author: Moore, C. J.. Moore, C. J.

text:
    HOFFMAN v. H. M. LOUD & SONS LUMBER CO.
    1. Saving Question fob Review—Unresponsive Answer—Witnesses.
    Reversal will not be granted because an unresponsive answer to a proper question was objectionable as hearsay, no motion having been made to strike it out.
    2. Same—Ruling.
    Error assigned to the examination of a witness is unavailing where the record does not disclose that any objection was made to questions asked, or that any rulings were made with reference to which exceptions were taken.
    8. Taxation—Sales—Deeds—Prima Facie Effect—Graduation Act.
    The graduation act of 1881 (Pub. Acts 1881, No. 229), as amended in 1882 (Act No. 7), did not destroy the prima facie effect of tax deeds issued thereafter pursuant to sales made before the passage of such acts.
    4. Same—Deeds—Right to Assail Title—Statutes.
    Act No. 11, Pub. Acts 1882, did not have effect to repeal, as to titles theretofore obtained, the provision of the general tax law of 1869 (No. 169, § 164) relating to who might attack the validity of tax titles.
    5. Same—Timber—Trover for Conversion.
    In trover for the conversion of timber taken from land which the plaintiff claims through tax titles, a contention, by defendant, that though under the statute- he cannot attack the validity of plaintiff’s title as to the land, he can as to the timber, is untenable.
    -6. Interest—Rate—Change of Statute—Harmless Error.
    Where there have been two changes in the statutory rate of interest during the time for which interest is to be calculated, an instruction to use the middle rate is harmless to defendant where the amount so found is less than it would be under a proper computation.
    on rehearing.
    1. Statutes—Construction—Implied Repeals.
    Repeals by implication are not favored, and, before it can be said that the legislature intended to make a radical departure from the settled policy of the State, such intention must be made to appear by language that is unambiguous, and not susceptible of two constructions.
    2. Taxation—Sales—Deeds—Effect—Regularity of Proceedings.
    The tax legislation of 1881 and 1882 did not repeal the provisions of the previous tax laws making the auditor general’s deeds to unredeemed tax lands prima facie proof of the regularity of the tax proceedings.
    Error to St. Clair; Tappan, J.
    Submitted April 12, 1904.
    (Docket No. 30.)
    Decided October 18, 1904.
    Motion for rehearing granted March 28,1905. Reargued June-27, 1905.
    (Docket No. 2.)
    Former opinion affirmed July-24, 1905.
    Trover by John M. Hoffman against the H. M. Loud & Sons Lumber Company and others. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Main J. Gonnine, for appellants.

      Avery Bros. & Walsh and Phillips & Jenks, for appellee.
   Moore, C. J..

This case has been here before. It is reported in 111 Mich. 156. Upon the last trial the plaintiff recovered a judgment for $2,222. The defendants have brought the case here by writ of error. The suit was commenced February 8, 1892. It is trover brought for the conversion of logs which defendants bought from one Monroe, who, plaintiff claims, cut the logs from timber on land belonging to him. It is plaintiff’s claim that William H. Rix and Coolidge M. Comins obtained from the United States a patent of the land in July, 1872;. that those men were partners engaged in lumbering; that their partnership ended in the spring of 1872; that it was then agreed verbally that Comins should have the timber; that he cut and removed all that was valuable during the fall and winter of 1872 and 1873, when Rix and Comins abandoned the land, not even paying the taxes on it. The taxes were not paid for the years 1872 to 1881, inclusive, but for the taxes of each of these years the land was sold to the State. In 1882 the plaintiff bought the title of the State, obtaining a tax deed from the auditor general for the taxes of those years. In 1884 the plaintiff obtained another tax deed from the auditor general. January 20, 1886, William H. Rix deeded by quitclaim deed his interest in the land to Frank Hoffman, who conveyed the interest to the plaintiff. It is the claim of the plaintiff that in the winter of 1885 and 1886 John Monroe cut the timber into logs, and sold them to defendants, delivering them at the Au Sable river.

The defense, as stated by counsel, is:

1. That plaintiff’s tax titles were void.

2. That Monroe cut the timber and sold it to the said trustees under a license from the original owners, Rix and Comins, which license inured to the benefit of defendants.

