text:
    CROSBY v. HUTCHINSON.
    1. Bill to Quiet Title — Who May Maintain — Forcible Dispossession of Defendant.
    Complainant, owning an undisputed two-thirds interest in fee in certain property, and claiming the, remaining one-third interest under a sheriff’s deed, on the day after the life tenant’s death, set up a tent on the premises near the house, and left men there to guard the same. A few days later she broke into the house, the key of which was held by defendant, who had been in possession, and who claimed title to a one-third interest under a warranty deed, and immediately thereafter filed a bill in equity to quiet title. Held, that the bill could not be maintained, since complainant had taken forcible possession of the premises for the purpose of filing the bill, to avoid a suit at law.
    2. Same — Overruling Demurrer — Effect—Necessity for Proof.
    Where a bill in equity to quiet title to realty alleged that complainant was the owner and in possession of the property, and a demurrer to the same for failure to allege that defendant was out of possession had been overruled, the overruling of the demurrer did not relieve complainant of the necessity of proving that defendant was out of possession, as such order merely determined the sufficiency of the bill, and hence relief on another ground could not rest on the order.
    3. Same — Equity Jurisdiction.
    Where it appeared on a bill to quiet title that the controversy related to certain deeds the validity of which was properly determinable in an action of ejectment, the jurisdiction of equity was not saved .by an allegation that defendant obtained his deed with improper motives; his motives, if his deed was a good one, and conveyed title, being immaterial in such suit.
    4. Same — Injunction—Dismissal—Damages.
    A bill in equity, not otherwise sustainable, will not be sustained by the fact that complainant is liable to have damages assessed for wrongfully securing an injunction.
    Appeal from Calhoun; Peck, J., presiding.
    Submitted December 4, 1900.
    Decided February 27, 1901.
    Bill by Mary J. Crosby against Leonard D. Hutchinson-to quiet title. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John C. Patterson, for complainant.

      Hatch & North, for defendant.
   Hooker, J.

Robert Brady died seised of 160 acres of land. He left a widow and three children, two of whom quitclaimed to the widow, Mary Brady. The other, Lannes Brady, did not. It has been adjudicated that Mary Brady acquired no more than a life estate by the quitclaim deed from her children. The complainant acquired the title to the shares of the two children mentioned, and it is conceded that she is owner- of an undivided two-thirds interest in fee. She claims to own the fee in the share owned by Lannes Brady also. It rests on the following facts: Clark, Baker & Thompson, copartners, obtained a judgment against Lannes Brady in the Barry circuit. An execution issued to the sheriff of Calhoun county, and was levied upon the interest of Lannes Brady in these premises. The premises were sold to the plaintiffs, and a deed was made and delivered to them by the sheriff on April 22, 1899, the sale having occurred in 1891. Complainant received a quitclaim deed of the premises from the three copartners and their wives on April 11, 1895. The defendant, Hutchinson, claims title to this one-third under a warranty deed from Lannes Brady and wife dated March 7, 1895, and he alleges that the sheriff’s deed is void. It will thus be seen that, while the complainant claims absolute 'title to the entire premises, Hutchinson claims that he is tenant in common with her. The bill is filed to quiet the complainant’s title by removing the cloud of defendant’s deed and claim of title. It alleges that he took this deed with full notice of complainant’s rights, and with a design of hindering and delaying Brady’s creditors, and prays that his deed may be canceled, complainant’s deed from the sheriff confirmed, and defendant enjoined from disturbing complainant’s possession. The bill alleges that the complainant is owner and in possession of the premises. If it does not expressly state that Hutchinson is not in possession, it impliedly states it, and, as the bill has been held good upon demurrer, we must treat this as a sufficient allegation that the defendant is not in possession. Mary Brady died in possession April 19, 1899. The bill was dismissed upon the ground that the defendant was not shown to be sufficiently out of possession to justify the filing of this bill.

It is unnecessary to review the evidence at length. Hutchinson had been in possession, and, although some of his property had been removed, he still retained the key to the house upon the premises. The least that can be claimed by the complainant is that, immediately after Mai’y Brady’s death, she sought to take possession, and to exclude Hutchinson, who was then in possession. Mary Brady died April 19th. Complainant set up a tent close to the house on April 20th, and left men to guard the premises. Two or three days later they broke into the house, and on April 25th this bill was sworn to. If the complainant can be said to have been in full possession at that time, it was only through an unlawful and forcible dispossession of the defendant.

Counsel cites cases to show what constitutes an ouster of a co-tenant, arguing that, if there has been an ouster, the person ousted cannot he in possession. It does not follow that conduct which shall justify a court in finding a defendant guilty of ouster, in an ejectment suit brought by a co-tenant, will require the court to hold that such defendant has a possession sufficiently exclusive to maintain a bill to quiet his title. We have held that one who takes and maintains forcible possession for the purpose of filing a bill to quiet title, and to avoid a suit at law, cannot maintain such bill. Rubert v. Brayton, 82 Mich. 632 , (46 N. W. 935). We think this design evident in this case.

Counsel for complainant maintains that this bill might be sustained although defendant was not out of possession. It seems to be thought that the overruling of the demurrer has settled this. The order settled the question of the sufficiency of this bill. If counsel has any ground to stand upon in this, it must be upon a claim that the bill does not allege that defendant was out of possession, and that, therefore, the bill could only be held good upon some other theory. In other words, by an error of judgment in sustaining a bill upon demurrer, the circuit judge has unsettled the rule of law applicable to such cases, viz., that a bill to quiet title could not stand against a defendant in possession. We cannot accede to this proposition. There is enough in the bill to imply exclusive possession by the complainant; and if we were to differ with the learned circuit judge about this, which we do not, his decision would simply have the effect of making a defective bill a good pleading for this case. The proofs to sustain it would need to be the same as would be required in any case, and relief upon another ground would have to rest upon something more substantial than such order.

It is contended, however, that there are sufficient grounds, outside of the statutory quieting of title, upon which this bill can stand, under “several familiar heads of equitable cognizance,” viz.:

“It [the bill] states an equitable case to cancel defendant’s deed, and to remove a cloud from complainant’s title. •
“It asks an injunction to restrain defendant from taking possession, and the decree refers the case to a commissioner to take proofs as to damages against complainant thereunder.
“The defendant took his deed from Brady in bad faith, and is irresponsible, and the bill was filed to prevent irreparable loss.
“ It makes out a case to prevent a multiplicity of suits,” etc., and “to restrain waste, which it might do independently of statute.”

The ultimate determination of this controversy must depend upon the validity of complainant’s title. If valid, the deed from Lannes Brady to defendant is worthless, and conveys nothing. These questions can be determined at law, or, if they cannot, the same is not made apparent. An ejectment may not be avoided by canceling an adverse deed, where the deed is void or inefficacious, and may be defeated in the ejectment suit.

Defendant’s motives, in taking the deed are immaterial, if it was a good deed, and conveyed title, so far as any relief sought by this bill is concerned; and we discover no allegations which warrant us in sustaining the bill as a proceeding to restrain waste or to avoid a multiplicity of suits.

Neither are we prepared to hold that the fact that a complainant is liable to have damages assessed for wrongfully taking an injunction would ordinarily confer jurisdiction in a case where it would not otherwise be sustained. The case is within the principle of Blackwood v. Van Vleet, 11 Mich. 252; King v. Carpenter, 37 Mich. 363.

The decree is affirmed, with costs.

Montgomeey, C. J., Mooee and Long, JJ., concurred. Q-eant, -J., did not sit.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    ULLMAN v. THOMAS.
    Fraudulent Conveyances — Husband and Wipe — Revived Debt —Evidence.
    A wife, being possessed at marriage of $500 saved from her earnings, gave the same to her husband to assist him in the purchase of a place of business, he promising, as she claimed, to repay her, though no note or other evidence of indebtedness was executed. Twenty-two years later, the husband, at the time insolvent, caused conveyances to be made which should invest in his wife and himself, as tenants by the entirety, the title to their homestead, which had been purchased by him in his own- name with the proceeds of the earlier purchase. The wife was ignorant of his insolvency, and supposed the conveyance to be pursuant to his repeated promises to secure her for the loan. Held, that creditors could not attack the transaction as fraudulent, so far as the wife was concerned.
    Appeal from Jackson; Peck, J.
    Submitted December 4, 1900.
    Decided February 27, 1901.
    Bill by Morris Ullman and others against John C. Thomas, Augusta Thomas, and John Murray in aid of execution. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Wilson & Cobb, for complainants.

      Blair, Smith & Townsend, for defendants.
   Long, J.

