Carpenter, J.

text:
    MAJOR v. BREWSTER.
    1. Appeal and Error — Questions Considered — Immaterial Instructions.
    Whether an instruction which the verdict shows the jury had no occasion to apply was correct will not he considered on error.
    2. Estoppel — Claimant op Attached Property — Acts not Misleading.
    Where an administrator notified the sheriff that property he had attached belonged to his intestate, and presented an affidavit to that effect at the hearing at which the order of sale was made, and the officer believed that the property belonged to the attachment defendant, the facts that the administrator, acting in his individual capacity, posted a notice of the sale, and attended it and bid in some of the property, do not estop him from maintaining an action as administrator against the sheriff for its value.
    3. Trial — Instructions—Necessity op Requests.
    In trover for the value of property attached and sold as the property of one who had previously transferred it to plaintiff’s intestate, it is not error to fail to charge upon the burden of proof in case the transfer was without consideration, in the absence of a request presenting that question.
    4. Same — Argument op Counsel.
    Where, in an action for the value of property attached and sold as the property of one who had previously transferred it to plaintiff’s intestate, defendant calls a witness who testifies that he was a creditor of the attachment defendant and investigated his financial condition, it is not prejudicial for plaintiff’s counsel to state in argument that witness “ did not proceed with any such proceedings as we find' in this case.”
    Error to Oakland; Smith, J.
    Submitted January 17, 1907.
    (Docket No. 51.)
    Decided July 1, 1907.
    Trover by Densmore Major, administrator of the estate of Dorcas Major, deceased, against William A. Brewster. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Aaron Perry and George E. Eckert, for appellant.

      William T. Hosner and Peter B. Bromley, for appellee.
   Carpenter, J.

Plaintiff brings this suit in trover to recover the value of certain live stock and farming implements which defendant, the sheriff of Oakland county, seized, and, by order of court, sold, under a writ of attachment against George Major, the plaintiff’s father and the husband of plaintiff’s intestate. The undisputed testimony proves that some time before the attachment was levied said George Major transferred the property in question to his wife, Dorcas. Defendant contended that this transfer was fraudulent. This issue was submitted to the jury, who rendered a verdict in plaintiff’s favor. We are asked to reverse the judgment entered upon said verdict for several reasons.

The court charged the jury that a small portion of the property in controversy was exempt property, and that, as to this, their verdict should be in plaintiff’s favor, even though the property was fraudulently transferred. Defendant contends that this portion of the charge was erroneous, and that plaintiff was not entitled to recover at all if the property was fraudulently transferred. In the view we take of the case, it is unnecessary to consider this contention. The verdict of the jury was for the full value of the property transferred, and not merely for the portion which was exempt. Such a verdict they could render only upon the ground that the property was not fraudulently transferred. We must assume that the verdict was rendered upon that ground, and therefore that the jury found that the property was not fraudulently transferred. N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212. It therefore follows that the jury had no occasion to apply that portion of the charge under discussion, and whether it was correct or not need not be determined.

It is contended that the trial court erred in refusing to permit the jury to find the plaintiff was estopped from maintaining this action. The facts upon which the claim of estoppel rests are these: The plaintiff, after his appointment as special administrator of his mother’s estate, though acting in his individual capacity, posted a notice of the sale of the property in question. He attended that sale, and bid upon and purchased some of the articles sold. Before this, however, he had formally notified defendant that the property in question belonged to his mother’s estate, and an affidavit to that effect, signed and sworn to by him, was presented at the hearing when the order for said sale was made. The principle of estoppel is inapplicable, unless it can be said that defendant would not have made the sale except for the deceptive conduct of plaintiff. The record proves the contrary. Defendant was fully indemnified by the plaintiff in the attachment, suit, and defendant’s deputy, who conducted the sale, and who had full charge of the attachment levy, testified:

“I had my. conclusions all the time in talking with Densmore Major that the property attached belonged to his father. I talked that to him, and I thought so all the time.”