3. The statute of limitations.

The first assignment of error argued in the brief relates to the testimony of Weaver in relation to what he understood about a controversy between Monroe and Hoffman, it being the claim that this testimony was hearsay. The question put to the witness did not call for hearsay testimony, but was a proper question. His answer was not responsive. No motion was made to strike it out because not responsive, or because it was hearsay. This being the situation, we'cannot reverse the cause because of the answer. See People v. Howard, 73 Mich. 12; Baumier v. Antiau, 79 Mich. 516; Mulliken v. City of Corunna, 110 Mich. 212; Weiser v. Welch, 112 Mich. 134.

Error is assigned upon the examination of the witness Annis. The record does not disclose that objection was made to the questions that the court ruled upon, or that exceptions were taken.

Error is assigned to the reading in evidence of the cross-examination of James Burton and the testimony of George A. Loud. Previous to the trial in St. Clair county a stipulation had been made “that any testimony heretofore taken upon the trials in Iosco county, and reduced to writing by the official stenographer” might be read in evidence. We think the stipulation broad enough to cover-what was done.

There are other assignments of error which relate to the admission of oral testimony. We have examined them, but do not deem it necessary to discuss them. One of the most important questions in the case is, Did the judge err in holding that the tax deeds held by plaintiff were prima facie evidence of title ? The deeds are dated October 19, 1882. It is claimed that because of the amendment made to the tax law by Act No. 7, Pub. Acts 1882, the deeds were not prima facie evidence of title. It should not be forgotten that the land was sold to the State at least four times before the passage of Act No. 7. Its title under each of its sales when it was obtained was prima facie valid. We do not think the effect of the “graduation act ” of 1881 (Pub. Acts 1881, Act No. 229), as amended by Act No. 7, Pub. Acts 1882, resulted in doing away with the prima facie effect of these deeds. See Tillotson v. Saginaw Circuit Judge, 97 Mich. 585; Harding v. Auditor General, 136 Mich. 358.

The next important question is, Did the court err in holding that defendant could not attack the tax title of plaintiff ?

Section 1166, 1 How. Stat. (Laws 1869, Act No. 169, § 164), provides:

“No person shall be permitted to question the title acquired by such auditor general’s deed, without proving that he, or the person through whom he claims title, had title to the land at the time of the sale thereof for nonpayment of taxes, or subsequently, which title was acquired from the United States or from this State.”

It is said plaintiff cannot invoke this provision of law because he did not purchase until seven months after it had been repealed by Act No. 11, Pub. Acts 1882. We have already said the State got a title long before Act No. 11, Pub. Acts 1882, was passed. If this was not a protection to the plaintiff, does the repealing clause have the effect for which defendant contends ? It reads'.

“The same is hereby repealed so far as relates to future assessment of taxes and the steps to collect the same. They remain in force only for the completion of all proceedings heretofore begun for the collection of taxes, except as otherwise provided by law, and for the protection of all rights gained thereunder and conveyance of land heretofore sold, or that may hereafter be sold, and all actions commenced and now pending under the provisions thereof.”

We do not think this had the effect to do away with the provision relating to who might attack the validity of the tax title. See Tillotson v. Saginaw Circuit Judge, 97 Mich. 585.

Counsel says, even though the section is in full force when the title to the land is in issue, it does not apply where the title to the timber taken from the land is in issue, and therefore defendant should have been permitted to attack these titles. If counsel is right in this contention, a person owning land chiefly valuable for timber would have a title unassailable by one claiming title, but, if the same person became a trespasser and remover of the timber, he could attack the title. A statement of the proposition is its own answer.

There are other assignments of error, which we have examined, but the only further question calling for discussion relates to the rate of interest. The jury computed it at 6 per cent. Counsel says that because of the provisions found in Act No. 207, Pub. Acts 1899, which reduces the legal rate of interest to 5 per cent., it should have been figured at that rate. The logs were converted in the winter of 1885 and 1886. The verdict was rendered in April, 1903. The legal rate was 7 per cent, until October, 1891, when it became 6 per cent., and so remained until September, 1899, when it became 5 per cent. If the computation had been made at these rates during these several periods of time, the amount would have been larger than the verdict which was rendered, so that defendant was not harmed. See 16 Am. & Eng. Enc. Law (2d Ed.), p. 1060.

Judgment is affirmed.

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

ON REHEARING.

Moore, C. J.

This case was here and is reported in 111 Mich. 156. It was here again and is reported ante, 5. Upon the application of the defendants, a rehearing was ordered. A reference !o the two opinions which have been filed in the case will make a detailed statement here unnecessary.