We have read the record and briefs in this case, and arrive at the same conclusion reached by the court below. That court filed a written' opinion in the case, which is returned with the record, and we adopt it. It is as follows:

“The bill of complaint in this case was filed in aid of an execution issued upon a judgment rendered in the circuit court for tbe county of Jackson, May 1, 1897, in favor of tbe complainants and against tbe defendant John C. Thomas, for $593.72 damages, and costs taxed at $25.64. The execution was issued May 1, 1897, and on the 10th of the same month was levied upon the lands in question. The debt upon which the judgment was based existed prior to the date of the conveyances assailed by the bill as fraudulent. For some years prior and up to June 10, 1896, the defendant John C. Thomas owned lot 1 in block 4 of Livermore, Wood & Eaton’s addition to the city of Jackson, and on that day he and his wife, the defendant Augusta Thomas, quitclaimed the property to one John Murray for a stated consideration of one dollar. On the same day, and at the same time, said John Murray quit-claimed the premises for the stated consideration of one dollar to the defendants John C. Thomas and Augusta Thomas, ‘husband and wife, as joint tenants.’ Both these conveyances were recorded September 7, 1896. No consideration actually passed from or to Murray for these conveyances. He was a mere intermediary, used for the purpose of changing the title of the premises from the defendant John C. Thomas to himself and wife, Augusta Thomas, as husband and wife. It is claimed, however, that a good and sufficient consideration passed from Augusta Thomas to her husband, John C. Thomas. These are the conveyances attacked by the bill as fraudulent.
“The relation of these parties, and the history of the circumstances out of which the claimed consideration grew, as shown by the proofs, are substantially as follows: The defendants John C. Thomas and Augusta Thomas were married 26 or 27 years ago in the State of New York. Before her marriage, Augusta M. Thomas was a dressmaker. The parties resided at Byron Center, a small village in Western New York. At the time of her marriage, she had. saved from her earnings as a dressmaker about $500. $400 or $425 of this amount was then in the hands of a married sister, Mrs. Emily Thomas, with whom she had made her home for five or six years before her marriage; and $100 of which she had about a year before that time loaned to another sister, then residing in Cleveland. About a year after their marriage, the parties removed from Byron Center to the village of Horton, in this county. When they left New York for Michigan, the sister Emily Thomas gave the ■defendant Augusta Thomas the money then in her hands, belonging to her, about $425. On her way West she stopped at Cleveland, and collected the $100 then in the hands of her other sister, and brought the money — about $500 — with her to Horton. She never deposited the money in a bank, either in New York or Michigan. There was no bank at Byron Center, or at any other point nearer that place than about 14 miles. She brought the money with her in the form of currency. She kept it by her in bier dress and on her person. Upon arriving at Horton with her husband, the defendant John C. Thomas bought a piece of property having a building thereon for something like $2,000, taking the title in his name, and took possession of it, using a portion of it for business purposes, — keeping a saloon, — and another part as a residence for himself and wife. When he bought this property, his wife let him have her money, $500, to assist in paying for it, and he used it for that purpose. She testifies that she loaned him the money to help him along, and that he said he would pay it back to her. She took no note from him, or other written evidence of indebtedness. He never made any payments on it from the time she let him have it until the conveyance in question was made, a period of something like 22 years. Neither was there ever any specific agreement made between them that he should pay interest on the money. She often asked him to repay her, and he always promised he would, but continually put it off, saying he would pay her when he accumulated enough, or when he could.
“After residing in Horton for three or four years, the parties removed to the city of Jackson, and the defendant sold the Horton property. About a year and a half after coming to Jackson, John C. Thomas bought the premises in question for about $2,200, taking title in his own name. The premises consisted of a city lot with a residence on it, and some other improvements. After purchasing this property, the parties went there to reside, and it has ever since constituted their home. Since its purchase quite extensive repairs have been made; a barn has been built, a furnace was put in, and it has been fitted up with modern improvements, and well kept up. The value of this property on June 10, 1896, was about $3,000.
“After coming to Jackson to reside, John C. Thomas often spoke to his wife about repaying the loan from her; said he would pay it sometime; that he would pay or secure ber. She importuned him from time to time to repay it or secure her. On one occasion when she spoke to him about it, he said he had fixed things so she would be all right, and she understood from that he had made a will, and that was satisfactory to her at the time. In the year 1891 she asked him, in substance, if he had, and, if not, if he would secure her. After that she never knew positively whether he had or not. She trusted him to attend to it. The matter ran along without any other distinct understanding until June l'O, 1896, the day the deeds in question were executed. On that day he wanted her to come down to a lawyer’s office, and told her he was going to make a joint deed of the home, and that would secure her. She did come down, and the conveyances in question were executed. There was no computation of the amount due her at that time, or anything said between them as to the amount of her debt. She was told that it was necessary, in order to make a joint deed, that the property be conveyed to a third person. Without any other understanding, the deeds in question were executed, she understanding that thereby her loan to her husband was being paid or secured to her. After these deeds were made, John C. Thomas kept them for a time, and finally told her to put them on record. She delayed until he spoke of it again, when she let him take them for the purpose of getting them recorded, and supposed he did so. In her answer filed in this case she alleges that there was justly and truly due her at that time about $1, BOO; but at the time the deeds were made there was no figuring up of the amount of her debt, or any talk as to what it aggregated.
“When these conveyances were made, the defendant John C. Thomas was insolvent, owing other indebtedness i than that to his wife, in various amounts, and to various ' creditors, some of which have been since compromised at 50 cents on the dollar, and some of which, so far as the proof shows, have not been paid at all. At the time the conveyances were made, Mrs. Thomas did not know that the defendant owed any other debts than the one to her. He had not been accustomed to talk over with her his private business affairs, and she knew nothing about his financial situation. The deeds in question were made in payment of what he owed her, and without intent on her part to hinder, delay, or defraud his other creditors. So far as the defendant John C. Thomas is concerned, he knew at the time the deeds were made that he was insolvent, and that by making the deeds in question he was putting the property in question beyond the reach of his creditors; and I am convinced that it was his intention, in making the deeds, to satisfy his wife’s claim, and put the property beyond the reach of his other creditors.
“It is impossible to estimate with accuracy the value of the interest which Mrs. Thomas acquired by these conveyances. Its legal character can be clearly stated, but the value of the additional interest secured to her cannot be estimated with any degree of certainty. The property was their homestead before the deeds in question were made, but was worth double the homestead right in value. She also had an inchoate right of dower. After these deeds were made, they held it as husband and wife, by entireties. Whether the additional right so acquired by these deeds exceeded the amount of her debt at that time, with interest, cannot be calculated, and so it cannot be determined whether the consideration paid for her newly-acquired right.in the property was adequate or inadequate. The defendant John C. Thomas, although present at the hearing, was not sworn as a witness. He was not called to the stand by the complainants or his wife, Augusta Thomas; nor did he voluntarily testify in the case, although he had filed a separate answer. It is plain from the proofs taken that many, if not all, the facts and circumstances upon which his wife, Augusta Thomas, relies, were within his personal knowledge.
“ The complainants having introduced in evidence the judgment against John C. Thomas, the principal defendant, the -execution, with the levy thereon indorsed, and the proof of the conveyances complained of, the burden of proof, under Act No. 99, Pub. Acts 1897, is upon the defendants to show that the transaction involving the giving of the deeds complained of was in all respects bona fide.
“The indebtedness which it is claimed constituted the consideration for the conveyances attacked arose about 22 years before the deeds were made. No written evidence of the debt was ever given, and no payments of principal or interest have been made thereon in the meantime. It is in the nature of a ‘revived’ claim, and, under our decisions, to constitute it a sufficient consideration, the claim must be founded upon an acknowledged and recognized indebtedness. The transaction was between husband and wife; and it had the effect to place John C. Thomas’ interest in the premises beyond the reach of his other creditors. John C. Thomas, whose testimony would have been material in his wife’s interest if her theory is true, was not called upon to testify, although present in the court-room during most of the trial. Under these circumstances, the transaction should be closely and carefully scrutinized, and the court should not find for the defendant Augusta Thomas, unless it clearly appears from the proofs that the transaction, so far as she is concerned, is an honest one.
“The fact that Mrs. Thomas had the $500 at the time of her marriage is proved, not only by her own oath, but the testimony of her sister Emily. That she loaned it to her husband, and that from that time forward to the date of the conveyances in question it was an acknowledged and recognized indebtedness, which he repeatedly promised to pay or secure, is proved only by the testimony of Mrs. Thomas. The only other evidence there could be of those facts is that of her husband, as it appears from her statement that the subject was never talked over in the presence of any other person, and he was not called to testify; but, considering her statement in all its particulars, I am satisfied that it is substantially true. True it is that the business was not conducted with the same care and business prudence that would be expected between business men or strangers; but it is not more unusual than is frequently found where the relation between the parties is that of husband and wife, and where the wife trusts the husband, so far as her business affairs are concerned; and, so far as she is concerned, it must be held that the transaction was- an honest one, by which she intended to secure the payment and satisfaction of her debt, and did not intend to hinder, delay, or defraud the creditors of her husband; and as to her the complainants are not entitled to the relief prayed for in their bill, and, so far as she and they are concerned, the conveyances are valid. The bill will therefore be dismissed, with costs, and a decree to that effect may be prepared and presented for signature.
“Erastus Peck, Circuit Judge.”

The decree below must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    ALSPAUGH V. IONIA CIRCUIT JUDGE.
    Ejectment — Nonsuit—Vacation of Judgment — Discretion of Court.
    A judgment of nonsuit in ejectment having been entered by consent against plaintiff, without costs, except the clerk’s fees, but without the knowledge of two of the defendants, they afterwards appeared, and, on an affidavit alleging their ignorance thereof and want of consent, moved that the judgment he modified so as to give costs to them, and that an order be made for the retaxation thereof. The court denied the motion, and on its own motion vacated the judgment. Held, that it acted within its proper discretion.