Under these circumstances it is impossible to believe that the conduct of plaintiff misled defendant; and therefore the principle of estoppel is inapplicable.

Defendant says in his brief:

“If the bill of sale was without consideration, it was presumptively fraudulent, and the burden was on plaintiff to show that sufficient property was left, or other reasons why the bill should stand. The charge of the court leaves the burden of proof on defendant, even if the jury should find the bill of sale was without consideration.”

I think this complaint is based upon an erroneous construction of the charge. In fairness it must be said that the charge does ■ not inform the jury upon whom the burden of proof rests under the circumstances above set forth. Nor did defendant prefer any request covering this subject; and it would require considerable credulity to believe that such a request would have been of service to the jury. In its absence, it was not error for the court to say nothing upon the subject. Anderson Carriage Co. v. Pungs, 134 Mich. 474.

In his argument to the jury, plaintiff’s counsel stated that Mr. Flummerfelt (a witness for the defendant who testified that he was a creditor of George Major and investigated his financial condition) “did not proceed with any such proceedings as we find in this case.” It is urged that this statement was prejudicial and constitutes reversible error. We decide otherwise.

Judgment affirmed.

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


author: McAlvay, C. J.

text:
    SHAW-WALKER CO. v. FITZSIMONS.
    1. Appeal and Error — Briefs—Abandonment of Assignments.
    Assignments of error not discussed in the brief of plaintiff in error will be deemed abandoned.
    2. Stipulations — Construction — Admission of Plaintiff’s Demand.
    In an action for the price of goods sold and delivered, in which set off and recoupment have been pleaded, a stipulation “that the bill of particulars filed by plaintiff correctly sets forth the merchandise sold and delivered and the price charged therefor, and the amount unpaid is $606.25,” is an admission by defendants of the» receipt of the goods and the balance due plaintiff, subject to defendant’s claim of set-off and recoupment.

      3. Set-oee and Recoupment — Evidence—Necessity.
    Where, in an action for the price of goods sold, there is a stipulation admitting plaintiff’s claim as shown by its bill of particulars, and, though a breach of contract is shown, there is no evidence to warrant the jury in fixing damages upon any item set up in defendants’ bill-of particulars of set-off and recoupment, a verdict is properly directed for plaintiff.
    Error to Wayne; Mandell, J.
    Submitted January 18, 1907.
    (Docket No. 69.)
    Decided July 1, 1907.
    Assumpsit by the Shaw-Walker Company against James Fitzsimons and Morris Sullivan, copartners as James Fitzsimons & Company, for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      George B. Greening ( William G. Fitzpatrick and Bichará, I. Lawson, of counsel), for appellants.

      Anderson & Backham, for appellee.
   McAlvay, C. J.

Plaintiff, a Michigan corporation, entered into a contract in writing with defendants, April 14, 1904, on certain terms and conditions making defendants its exclusive agents in the city of Detroit for the sale of its multi-cabinet line of sectional filing cabinets, etc., at certain discounts, agreeing to do certain things as to advertising and furnishing catalogues; accounts to be due and payable in 30 days. In consideration of discounts and the services to be performed, defendants agreed to maintain a stock of not less than $500 worth of plaintiff’s goods, and give them prominence in their salesrooms and in advertising, to the exclusion of all similar goods. The right was mutually reserved to terminate the agreement on 30 days’ notice. For the purposes of this case it is not necessary to print this contract at length. Goods were delivered to defendants under this agreement. Soon after-wards defendants began to complain on account of non-fulfillment of the agreement by plaintiff in several particulars. On August 11, 1904, they gave notice of cancellation of the contract. In December, 1904, plaintiff sued defendants in the circuit court for Wayne county in assumpsit, declaring on the common counts for goods sold and delivered, and filing a verified bill of particulars showing a balance of $606.25. Defendants pleaded the general issue, giving notice of set-off and recoupment, claiming damages for failure to perform the terms and conditions of a written contract and supplemental amendments thereto, adding an affidavit denying plaintiff’s claim, and stating that all goods on hand were then stored and held for plaintiff as already notified, together with a bill of particulars of set-off and recoupment.