The question about which this court was in doubt when it ordered the rehearing, and to which the arguments have been principally directed is, Was this court in error in sustaining the ruling of the trial court that the tax deeds offered by plaintiff were prima facie evidence of title ? The deeds were- in form as follows:

“ This indenture made the 19th day of October in the year of our Lord one thousand eight hundred and eighty two, between Hubert R. Pratt, deputy auditor general of the State of Michigan, of the first part, and John M. Hoffman, of Port Huron, Michigan, of the second part, Wiinesseth:

“ That, whereas in pursuance of the provisions of law, the said party of the second part did on the 19th day of October, A. D. 1882, become the purchaser of the rights of the State in and to the following described lands situate in the county of Alcona and State of Michigan in said State which were bid off to the State for the taxes assessed thereon for the year 1872-3-4-5-6-7-8 and 1879, to wit: south half of the southwest quarter of section 36, in town 27 north of range 3 east, containing 80 acres more or less.

“ And whereas the said party of the second part obtained a certificate from the auditor general for the purchase of the above described lands according to law, and paid to the State treasurer upon such certificate the sum of $43.92, being the amount of purchase money thereof as provided by law, which certificate has been presented and surrendered to the said auditor general.

“Now therefore this indenture witnesseth that the said Hubert R. Pratt, deputy auditor general of the State of Michigan, in the name of the people of the State, and by virtue of the authority in him vested by the laws thereof, in consideration of the premises and the payment of the purchase money above mentioned, the receipt whereof is hereby confessed and acknowledged, does by these presents remise, release, and quitclaim unto the said John M. Hoffman, party of the second part, and to his heirs and assigns forever all the rights acquired by the State in virtue of the original sale or sales, to the State in the premises above described, subject to all taxes duly assessed thereon.

“In testimony whereof the said Hubert R. Pratt, deputy auditor general as aforesaid, has hereunto set his hand and seal the day and year first above written.

“ Hubert R. Pratt, [L. S.]

Deputy Auditor General

“of the State of Michigan.”

“Signed, sealed, and delivered in presence of

‘ ‘ Abram Harnlet,

“ Edith A. Degue.”

The deed was duly acknowledged, and on its margin was printed the following: “No. 139, one certificate, Act 229, Laws of 1881, 20869, State tax land deed.”

It is conceded that had the purchaser at the tax sale been an individual, instead of the State, his deed would have been prima facie evidence of title. It is insisted, however, on the part of defendants, that plaintiff obtained his deeds under the provisions of Act No. 229, Pub. Acts 1881, as amended by Act No. 7, Pub. Acts 1882, and that, as the deed provided for in the last-named act is not by its terms made prima facie evidence of title, it cannot be so regarded. It is also claimed that even though plaintiff’s tax deeds were not obtained under the law of 1881, as amended by Act No. 7 of 1882, as it was dated October 19, 1882, and as the general tax law of 1869 was repealed by Act No. 11 of the Public Acts of 1882, the deeds are not prima facie evidence of title.

In support of these contentions, counsel for defendants cite Ball v. Busch, 64 Mich. 336; Busch v. Nester, 70 Mich. 532; and Norris v. Hall, 124 Mich. 170. On the part of the plaintiff it is claimed that Act No. 229, Pub. Acts 1881, as amended by Act No. 7, Pub. Acts 1882, was supplemental to the existing provisions of law, and was passed to enable the State to sell its large holdings of State tax lands, and that it did not repeal the provisions of the general tax law of 1869 as to the prima facie character of the deeds. The plaintiff further claims that he obtained his tax deeds under the general tax law of 1869, and, though it was not obtained until that law was repealed by Act No. 11 of the Public Acts of 1882, the benefit of the prima facie character of the deeds was saved by the proviso in the repealing clause; citing Tillotson v. Saginaw Circuit Judge, 97 Mich. 585, and Harding v. Auditor General, 136 Mich. 358.