      Mandamus by James H. Alspaugh and wife to compel Frank D. M. Davis, circuit judge of Ionia county, to vacate an order setting aside a judgment of nonsuit, and to retax the costs in the suit.
    Submitted January 8, 1901.
    Writ denied February 27, 1901.

      Lemuel & William K. Clute, for relators.

      John J. McKenna, for respondent.
   Hooker, J.

On July 14, 1897, Alspaugh and wife were in possession of premises purchased by them from Badger, who held their mortgage upon the premises. An action of ejectment was commenced against them to recover these premises by the city of Ionia. Alspaugh and wife appeared and filed a plea of the general issue, accompanied by a notice of a claim for improvements. Badger asked and obtained leave to appear and defend, claiming to be an interested party, and filed a plea of the general issue. Subsequently Badger’s death was suggested, and his administrator appeared. On April 4, 1900, plaintiff’s attorney and Badger’s attorney appeared in open court and consented to the entry of a judgment of nonsuit. Alspaugh and wife were ignorant of the intention to do this, and were not present. The judgment entry states that “the parties to said cause, by their respective attorneys, came into court and consented and agreed that the defendants are not guilty,” etc., and “that judgment should be rendered in accordance therewith against said plaintiff, without costs, except the taxable fees of the clerk of this court,” and it was so adjudged.

Counsel for the Alspaughs served a notice of taxation of costs upon counsel for the plaintiff in May, 1900, but the clerk refused to tax the same under the judgment. A motion was then made, and brought to hearing on June 2, 1900, asking that the judgment entry be amended so as to show that the plaintiff and the administrator of Badger alone appeared and consented to the judgment of nonsuit, and that the words “without costs,” etc., should be so modified as to give costs to said Alspaughs, and that an order be made for the relaxation of their costs at the sum of $55.50. This motion was based on an affidavit alleging that said judgment was entered without the knowledge or consent of the Alspaughs or their counsel. Counsel for the respective parties were heard, and the court denied said motion, and then and there, upon its own motion, and without a request from counsel for any party, set aside and vacated the judgment of nonsuit. This order was dated on the 2d day of August, 1900. An application was then made to this court upon behalf of the Alspaughs for a mandamus to compel the respondent to set aside and vacate his order last mentioned, and to grant the order prayed for in said motion.

We are of the opinion that the action of the circuit court was within a proper discretion. Fort Wayne, etc., R. Co. v. Wayne Circuit Judge, 110 Mich. 173 (68 N. W. 115). The order is affirmed, with costs.

The other Justices concurred.


author: Per Curiam.

text:
    WEBER v. MARQUETTE CIRCUIT JUDGE.
    Appeal — Record—Settlement op Case — Extension op Time.
    A complainant is not entitled to have an order extending the time for settling a case for review beyond four months from date of decree vacated on mandamus, where his own inability to furnish defendant with copies of his exhibits is the occasion of the delay in settlement.

      Mandamus by William C. Weber to compel John W. Stone, circuit judge of Marquette county, to set aside an order extending the time for the settlement of a case for review.
    Submitted January 8, 1901.
    Writ denied February 27, 1901.

      Ball & Ball, for relator.

      Button & Culver, for respondent.
   Per Curiam.

This is an application for a mandamus to compel the circuit judge to set aside an order for the settlement of a chancery case for review at a date later than four months from the entry of the decree.

It appears that an order extending the time for settlement of the case to the limit of four months had been regularly entered. On the 6 th day of D.ecember the parties were before the court, and complainant’s solicitor, while objecting to the time as too short, stated that he would do what he could to examine the case and prepare amendments before 5 o’clock of December 7th. On the 7th he appeared and stated that he had not had sufficient time, and objected to a settlement of the case or any postponement. The circuit judge, however, stated that he would either sign the case then and there, or allow complainant’s solicitor more time, at the' latter’s option. He returns that the relator’s solicitor replied that while they did not want to be placed in the position of asking for time, but, rather, protested against the allowance of more time, still they would say that, if the court extended the time, they would probably prepare and submit amendments. The court thereupon entered an order extending the time beyond the four months.

It appears to us, as it did to the circuit judge, that, near the close of the time fixed by the final extension for the settlement of the case, the defendant’s solicitors were delayed in submitting the case by reason of complainant’s solicitors being unable to furnish the complainant’s exhibits to be incorporated in the proposed case. The case is within the principle of the case of City of Kalamazoo v. Kalamazoo Heat, Light & Power Co., 122 Mich. 489 (81 N. W. 426). In that case the appealing party was delayed by the default of an officer of the court. In the present case it appears that the appellant would have been able to settle the case if the exhibits had been furnished on request. The delay, which was not anticipated, while not due to captiousness on the part of the solicitors, was owing to the exhibits being in a distant city, and to the fact that, when they were received by complainant’s solicitors, the defendant’s solicitors were compelled to wait until copies were furnished by complainant’s solicitors.

Under the circumstances, we think the case should be settled for review, and the application will be denied.


author: Montgomery, C. J.

text:
    STAHL v. DAYTON.
    Ejectment — Second New Trial — Grounds—Nature of Application.
    Under 3 Comp. Laws 1897, § 10981, authorizing the court to~ grant a new trial after the rendition of a second judgment in ejectment, "“if satisfied that justice will be thereby promoted,” it is not error to refuse to grant a new trial on a, showing that one defendant, claimed to be a material witness, and an attorney on whom defendants relied, were absent at the time of the trial, and on a general affidavit of merits, when the nature of the defense to be interposed is not shown.
    Error to Ingham; Wiest, J.
    Submitted January 29, 1901.
    Decided February 27, 1901.
    Ejectment by Jacob Stahl against George M. Dayton and wife. There was a judgment for plaintiff, and from an order denying a motion for a new trial, defendants bring error.
    Affirmed.

      Harry E. Hooker (R. A. Montgomery, of counsel), for appellants.

      E. C. Chapin and it. C. Ostrander, for appellee.
   Montgomery, C. J.

The plaintiff brought an action of ejectment. On the first trial, which occurred on December 11, 1899, the plaintiff recovered. The defendants paid the costs, and took a second trial, which they were entitled to as a matter of right, under section 10981, 3 Comp. Laws 1897. A second trial was had with the same result, and the defendants thereupon made a motion for a new trial based upon the showing that defendant George M. Dayton was unable to be present at the time of the trial; that he was a material witness as well as one of the parties; and also upon the showing that defendants had acted upon the advice of Attorney Loranger, who was at the time of the trial unable to attend because of an engagement in another trial at Bay City. This showing was accompanied by a general affidavit of merits, which did not disclose the nature of the defense. The circuit judge denied the application, assigning as one reason that there was no showing as to the nature of the defense, or in what manner the defense expected to meet the case made by the plaintiff.

The statute, so far as it is material to this question, reads as follows:

“The court, upon subsequent application made within two years after the rendering of the second judgment in said cause, if satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established, may vacate the judgment and grant another new trial.” 3 Comp. Laws 1897, § 10981.

It is manifest that, under this statute, showing ought to be made such as to convince the judgment of the court that justice will be promoted by a new trial. The circuit judge in this case had the evidence of the plaintiff’s case before him. He had no facts which showed that the defendants were able to meet that case, and the sole question is whether it was an abuse of discretion to refuse to grant a new trial upon the showing made.

Under a statute in the precise terms as the section quoted, the supreme court of Illinois held, in an early case, that such an application is addressed to the sound discretion of the court, and its decision thereon cannot be assigned for error. Riggs v. Savage, 4 Gilman, 130. It is not necessary to go to the length of following this case, nor do we lay down the rule that an abuse of discretion may not be corrected on error; but we are not satisfied that there was in this case any abuse of discretion. It did not appear to the circuit judge that justice would be promoted by a new trial of the case. In the absence of anything in the record to indicate what the nature of the defense which the defendants proposed to interpose may be, how are we able to say that it appears affirmatively that justice would be promoted? We have but the ordinary affidavit of merits, which, under the rules, is sufficient in some cases to justify a continuance of a cause; but in this case the defendant is proceeding under a statute which imposes upon him the burden of showing to the satisfaction of the trial judge that justice will be promoted by vacating a judgment already entered and granting a new trial.

We think that, at the least, the defendant should be required to disclose the nature of the defense, in order that the circuit judge may exercise his judgment in determining whether justice will be promoted by a new trial. To hold otherwise would be to substitute the judgment of the attorney, who advises that there is a defense to the action, for that of the trial judge; for if the fact be that there is a defense to the action, and this is to be found upon a mere affidavit of merits consisting of the statement that defendant is advised by his attorney that he has a good defense, a new trial could be demanded as a matter of right in any case in which such a general affidavit is filed; for, without reference to the manner in which judgment was obtained, it cannot be gainsaid that, if there is a good defense to the action in which judgment has been obtained for the plaintiff, justice would be promoted by granting a new trial. It would seem clear, therefore, that this pivotal question is one upon which the judgment of the court is to be invoked only upon some showing of the facts which will enable the court to decide the question intelligently.

Judgment affirmed.