Pending the suit and before trial these parties by their attorneys entered into a stipulation in writing, as follows (omitting entitling and signatures):

“It is hereby agreed by and between the parties to the above-entitled cause, by their respective attorneys, that the bill of particulars of plaintiffs filed in said cause correctly sets forth the merchandise sold and delivered by the plaintiff to the defendants and the price charged therefor, and the amount unpaid is $606.25.
“This stipulation is made in pursuance of a talk over the telephone between Mr. Rackham and Mr. Greening to obviate the necessity of plaintiff having its witnesses, Louis O. Walker and Morse, come to this city a second time for the purpose of giving their testimony as to the facts above admitted.
‘1 This stipulation is not intended to be considered as a waiver of any claim made by the defendants as set forth in their set-off and recoupment.
“Dated February 14, 1906.” ■

When the case came on for trial the plaintiff offered in evidence this stipulation and the files in the case, and rested. Defendants asked for a directed verdict, for the reason that in his opening plaintiff’s attorney had stated that defendants were agents for plaintiff under a written contract, which had not been introduced in evidence, and no proof had been made to show its fulfillment. The court denied this motion, and defendants excepted. No error is assigned upon the denial of this motion.

Defendants then proceeded to trial, offering the contract in evidence, and putting in testimony which was claimed to show default in fulfillment of the contract on plaintiff’s part, and damages by reason thereof. Plaintiff offered proof in rebuttal. The court instructed a verdict for plaintiff for the full amount claimed. From the judgment entered thereon defendants have brought the case to this court for review upon writ of error. The errors assigned are all upon the charge and direction of the court, and refusals to charge, and upon the refusal of the court to allow defendants, under Circuit Court Rule 24c, to have the opening and closing in taking testimony. This last assignment of error is abandoned, not being discussed in defendants’ brief.

The only question to consider is whether the court erred in directing a verdict for plaintiff. The court held that the stipulation given above was an admission by defendants of the receipt of the goods and the balance due plaintiff. We think it warrants that construction. It recites, among other things, “that the bill of particulars of plaintiff filed in said cause correctly sets forth the merchandise sold and delivered by the plaintiff to the defendants and the price charged therefor, and the amount unpaid is $606.25.” During the trial defendants’ attorney, in urging the application of Circuit Court Rule 24c, said:

“We concede what they claim, but we propose to reduce their claim by a set-off and recoupment.”

The stipulation did not waive the right to claim set-óff and recoupment, and the defendants put in all the proofs they desired under their notice of such defense. The amount paid to Mr. Keberg of $28.85 per week for 17 weeks is the only item of which there is definite proof. Keberg was recommended to defendants by plaintiff’s agent who dealt with defendants at the time the contract was made. No claim is made that he was not competent, but that, by reason of default on plaintiff’s part in fulfilling the contract, defendants should recoup Keberg’s wages as part of the damages sustained by them. Plaintiff’s bill of particulars shows goods sold and delivered to defendants to the amount of $1,061.90, with total credits of $455.65, which includes goods returned and some discounts. The testimony of defendant Fitzsimons shows that about $300 worth of these goods were sold. There was evidence in the case tending to show that plaintiff had defaulted in not furnishing catalogues and doing advertising as agreed in the contract, but nothing definite as to the damages arising therefrom in any particular. If, for the purpose of selling these goods, a new department was created in defendants’ business, and Keberg was employed to manage that department, money paid him might be an element of damages, if shown that such damages arose'from the breach of the contract by plaintiff. No such showing has been made. Nor is there any testimony in the case which would warrant the jury in fixing damages upon any item set up in defendants’ bill of particulars of set-off and recoupment. It is elementary that damages for breach of contract must be proved with reasonable certainty, and are not to be inferred or fixed arbitrarily by the jury.

The conclusion of the court was correct in directing a verdict for plaintiff. The judgment is affirmed.

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