There were three acts passed in 1882 relating to the question of taxes: Act No. 7, which amended Act No. 229 of the Public Acts of 1881; Act No. 9, which was a general tax law, intended to take the place of the general tax law; and Act No. 11, which repealed previous tax laws, except as they were saved by its proviso. It must be confessed that, in deciding cases as to the legal effect of tax deeds issued for the taxes of a series of years preceding and following the enactment of the three acts of 1882, language has been used which it is difficult to harmonize. As early as in 1843 it was provided that the deed given to purchasers 'at tax sales “should be prima facie evidence of the regularity of all the proceedings to the date of the sale.” In a well-considered opinion written by Justice Wing in Sibley v. Smith, 2 Mich. 486, the reasons are given for this provision of the law. He said:

‘ ‘ Where it is doubtful what construction should be placed upon a statute [the same as this, one] the court is authorized to collect the intention of the legislature from the occasion and necessity of the law, from the mischief felt, and the object and the remedy in view, and the intention is to be taken or presumed according to what is consonant to reason and good discretion. * * * An examination of the legislation of this State will throw light upon the intention of the legislature as manifested by the clause in question. The legislature for many years was changing statutes concerning tax deeds in an effort to make deeds more effective. This was a period of great depression in the money market. The treasury of the State was empty, and the state owed a very large debt. Eastern men were unwilling to hazard their money in the purchase of tax titles where the resident had so little interest in aiding them to perpetuate the evidence of their titles. The courts of this State as well as of other States had been exceedingly astute in searching out errors in tax sales, and this course of proceeding had prevailed to such an extent that at length it was generally believed that no valid title could be acquired under a tax sale. To obviate these difficulties a new system was devised in 1842, and another one in 1843, which was much better calculated to insure a sale of delinquent tax lands, as it provided that the deed to be given to purchasers at tax sales should be prima facie evidence of the regularity of all the proceedings to the date of the sale. * * * We prefer to act upon the rule that it is the duty of a judge to make such a construction as shall repress the mischief and advance the remedy, and this is held to be the case in an especial manner in respect to statutes of public utility.” .

In all the subsequent amendments made to the tax law prior to the passage of Act No. 7 of the Public Acts of 1882, this provision of the law was not changed, except to make it stronger. Section 1092, 1 How. Stat. (section 91, general tax law), provided that the tax deed “shall be prima facie evidence of the regularity of all the proceedings from the valuation of the lands by the assessors to the date of the deed inclusive and of title in fee in the purchaser.” Did the amendment of Act No. 229 of the Public Acts of 1881, by the passage of Act No. 7 of the Public Acts of 1882, change the policy of the State in relation to the evidentiary quality of these deeds, and re-establish in relation to them the rule of strict construction of the common law, which requires that a party claiming title under special proceedings authorized by statute shall prove that all the material requirements of the statute have been complied with, before the deed can be received in evidence ? Before answering this question, it will be well to consider the existing provisions of the law, and the situation of the State in relation to its ownership of tax lands when Act No. 7 of the Public Acts of 1882 was passed. Section 1118, 1 How. Stat., provided that the State tax lands not redeemed or otherwise discharged should be offered for sale at the annual tax sales in each year. The subsequent sections provided for the preliminaries to the making of the sale, for the sale itself, and for the issuing of certificates of sale by the county treasurer. Section 1126 provided for the execution, upon the surrender of the certificate of sale, of a deed to the purchaser by the auditor general,—

“Which shall convey all the right acquired by the State under the original sale or sales: Provided, that such deed shall be subject to all the conditions, and have the same force and effect as is given by section 91 of this act [section 1092, 1 How. Stat.] to deeds executed in accordance with the provisions thereof.”

Section 1129 provides for the sale of State tax lands at private sale by paying the amount for which the same was first offered in the county, as State tax land, with interest at 10 per cent, per annum. The next section (1130) provides for the execution of deeds to the purchaser by the auditor general. Section 1131 provides:

“All the provisions of law relative to deeds executed by the auditor general, on the surrender of certificates of sale of State tax lands, issued by the several county treasurers, shall be applicable to deeds executed by him for lands purchased at his office, pursuant to the provisions of this act.”