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


text:
    TRUDELL v. GRAND TRUNK RAILWAY CO.
    1. Railroads — Personal Injuries — Infants—Contributory Negligence.
    A boy 7 years and 4 months old, of sufficient intelligence to appreciate the danger of being in the way of a moving train, is, as a matter of law, guilty of contributory negligence in remaining upon a railroad track in front of an approaching train, watching a train coming on another track from the opposite direction, until he is struck and fatally injured.
    2. Same — Trespasser.
    A boy 7 years and 4 months old, playing on a railroad right of way, is a trespasser, as a matter ,of law.

      3. Same — Liability to Trespasser — Gross Negligence.
    A railroad company is liable for injuries sustained by trespassers on its right of way only when its agents have been guilty of gross negligence.
    4. Same — Injury to Infant — Evidence.
    A railroad company is not chargeable with gross negligence in running down a boy 7 years and 4 months old, and of good size for his age, upon its right of way, from the fact that the boy stood on the track, in full view of those in charge of the approaching engine, for some two minutes before being struck, since the company’s agents, if they saw the boy, were justified in believing that he would step off the track in time, to avoid injury.
    Error to Wayne; Hosmer, J.
    Submitted January 29,. 1901.
    Decided February 27, 1901.
    Case by Elizabeth Trudell, administratrix of the estate of William Trudell, deceased, against the Grand Trunk Railway Company of Canada, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Geer & Williams (E. W. Meddaugh, of counsel), for appellant.

      William Stacey (Frank C. Cook, of counsel), for appellee.
   Long, J.

This action is brought by the plaintiff, as administratrix of the estate of William Trudell, deceased, to recover damages for injuries resulting in the death of the latter, a boy 7 years and 4 months old at the time of the injury. He was killed about 3 o’clock , on Sunday afternoon, upon defendant’s track, about half way between Mack avenue and Hale street, in the city of Detroit. At the place where the injury occurred there were two main tracks and a side track, and at the time there was a Lake Shore train coming towards him from the south, on the east main track. He was standing, as plaintiff claims, in the center of the west main track, on which the Grand Trunk train which struck him was approaching from the north. The testimony is somewhat contradictory as to whether the boy was standing on this track when he was struck or was attempting to cross it. Herman Eckert, a boy about 14 years of age, testified that deceased had then been on that track about two minutes. He says he called the boy’s attention to the fact that the Grand Trunk train was coming, and that t young Trudell said, “That train is on the other track; it can’t strike me; ” that it was the Lake Shore train he said could not strike him; that the witness then said to him, “Look out, Willie, here it comes;” and then the boy turned around, and started to run, when he was struck. Anthony Karsnick was the only other witness who saw the accident, examined by the plaintiff. He testified that Eckert called to the boy, and told him the train would strike him, and he said the train was on the other track; that Eckert called to him again to get off the track, and then he looked around, and started to run off. Both these boys testified substantially that the deceased knew enough to understand that if he did not get out of the way of the train he would be injured. Young Eckert testified that he was a good-sized boy for his age; that he went to school, and understood perfectly well that if a team or a car came along, and he stood in front of it, if he did not get out of the way he would be hurt. The testimony showed that these boys were upon some cars that were standing on the siding, throwing stones and playing tag, and that, just before the train came along, deceased went upon the track of the defendant company, and stood there watching the Lake Shore train, or else he attempted to cross the defendant’s track just before the train came along. There was some conflict in the evidence on this point. The engineer on the train testified:

“As near as I can recollect, after I passed Mack avenue this little boy ran right out from behind some cars in front of my engine. He could not have been more than 15 feet from my engine when I first discovered him. I was keeping a close lookout, and at no time before or after I reached Mack avenue did I see him on the track.”

The fireman testified to substantially the same thing.

The plaintiff introduced some evidence tending to show that the defendant’s train at the time was running at a rate of from 30 to 35 miles an hour. It appeared that the track was straight, and that an object as large as this boy could have been seen a long distance from the cab of the engine.

The court below submitted to the jury, not only the question of the negligence of the deceased, but also the question of the defendant’s negligence. The jury returned a verdict for the plaintiff for 1500.60. Defendant brings error.

The court charged the jury on the question of the defendant’s negligence as follows:

“It is incumbent, obviously, upon the plaintiff in this case, * * * to satisfy you, gentlemen of the jury, that the defendant has been negligent, and that the negligence of the defendant is' the proximate cause of the injury, because no damages may be honestly rendered unless the injury of which the plaintiff in a case like this complains comes directly from the negligence of the defendant. Now, you have heard the testimony in this case, and if you shall find in this case that, at a point sufficient for the engineer to have come to a stop, — to have controlled his engine, — it became, or should have become, apparent to him that the child was not going to leave the track, then, and under those circumstances, I say, gentlemen of the jury, it became his duty to stop his engine. But, unless you find that to be the fact, then a verdict must be rendered for the defendant. It is for you to say, from all the evidence in the case. You have heard the testimony. You have heard the testimony of the boy who stood, I think, upon the flat car, or in the immediate vicinity, who was one of the companions, who stated that the boy stood in the center of the track; that he called his attention to the fact that the Grand Trunk train was coming in, and he said, ‘Oh, no; it is the Lake Shore train.’ It is for you to say whether you believe that, from the evidence which has been submitted on that point, it was possible for the engineer of that train to have seen the boy at a sufficient distance to have stopped the train, and that a man exercising reasonable caution in his position would, under those circumstances, have stopped the train. If that is so, then I think that if he [could have seen him at a sufficient distance to have stopped or controlled the train, and if he failed to observe that degree of care which other men under like circumstances would have observed, then, and under those circumstances, the company is guilty of negligence, but not otherwise.
“Now, you have heard the testimony, on the other hand, of the engineer. The engineer says that when he was coming along, at the rate which you may find that he was coming, the boy suddenly, at a short distance in front of the train, went upon the track. If that is so, that is obviously an end of the case, because, under those circumstances, no negligence could be predicated of those who were in the conduct of the engine. But I think, gentlemen of the jury, it becomes a question for you to determine, under the circumstances of the case, whether the defendant is or is not guilty of negligence.
“There is one further thing that I must say to you upon the subject, because, as I have already said to you, not only, in a case like this, must you find that the defendant has been guilty of negligence, but the plaintiff must not be guilty of contributory negligence. As I said before, if this were the case of an adult, it would present a different case. Under those circumstances, not only would there be no duty, in the sense in which I have used it, on the part of the company to stop, but, beyond that, there would be contributory negligence upon the part of the adult. Was the little boy, under those circumstances, guilty of contributory negligence? Now, obviously, as has been said, we cannot attribute that degree of knowledge and that degree of care to an infant that we can to an adult; and it is for you to say, under the circumstances, how much negligence should be imputed to the boy. If you believe that he was of sufficient maturity,— had sufficient appreciation of the danger that he was in in going upon a railroad track, — and if you believe, under the circumstances of the case, that he had sufficient maturity to keep that appreciation in mind, then, and under those circumstances, you may properly find him guilty of contributory negligence, but not otherwise. If he failed in that, obviously contributory negligence could not be attributed to him. It is you, gentlemen of the jury, I think, that must deal with this question, rather than the court. Now, I think I have said all that it is necessary for me to say upon that subject.”

We think the court was in error in submitting either the proposition of defendant’s negligence or the negligence of the boy to the jury. The verdict, under the circumstances, should have been directed in favor of the defendant. The testimony conclusively shows that this boy, while only a little over 7 years of age, knew and appreciated the danger there was in being on this track. He knew that, if he remained on the track on which the train was passing, he would be injured. There is no dispute in the case but that his companion Eckert called to him that the train was coming, and that he heard the call, and appreciated the danger; but he called back that the train was on the other track, and, as soon as he apprehended that the train was on the track where he stood, he attempted to get off. There is no reason in this case for saying that he did not apprehend the danger, nor that he was of immature years, and must therefore be excused from exercising any care. Age is not the true test in such cases. It is the intelligence of the boy, not his age, that must control. In Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525), it appeared that the boy who was injured was about 8 years old. It was said:

“The plaintiff himself testified that this boy had intelligence enough to appreciate the danger. He placed the boy on the stand, and he so testified. The evidence clearly shows that there was nothing except this wagon and the east-bound car to obstruct the vision. Witnesses for the plaintiff state that, if the boy had looked in the direction of the car, he could have seen it. It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from collision with an ordinary wagon just as surely as from running into this car, and from the testimony of the lad himself he had intelligence enough at the time to know this. Why, then, should it be left for the jury to say that he had not?”

That same inquiry might as well he made in the present case as in that. There is no conflict in the testimony whatever but that the deceased knew of the danger in being on this railroad track. He apparently fully appreciated it; for when his attention was called to the fact, and he saw for himself the situation, he hurriedly attempted to get off the track.

But, aside from this, the court should have directed the verdict for defendant because it was not shown to have been guilty of any negligence. The boys were playing upon the defendant’s right of way half way between two streets which crossed the defendant’s tracks. They were in a place where the engineer had no reason to expect to see them. They were not upon a public highway crossing, but were trespassers upon the defendant’s premises; and we think there is no conflict of authority that in such case the defendant can be held liable only when its agents bave been guilty of gross negligence. There is no evidence in the case which would warrant the submission of that question to the jury. If the testimony of the plaintiff’s witnesses be taken as true, that the boy was on the track two minutes before he was struck by the engine, it would not warrant the conclusion that the engineer was guilty of gross negligence. This boy was of good size for his age, and the engineer would be justified in believing that he would step off the track in time to avoid being struck, and the engineer would not be required to check the speed of his engine until he saw that the boy did not appreciate the danger.

The learned court below seemed to think that, because the boy was of tender years, the question of the defendant’s negligence was for the jury, and the claim of plaintiff’s counsel and the ruling of the court was that the boy was too young to be a trespasser. It was therefore left to the jury to say whether or not he was a trespasser. It has been repeatedly held that much younger children than this boy were trespassers under such circumstances. Elliott on Railroads, at section 1259, lays down the rule that:

“Although the age of the child may be important in determining the question of contributory negligence, or the duty of the company after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers, or bare licensees, not invited or enticed by it, than it is to keep them safe for adults.”

Again it is said, at section 1260, by the same author:

“ So it has been held in many cases that a railroad company is not obliged to keep a lookout for trespassing children upon its track under ordinary circumstances, or move its cars with reference to them, until their presence in danger is discovered.”

In Masser v. Railway Co., 68 Iowa, 602 (27 N. W. 776), it appeared that the boy was 11 years old. It was claimed that he should have been sooner discovered. The court said:

“It seems not improbable that he might have been discovered a little sooner; but no locomotive engineer is bound to watch out for trespassers upon the track. The company does not owe trespassers that kind of care. This has been settled by repeated adjudications.”

Counsel for plaintiff cite Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581), and several other cases in this State, to sustain the proposition that a railroad company is bound to use reasonable care to avoid injuring a trespasser after seeing his danger, or after his danger could have been seen by an ordinarily prudent person. It is . undoubtedly the rule that the defendant’s servants would have had no right to recklessly run their engine over this boy if they had seen the danger he was in. If, however, the engineer or fireman had seen the boy on the track, they had the right to believe, from his size, that he would step off. It is not like the cases cited by counsel for plaintiff. In those cases (Baker v. Railroad Co., 68 Mich. 90 [35 N. W. 836]; Starbard v. Railway Co., 122 Mich. 23 [80 N. W. 878]) the injury occurred upon street crossings, where the defendants were required to give some warning of the approach of their trains. In the present case the engineer had no reason to expect any one to be on the track, and, if any one was seen of the size of this boy, he would be justified in believing he would step off in time to avoid injury.

The judgment must be reversed,, and no new trial will be granted.

The other Justices concurred.


author: Grant, J.

text:
    GREENWOOD v. SCHOOL DISTRICT NO. 4 OF NAPOLEON TOWNSHIP.
    Agreement to Convey Land — Part Performance — Revocable License.

       In 1837 one Fitch agreed with his neighbors to give an acre of land for a school-house site as long as it was occupied for a school-house, pointed it out, and promised to deed it to those who were capable of holding it, whenever they wanted it. A school-house was erected the next spring. A few years after a school district was organized, took charge of the site and of the school-house, repaired it, by an agreement with the adjoining owners, in 1875, erected fences, and in this manner has occupied the land continuously. Held, that Fitch did not convey a mere naked license, revocable at his will or at the will of his grantees, and that the school district . was entitled to the possession so long as the land was used for school purposes.
    Appeal from Jackson; Peck, J.
    Submitted January 29, 1901.
    Decided February 27, 1901.
    Bill by Mary J. Greenwood and others against school district No. 4 of Napoleon township and others to restrain the erection of a school-house. The defendants filed an answer in the nature of a cross-bill to quiet title- and to enforce a land contract. From a decree dismissing both bill and cross-bill, complainants áppeal.
    Affirmed.
    Complainants are the owners of a parcel of land containing about 62 acres. Upon a piece of this land is erected the school-house belonging to defendant school district. A special meeting of the legal voters of the district was called to meet October 3, 1899, to consider the question of a school-house site; the designation of one, if one had not theretofore been lawfully designated; to vote a tax for the purchase or lease of a site; and to authorize the issue of bonds to pay for said site and the erection of a school building. At such meeting a committee was appointed to confer with complainants for the purchase of a half acre of land, including the old site, which was and had been for many years inclosed. Complainants refused to make any arrangements, and the district voted to proceed with the erection of a new school-house upon the old site. Thereupon the complainants filed this bill to restrain the erection of said building, upon the ground that they were the owners of the land, and that their grantor had given only a mere naked license to erect the school-house then standing, and that such license was revocable at any time. The defendants answered, setting up an agreement with one Fitch, the original patentee of these lands, to donate this site for a school-house, its acceptance, and its occupation for that purpose from 1838 to the present time. The answer was in the nature of a cross-bill, asking that the title of the district be quieted, and that the contract with Fitch be specifically enforced. It also claimed title by adverse possession. The case was heard upon pleadings and proofs in open court. The bill was dismissed, and the affirmative relief prayed for by the defendants was denied, and the cross-bill dismissed.
    The facts found by the circuit court are that in the fall of 1837 the settlers in that locality met and discussed the question of providing for a school for educating their children. They went to Mr. Fitch to discuss the question of a place for a school-house. Mr. Fitch went with them to the place where the school-house now stands, and said to them:
    “Right here I will give you an acre of land just as long as you will occupy it for a school. If you will build a school-house here, you will have it just as long as you'will keep school in it. It shall be yours. I will give you a deed of this land if you will put a school-house on it.”
    The witness who testified to the above also testified that Mr. Fitch “said he would deed it to those who were capable of holding the deed, whenever they wanted it.” A school-house was erected upon the site the next spring. A few years after, a school district was organized, took charge of the site and of the school-house, and has retained possession thereof ever since. The school-house has been repaired several times since, and has been occupied as a school-house for a period of about 60 years. In 1875, by an arrangement with the then owner of the land, the school-house site was marked off, and a fence built to mark the line between it and the adjoining property. This fence was rebuilt about 14 years ago. Mr. Greenwood, from whom complainants acquired their title as heirs, bought the property in 1882. About five years ago Mr. Greenwood notified the school district that it had no right to construct a new building upon the premises. Mr. Greenwood was the first one to question the right of thp district to these premises for a school-house site. The court below reached the conclusion that, under the arrangement with Mr. Fitch, the school district had a right to the occupancy of these premises so long as they were used for school purposes.

      Bichard Price, for complainants.

      Parkinson & Campbell, for defendants.

       Head-note by Grant, J. -

   Grant, J.

(after stating the facts). The position of complainants appears to have been a shifting one. Their bill was drawn upon the theory that those who made the arrangement with Mr. Fitch, and the school district, obtained a mere naked license,-revocable at the will of Mr. Fitch or his grantees. Their main argument in the court below, judging from the written opinion of the court, was that the license lasted only so long as the original school-house remained. In their brief they how argue only three propositions: (1) That the defendant district has no title such as is required by section 4673, 2 Comp. Laws 1897; (2) specific performance; and (3) adverse possession. The last two points are not before us for adjudication, for they were decided against the defendants, who have not appealed.

There are two complete answers to their first contention: First. Complainants’ bill is not filed by them, as taxpayers, to restrain an action of the school board as ultra vires, under section 4673, 2 Comp. Laws 1897, which reads as follows:

“No district in any case shall build a stone or brick school-house upon any site without having first obtained a title in fee to the same, or a lease for ninety-nine years; nor shall any district build a frame school-house on any site for which they have not a title in fee or a lease for fifty years, without securing the privilege of removing the said school-house,”'etc.

Second. If the defendants obtained from Mr. Fitch the right to the use and possession of this land so long as it was used for school purposes, then they have such a title as the' statute requires. Delhi School District v. Everett, 52 Mich. 314 (17 N. W. 926).

The right of the parties must therefore be determined by the character of the agreement with Mr. Fitch. The language used by Mr. Fitch, the immediate action taken thereon, the erection of the school-house the next spring, the organization of the school district out of the territory including the land of Mr. Fitch, the possession taken by the school district, its occupation for more than half a century, the frequent acts of repairing the school-house, and the construction and rebuilding of fences, clearly indicate that none of the parties understood, the one that he granted, and the others that they received, a mere naked license, revocable at the will of the licensor. If it is a license, the decree is erroneous. Wood v. Railroad Co., 90 Mich. 334 (51 N. W. 263); Nowlin Lumber Co. v. Wilson, 119 Mich. 406 (78 N. W. 338); Minneapolis, etc., R. Co. v. Marble, 112 Mich. 4 (70 N. W. 319). If it was an agreement to convey the land for school purposes upon the erection of a school-house, the full performance on the part of the contractees took it without the statute of frauds. Delavan v. Wright, 110 Mich. 143 (67 N. W. 1110); Pike v. Pike, 121 Mich. 170 (80 N. W. 5), and authorities there cited.

We think the proofs clearly establish the parol agreement, and the learned circuit judge virtually so held. The school district was in possession, and this was notice to all parties of its rights, and the title by which it held the land. The agreement made with Mr. Fitch was therefore binding upon all subsequent grantees, all of whom appear to have recognized the rights of the district until about 1895. The court,may have given a wrong reason for a right conclusion, but the decree for that reason will not be reversed. We think that the school district was in possession under a valid contract to convey the land for school purposes. It was undoubtedly in contemplation of those early settlers that a school district should be organized, and that said district, when organized, should succeed to this agreement and take possession of the land. It was the customary thing for early settlers to do. Probably no one thought of the importance of securing a deed from Mr. Fitch. Land was not then valuable, and it is not at all strange that no steps were taken to secure the deed agreed upon.

Decree affirmed, with costs.

The other Justices concurred.


text:
    CHAMBERLAIN v. FORBES.
    Mortgages — Tax Title.
    Where a mortgage was assessed as an interest in real estate under the tax law of 1891, and the land was sold to the State for nonpayment of the tax, neither the mortgagor nor his wife, who joined in the mortgage, could purchase the title of the State and set it up against the mortgagee, such purchase amounting only to a payment of the tax.
    Appeal from Monroe; Kinne, J.
    Submitted January 31, 1901.
    Decided February 27, 1901.
    Bill by Ruth Chamberlain against Elizabeth Forbes to set aside a mortgage. From a decree for defendant on her answer in the nature of a cross-bill, complainant appeals.
    Affirmed.

      O. H. Bose and Willis Baldwin, for complainant.

      Landon & Lockwood and E. S. Glarkson, for defendant.
   Long, J.

This bill was filed to set aside a mortgage given by the complainant and her husband, William Y. Chamberlain, to Sidney Forbes, administrator, etc., and assigned to defendant. The defendant answered, and asked the benefit of a cross-bill, and that a' tax title upon the premises held by the complainant might be decreed null and void as to defendant’s mortgage, and that the pretended purchase of said tax title be declared a payment of the tax. A decree was entered in accordance with the prayer of the cross-bill, and complainant appeals.

The complainant is the wife of William Y. Chamberlain. On the 24th day of February, 1891, they gave a mortgage to Sidney Forbes, administrator of the estate of Daniel Forbes, deceased, for the sum of $2,800, upon two pieces of land (one of 80 acres and the other of 30 acres)' in the township of Ash, Monroe' county. The pieces of land were separated by a highway, and constituted their farm. They resided upon the farm, the house being on the 80-acre piece. This had been their homestead, for about 10 years. The mortgage contained a clause requiring the mortgagors to “pay and discharge, within the time prescribed by law, all such duties, taxes, and assessments, extraordinary as well as ordinary, as shall by any lawful authority (whilst the moneys secured by these presents are unpaid) be imposed upon the premises,” etc. From time to time the Chamberlains paid something upon the interest on this mortgage, down to November 19, 1897. Sidney Forbes, administrator, assigned this mortgage to Elizabeth Forbes, his mother, the defendant, March 5, 1891, and the estate of Daniel Forbes was closed and he was discharged as administrator. The defendant foreclosed this mortgage by advertisement, and the property was bid in by her December 30, 1899, for $3,999.05, the amount then due, — principal, interest, and costs. On the 24th day of November, 1899, the bill in this case was filed. It is claimed by the defendant that this was the first actual notice she or her agent had of the nonpayment of any tax upon the property, or of any adverse claim by the complainant.

In 1893, more than two years after the assignment of the mortgage to the defendant, and after the estate of Daniel Forbes was closed and the administrator discharged, there was assessed in the township of Ash to “Daniel Forbes’ estate,” mortgagee, the sum of $2,500, and to William Y. Chamberlain, owner, the sum of $1,700, making the assessed value of the premises described in the mortgage $4,200. Chamberlain did not pay the tax on the mortgagee’s interest, and the same was not collected, and the land was returned delinquent therefor. At the annual tax sale held in December, 1895, the premises were bid in to the State. In December, 1896, these premises were on the “State tax list” for sale. The deputy county treasurer notified Mr. Baldwin, who was the attorney of William Y. Chamberlain, that the land was for sale, and Mr. Baldwin notified Mr. Chamberlain. Mr. Chamberlain, in his testimony, states what was done:

“I came to his [Baldwin’s] office first, and he came with me to the county treasurer’s office. I wanted to redeem the land in the first place, and they would not let me. I wanted to pay the taxes. They would not let me, because they said they had to sell it, and I could not redeem. My wife had to furnish the money. I got the money from Mr. Baldwin, and paid it in. Mr. Baldwin said, ‘ If it is going to be your wife’s money that is going to pay for it, bid it off to her; ’ and it was at his suggestion that the certificate was made in my wife’s name. All the money I had at the time was $5. I had no other money at home. My wife had some.”

He used the $5 he had, and borrowed the balance of Mr. Baldwin to pay the county treasurer.

It is the claim of the defendant that complainant had nothing to do with the purchase of this tax title, and knew nothing aboffifit, and that she was equally ignorant as to the bringing of this suit; that her husband has done everything, simply using her name; that after the making of the mortgage, and before the tax sales in 1896, the complainant became the owner of the 80-acre piece; that there was a deed made from her husband to complainant. ,This deed is not recorded. The husband says, referring to the 80-acre piece: “I think I calculated it was hers in 1895 and 1896.” In 1895 and 1896 the 80-acre piece was assessed to complainant, and the 30-acre piece to her husband. It is the further claim of the defendant that the complainant and her husband each owned a part of the premises; and that, at the time, the transaction was considered by them as a payment of the tax on their respective pieces, is evident from the indorsement made upon the back of the certificate of sale given by the county treasurer, signed by complainant:

“I hereby assign to Wm, Y. Chamberlain so much of the foregoing certificate as shall cover his portion and part of the within-described premises.
“Ruth Chamberlain.”

In the court below it was the claim of the defendant ■that, under the facts in the case,- the purchase of the tax title amounted only to a payment of the tax and a redemption of the land.

It is apparent from this record that, at the time of the taking of the certificate from the county treasurer, both Chamberlain and his wife considered the transaction simply as a payment of the taxes, as the wife at once assigned to her husband “so much of the foregoing certificate as shall cover his portion and part of the within-described premises.” The claim now made by Mrs. Chamberlain has no better, foundation than it would have had had it been set up by Mr. Chamberlain himself. He did not go to the county treasurer to purchase the tax title, but to pay the taxes, but at the suggestion of his attorney he made the purchase in his wife’s name. Whether, at the time of taking this certificate, the title to a part of the premises had been deeded to Mrs. Chamberlain, the record does not fully disclose. But it does appear that both Chamberlain and his wife treated the premises in that way; that is, that Mrs. Chamberlain had been deeded 80 acres, and Chamberlain owned the 30 acres. Whether this is so or not is of no great moment. They both signed the mortgage. It was expressly held in Maxfield v. Willey, 46 Mich. 255 (9 N. W. 371), that neither party to a mortgage can cut off the other’s interest by bidding in the premises at a tax sale, if the other'objects thereto.

The contract in the present mortgage provided that the mortgagors would “pay and discharge, within the time prescribed by law, all such duties, taxes, and assessments, extraordinary as well as ordinary, as shall by any lawful authority (whilst the moneys secured by these presents are unpaid) be imposed upon the premises,” etc. It is not necessary to determine in the present case whose duty it was to pay the taxes on the mortgage, as the court below decreed that they be paid by the defendant, and the defendant has not appealed. All we determine is that the mortgagors could not purchase the tax title, and then set it up as a title to defeat the mortgage.

The question was discussed at some length in the case of Connecticut Mut. Life Ins. Co. v. Bulte, 45 Mich. 113 (7 N. W. 707). R was there said:

“It is conceded that there are a great many cases in which parties standing in particular relations to the land, or to the owner or other person interested therein, are not suffered to acquire tax titles and rely upon them as against other claimants. Some of those are very plain, and it is quite unnecessary to do more than name them. A tenant, for example, who has covenanted to pay the taxes, cannot be suffered to neglect this duty, and then acquire a tax title which shall cut off the title of his land lord. Neither shall the purchaser in possession under an executory contract be allowed to cut off the rights of his vendor by a like purchase, nor'a mortgagor that of his mortgagee. A tax purchase made while such a relation exists is made in wrong; and the law, in circumvention of dishonesty, will conclusively presume that it was made in the performance of duty, and not in repudiation of it. ”

The language in that opinion was cited and quoted with approval in Brown v. Avery, 119 Mich. 387 (78 N. W. 331).

The court very properly held that, under the circumstances here shown, the complainant would not be permitted to set up a tax title thus acquired to defeat the mortgage.

The decree must be affirmed, with costs to the defendant.

The other Justices concurred.


text:
    BROWN v. CITY OF OWOSSO.
    1. Municipal Corporations — Injury from Defective Sidewalk —Notice to City — Manner of Injury.
    Under 1 Comp. Laws 1897, § 3173,-providing that no city of the fourth class shall he liable for injuries sustained by reascfn of any defective street or sidewalk unless the person so injured shall, within 60 days after the injury, file with the city clerk a notice setting forth substantially, among other things, the manner in which the injury occurred, a notice stating that the injury was caused by falling over “a loose plank upon a sidewalk” is sufficient, in the absence of a request for one more’-specific, though a technical construction of the language used might warrant the inference that the plank in question was not a part of the walk on which the accident happened.
    2. Same — Intent to Hold City Liable — Substantial Allegation.
    The further requirement of said section, that such notice shall state that the person injured intends to hold the city liable for the resulting damages, is sufficiently complied with by a recital that such person believes that he is entitled to $5,000 for the injuries received.
    3. Same — Failure of City to Aot.
    While a city council may be under no obligation to aid one claiming damages for personal injuries by pointing out for him, within the 60 days allowed for filing notice of such claims, substantial omissions in the notice filed, it must move seasonably if it seeks to avail itself of a merely technical defect.
    Error to Shiawassee; Smith, J.
    Submitted January 31, 1901.
    Decided February 27, 1901.
    Case by Minnie Brown against the city of Owosso for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Selden S. Miner (Spaulding, Norton & Booling, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Hooker, J.

The plaintiff brought an action growing out of an injury received by her through a fall upon a board sidewalk in the city of Owosso. That city is incorporated under the general law; sections 3081 and 3173, 1 Comp. Laws 1897, being involved in this cause. They are as follows:

“Sec. 3081. The council shall audit and allow all accounts chargeable against the city, but no account or claim or contract shall be received for audit or •allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed or the property delivered for the city, that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim; and every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each. It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city, for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance.”
“Sec. 3173. The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks, and public grounds within the city, and shall cause the same to be kept in repair and free from nuisance. No city subject to the provisions of this act shall be liable in damages sustained by any person in such city either to his person or property by reason of any defective street, sidewalk, cross-walk, or public highway, or by reason of any obstruction, ice, snow, or other incumbrance upon such street, sidewalk, cross-walk, or public highway, situated in such city, unless such person shall serve or cause to be served, within sixty days after such injury shall have occurred, a notice in writing upon the clerk or the deputy clerk of such city, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury as' far as the same has become known, and that the person receiving such injury intends to hold such city liable for such damages as may have been sustained by him.”

The record discloses that the following notice was filed within 60 days:

“Minnie Brown, being duly sworn, deposes and says that on Sunday evening, May 29th, 1898, about the hour of nine p. m., as she was returning to her home from the Baptist church in the city of Owosso, and was passing along and was upon the sidewalk in front of lot one, block two, on Oliver street, in the city of Owosso, she was tripped up by a loose plank upon the sidewalk which passes along upon the south side of Oliver street, in the said city. By reason of being tripped up by said plank, she fell upon her right knee and right side and hip, severely injuring her knee and her ankle, and injuring her right shoulder, right arm, and her right hip, and that portion of her right side in front and above the hip joint, and injuring herself internally at and near that place. At the time she was pregnant'with child, and her injuries were so great that it produced a miscarriage, and that for a long time her life was despaired of, and that she was compelled, in order to save her life, to employ two physicians and a nurse. That, although at the present time she is much improved, yet she is informed by her physicians, and so believes the truth to be, that her injuries are permanent. That said accident was caused without any negligence upon her part whatever, as she was passing along upon said sidewalk in a careful and prudent manner. That for her said injuries she believes she is entitled to the sum of five thousand dollars. She further says that said accident actually occurred as above set forth; that the sums charged therefor are reasonable and just; and that, to the best of her knowledge and belief, no set-off exists nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim.
“Minnie Brown.
“Subscribed and sworn to before me this 2d day of July, 1898.
“Clifford H. McCurdy, Notary Public.”

This notice was submitted to the common council at its next meeting, and the claim was referred to a special committee. Early in September, 1898, the committee reported in favor of disallowing the claim, giving no reason therefor. The 60 days had then expired. It is alleged that on April 10, 1899, the plaintiff filed her claim with the clerk, properly sworn to, and this was referred to a committee on claims and accounts, who recommended that it be not allowed. It was so ordered by vote of the council.

After the opening statement by plaintiff’s counsel, the defendant’s counsel objected to the introduction of any testimony, and this was sustained, and the court directed a verdict in favor of the defendant. The notice appears in the declaration. Both parties treat the case as depending upon the notice and action of the council. Counsel for the defendant contend that the notice was insufficient, while plaintiff’s counsel deny this, but allege that, if defective, the defect was. waived by the council. The alleged flaws in the notice are:

1. That the manner in which the accident occurred is not sufficiently set forth.

2. That it does not assert an intention to hold the city liable for such damages as she sustained.

Counsel contend that the notice shows no negligence upon the part of the city, and that it does not state that the walk was defective, or that one of its boards was loose, but that she was injured by falling over a loose plank lying upon the sidewalk. We think this a technically correct construction of the language, though most people would understand that the words “loose plank” referred to a plank of the walk which had become loosened. Had the words been transposed, so as to state that she had been tripped upon the sidewalk by a loose plank, it would have been a more definite statement, though even that would not have excluded the inference that the plank might have been one that was not at any time a part of the walk. This notice is not a pleading, and we are of the opinion that the requirement should not receive so strict a construction as to make it difficult for the average citizen to draw a good notice, especially in view of the evident intention-that a substantial statement should be sufficient, and the serious consequences of reliance upon a defective notice until after the expiration of the 60-day period.

Again, her statement that she believed herself entitled to $5,000 therefor was not the language used by the statute, but the only inference from the filing of this notice was that she was setting up a claim for $5,000 against the city based upon an injury caused by her falling over a loose board in its sidewalk. No doubt every councilman so understood it, and that would be sufficient were the paper a notice of a defense accompanying a plea. We are not prepared to say that the council might not have required a more specific notice before taking action, but it. did not.

It was forcibly urged that the council was under no obligation to consider the question until a proper notice was filed, and that it was not incumbent upon it to point out defects. It may be that a notice that does not contain substantial averments in compliance with the statute, as where some statement was wholly wanting, would not impose any duty upon the council to consider it, and might justify it in simply disallowing the claim at its convenience. We do not pass upon that question, but we think where, as in this case, the notice is sufficiently specific to contain a reasonably definite statement of time, place, manner, and extent of the accident to apprise the -council of the main facts, and that the injured person is entitled to specific damages by reason thereof, it is sufficient to set the council in motion, and relieve the plaintiff from the charge of noncompliance with the law as to notice. The cases cited are, as counsel claim, somewhat different from this, but there is a tendency shown to treat a notice as sufficient, though it be fnot technically accurate when measured by the statute strictly construed. Thus, in Germaine v. City of Muskegon, 105 Mich. 216 (63 N. W. 78), the plain intimation is given that, to avail itself of such an objection, the disallowance should have been based upon that defect. Inferentially, at least, it would seem to imply that this must be done seasonably, so as to permit a new notice, if possible. Any other inference would involve the conclusion that, after the expiration of the 60-day period, the rights of the city would depend upon the manner of stating its disallowance of a claim for a liability that had ceased to exist, if it had ever existed.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    LAVIOLETTE v. ALBERTS.
    Trial — Instructions—Particular Man’s Testimony.
    Where the testimony was brief, and limited to the two parties, and there was no possibility of a mistake, an instruction that, if the jury believed the testimony of defendant, the plaintiff could not recover, was not improper.
    Error to Muskegon; Russell, J.
    Submitted January 31, 1901.
    Decided February 27, 1901.
    Case by Charles Laviolette against Silas L. Alberts and Albro Enos, copartners as S. L. Alberts & Company, for breach of warranty. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Edward D. Haines (Cross & Lovelace, of counsel), for appellant.

      Stephen H. Clink, for appellees.
   Hooker, J.

The question in this case upon its trial was whether the defendant was liable upon a breach of warranty that certain onion seed sold by him to the plaintiff was of the Southport Red Globe variety. The only dispute was whether the defendant sold it as such without qualification, or with the statement that he bought it for that, but no man could be sure that onion seed bought in the market would prove true to name. The only testimony upon the disputed question was that of the two parties. One said it was sold without qualification; the other contradicted him.

The court left the case to the jury in a fair charge, but gave a request as follows:

“The defendants asked the court to charge the jury, as a matter of law, that, if they believe the testimony of Mr. Enos, the plaintiff cannot recover in this case.”

Oases have been reversed upon such direction in some instances, but it was where, owing to the volume of testimony and number of witnesses, there was reason to believe injury might have been caused thereby. Chase v. Iron Works, 55 Mich. 139 (20 N. W. 827); People v. Simpson, 48 Mich. 478 (12 N. W. 662); Fraser v. Haggerty, 86 Mich. 531 (49 N. W. 616). Here the testimony is brief and pointed, and there was no possibility of a mistake, in view of the remainder of the charge.

The other questions need not be discussed. We think there was no error in them.

The judgment is affirmed.

The other Justices concurred.


text:
    KEYSTONE MANUFACTURING CO. v. FORSYTH.
    Promissory Notes — Defenses — Failure of Consideration — General Issue.
    Where, in an action on a promissory note, defendant pleaded the general issue, with notice that money paid by him to plaintiff on the purchase of a machine was without consideration because of a breach of warranty of the machine, evi. dence that the note in suit was given as part of the purchase price of the machine, and that, by reason of the breach of warranty, the contract was rescinded and the machine returned to plaintiff, was properly admitted, as against the objection that the notice under the plea made no reference to the note, since a total failure of consideration was provable under the general issue.
    Error to Wayne; Frazer, J.
    Submitted February 1, 1901.
    Decided February 27, 1901.

      Assumpsit by tbe Keystone Manufacturing Company against Charles Forsyth and Charles Neuendorf upon a promissory note. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Hamilton Baluss, for appellant.

      William G. Gottman, for appellees.
   Long, J.

This action was commenced in justice’s court in April, 1891. The declaration was in assumpsit on a promissory note, describing it, and claiming damages of $300. Defendants pleaded the general issue. Plaintiff had judgment, and defendants appealed to the circuit court. The cause was tried in the| circuit, where defendants had judgment, and, on appeal by plaintiff to this court, the case was reversed and remanded for new trial. That case is reported in 115 Mich. 51 (72 N. W. 1109). The cause was again tried in the circuit court, and the defendants again had judgment. On appeal here the cause was again reversed and remanded. 123 Mich. 626 (82 N. W. 521). Another trial has since been had in the circuit court, and again the defendants had judgment, and plaintiff again comes into this court by writ of error.

It is unnecessary to set out the facts, as they are quite fully set out in the former opinions. The cause was reversed on the first hearing here on the ground that the set-off attempted did not belong to both defendants, and therefore was not within 1 Comp. Laws 1897, § 776, subd. 6. It was reversed the second time for the reason that the court below gave an erroneous charge as to the burden of proof. It appears that the pleadings stood as originally framed until February 5, 1898, when the defendant’s attorney, Gottman, filed a notice by leave of the court under his plea that :

“The defendant will show, under the general issue heretofore pleaded in justice’s court and under the amended pleadings, that said defendant Forsyth, for and in consideration of a combined corn-husker and fodder-cutter purchased from said plaintiff by said defendant, and relying on the representations of said plaintiff that said corn-husker and fodder-cutter would do the work represented by said plaintiff, upon a warranty, paid said plaintiff one hundred dollars, and for which he, said defendant, on account of the misrepresentations made by said plaintiff, and by not doing the work it was represented to do, has received no consideration for said one hundred dollars paid by said defendant to said plaintiff, and that on which trial said defendant will show that said defendant Forsyth is entitled to recover from said plaintiff under set-off the sum of one hundred dollars.”

Notice of want of consideration for the payment of the money is thus set up.

The court below permitted the defendants to show that the note sued upon was given for the machine, and that the machine did not work according to the conditions of the warranty, and that the defendant refused to accept the machine and rescinded the contract. It was objected to by counsel for plaintiff on the ground that the note was not mentioned or referred to in the notice, and that the notice does not point out in what respect the contract was broken, and that the notice is only one of set-off. Counsel is in error in the position he takes in the case on the notice. It was expressly held in Perkins v. Brown, 115 Mich. 41 (72 N. W. 1095), that the total failure of consideration can be shown under the plea of the general issue.

The judgment must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. STRATTON.
    Criminal Law — Larceny—Replevin—Fraudulent Conversion..
    Where respondent replevied certain property concerning the-title to which an honest difference existed, and disposed of the same pending the litigation, he did not thereby render himself amenable to criminal prosecution for larceny, although ultimately defeated in the suit; the provisions of & Comp. Laws 1897, § 11570, — declaring that any person to-whom property is delivered which may be the subject of larceny, who shall fraudulently convert the same to his own use, shall be deemed guilty of larceny, — not being applicable-to such a case.
    Error to Van Burén; Carr, J.
    Submitted February 14, 1901.
    Decided February 27, 1901.
    Theodore Stratton was convicted of larceny, and sentenced to imprisonment for three years in the State prison at Jackson.
    Reversed.

      Hammond & Hammond, for appellant.

      David Anderson, Prosecuting Attorney, for the people.
   Moore, J.

An information was filed against the respondent charging him with the larceny of one cow, one colt, one yearling heifer, and five sheep, the property of Charles H. Wall. He was convicted, and sentenced to State prison for three years.

The record discloses the criminal complaint was made by Mr. Wall April 5, 1900. Mr. Wall, prior to the 14th of March, 1899, had been a tenant for several years on the farm of Mr. Stratton. When he left the farm, in March, he took with him the. property in controversy. The respondent, claiming the right to the possession of the property, on the 15th of March, 1899, commenced an action of replevin for it in justice’s court. The property was taken under the writ of replevin by the sheriff, and delivered to Mr. Stratton. The usual declaration in replevin was filed. Mr. Wall appeared by attorney, pleaded the general issue, and gave notice that a portion of the property was not the property of Mr. Stratton, hut belonged to the wife and . children of Mr. Wall, and that another portion of it was partnership property, and the accounts between the parties had not been settled, and that, by virtue of the partnership agreement, the defendant was entitled to the possession of the property. A trial was had before a jury May 25, 1899, which returned a verdict in favor of defendant, and a judgment was entered for a return of the property. On the 29th of May the respondent filed an affidavit and bond for an appeal from the justice’s court to the circuit court, and the justice made his return to the circuit court. Afterwards an •order was made that respondent be required to give an additional bond in the circuit court. This was not done, •and the appeal was dismissed. In October, 1899, Mr. Wall commenced suit in the circuit court against Mr. Stratton and the surety on the appeal bond. In February, 1900, he obtained a judgment against them. Upon this judgment an execution was issued, and on the 20th -of February a levy was made upon 130 acres of land. The execution had not been returned when the trial of the criminal case was had.

The information is filed under section 11570, 3 Comp. Laws 1897, which reads as follows:

“If any person, to whom any money, goods, or other property which may be the subject of larceny shall have been delivered shall embezzle or fraudulently convert to-his own use, or shall secrete with the intent to embezzle or fraudulently use, such goods, money, or other property, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny.”

It is the claim of the people that because the sheriff, after obtaining the property by virtue of the replevin, delivered it to the respondent, .and the latter sold it, instead of returning it to Mr. Wall when the appeal was dismissed from the circuit court, this proceeding is justified,, if Mr. Stratton fraudulently converted the property to his own use, and that the jury was justified in finding he fraudulently converted the property. At the conclusion of the testimony the court was requested to direct a verdict for respondent, but declined to do so. Upon the trial the respondent sought to show the property in question was his, and not the property of Mr. Wall. The circuit judge held the judgment in the justice’s court was conclusive as to the title of the property, and refused to admit-any testimony bearing upon that point. Upon the trial in the justice’s court the respondent was represented by an attorney at law of 20 years’ practice. It appears from the testimony of the respondent that, while the litigation was pending, he sold his farm. ' It also appears from his testimony, and that of his lawyer, that, when a verdict was rendered against him in justice’s court, he was advised by his attorney that, when he had perfected his appeal by filing his affidavit and bond, the bond stood in the place of the property, and that he had a right to sell it pending the litigation. The respondent claimed that he thought he had the right to the property when he commenced his action of replevin, and that when he had given the appeal bond he supposed he had a right to dispose of it, as he had been advised by his counsel, and that if he had not so supposed he would not have sold it.

Error is assigned upon the admission of testimony, upon the refusal of the court to direct a verdict,‘and upon various portions of the charge to the jury. It will not be necessary to discuss these assignments of error in detail, for the reason that we are all agreed the provisions of the section under which this information was filed do not apply to a case like the one at bar. It is impossible to read this record without reaching the conclusion that honest differences arose between the complaining witness in the criminal case and the respondent as to the ownership of property which was taken from the farm of Mr. Stratton by Mr. Wall when his tenancy ceased. This controversy should have been left for settlement in the civil court. The provisions of the criminal law should not be invoked under the circumstances disclosed by this record.

The judgment is reversed, and the respondent is .discharged from custody.

The other Justices concurred.


text:
    PEOPLE v. VAN MAREN.
    Illegal Pishing — Complaint—Evidence.

       Under a complaint for illegal fishing, charging the locus of the offense as in the Grand river, township of Grand Haven, county of Otta-wa, it is competent to show that the offense was committed anywhere within the county.
    Exceptions before judgment from Ottawa; Padgham, J.
    Submitted February 15, 1901.
    Decided February 27, 1901.

      Petei* Van Maren was convicted of illegal fishing.
    Affirmed.
    Respondent was convicted in justice’s court of fishing contrary to Act No. Ill of the Public Acts of 1889 (2 Comp. Laws 1897, § 5861 et seq.). The complaint charged the locus to be in the waters of the Grand river, in the township of Grand Haven, in the county of Ottawa. Two witnesses testified that they saw the respondent set the nets. The respondent introduced no testimony, except that of one witness to show that the locus was within the limits of the city of Grand Haven, and not in the township.

      Walter I. Lillie, for appellant.
    P. JET. McBride, Prosecuting Attorney, for the people.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). Counsel for respondent requested the court to instruct the jury that if the fishing was done within the limits of the city of Grand Haven, and not within the township, they must acquit. This was refused, the court instructing them that it was sufficient to convict if the act was doiie within the county of Ottawa. The instruction was correct. People v. Waller, 70 Mich. 237 (38 N. W. 261).

We have examined the other points raised, and find no error. They are not of sufficient importance to require a written opinion.

The conviction is affirmed, and the court below directed to proceed to sentence.

The other Justices concurred.