It will be seen that the effect of these various provisions was to make all deeds executed by the auditor general of State tax lands prima facie evidence of the regularity of the proceedings, and of the title in fee of the purchaser. This, then, was the situation of the law when Act No. 229 of the Public Acts of 1881 was passed. It is a matter of common knowledge with those at all familiar with the relation of the State to its tax lands that it was loaded up with them. The provisions of law in relation to their public and private sale to which we have called attention did not have the effect of securing purchasers. This being the situation, the legislature undertook to remedy it by the passage of Act No. 229 of the Public Acts of 1881. This act contained but three sections. The first section provided for the purchase by the original owner of the title within six months after the act took effect, at private sale, upon application to the auditor general. The second section provided for the purchase by any person after the act had been in effect six months, upon application to the auditor general. The purchase under both sections could be made upon more favorable terms than was provided by sections 1127, 1129, 1 How Stat. Section 3 provided for the execution of deeds by the auditor general, and it further—

“ Provided, Nothing herein contained shall be construed to prevent any person from purchasing any of said lands under existing laws at any time.”

No reference was made to the provisions of sections 1118-1125, 1 How. Stat., in relation to the public sale of State tax lands, nor was there any legislation in the act upon that subject, nor is there any suggestion therein as to what effect should be given to the deeds thereunder. The more favorable provisions of this act did not afford the relief it was hoped it would bring, and the legislature met in extra session in 1882, and Acts Nos. 7, 9, and 11, Pub. Acts 1882, were passed. As before stated, Act No. 7 amended Act No. 229, Pub. Acts 1881. The amendment to section 2 is not material to this controversy. The amendment to section 3 enabled one to purchase the lands for a period of four months after October 1, 1882, by paying the amount of the original taxes, then for four months by paying three-fourths of the amount of the taxes, then for a like period by paying one-half the amount of the taxes, and then for a period of time by paying one-fourth of the, amount of the taxes. There were other provisions in this section, which it is not necessary to recite. There were four new sections added to the act. Section 4 provided for the public sale of the lands. Sections 5 and 6 read:

“Sec. 5. Such auction sales by county treasurers shall be conducted in all respects as near as may be as sales of State tax lands have been heretofore conducted by such treasurers, and shall be continued from day to day in like manner, until all such lands are disposed of; and certificates shall be given to purchasers on such sales in substantially the same manner and with like effect as such certificates have been heretofore given by county treasurers to purchasers of State tax lands.

“Sec. 6. On presentation of such certificates to the auditor general and on all sales made by the auditor general he shall execute to the purchaser a deed conveying all the right, title, and interest of State in and to said State tax lands, but subject to all taxes assessed subsequent to the year eighteen hundred and eighty, and the deed shall so state.”

• It is not necessary to refer to section 7. There was no repealing clause to the act, and no statement made as to what the effect of the deed should be. No reference whatever was made to section 1131, 1 How. Stat., which we have heretofore quoted in full, nor to section 1092, 1 How. Stat. This act was approved March 13, 1882, and given immediate effect. On the following day Act No. 9 was approved and given immediate effect. This act was entitled “An act to provide for the assessment of property and the levy and collections of taxes thereon.” It was a general scheme, and was intended from then on to cover the entire field embraced in its title. It provided for a hearing and a decree in the circuit court before the land should be sold for taxes. Section 84 reads:

“No tax assessed upon any property, or sale therefor, shall be held invalid on account of,any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that does not prejudice the rights of the person whose property is taxed; and all proceedings in assessing and levying taxes, and in the sale and conveyance therefor, shall be presumed to be legal until the contrary is affirmatively shown. All records, statements, and certificates herein provided for shall be prima facie evidence of the facts therein set forth. The absence of any record of any proceeding, or the omission of any mention in any record of any vote or proceeding, or of mention of any matter in any statement or certificate that should appear therein under the provisions of any law of this State, shall not affect the validity of any proceeding, tax, or title depending thereon, provided the fact that such vote or proceeding was had or tax authorized is shown by any other record, statement, or certificate made evidence by the terms of this act or any other law of this State. No tax, or sale of property for any tax, shall be rendered or held invalid by showing that any record, statement, certificate, affidavit, paper, or return cannot be found in the proper office; and unless the contrary is affirmatively shown, the presumption shall be that such record was made and such certificate, statement, affidavit, paper, or return was duly made and filed. Where any statement, certificate, or record is required to be made or signed by a school district board or a township board, such statement, certificate, or record may be made and signed by the members of such boards, or a majority thereof, and it shall not be necessary that other members be present when each signs the same. The provisions of this section shall not'be construed to authorize any showing impeaching the validity of any deed executed by the auditor general under the provisions of this act, but such deeds shall be held absolute and conclusive as herein provided.”

Section 85 reads:

“ In any suit or proceeding to enforce or set aside any tax, such tax shall be held illegal only for one of the following reasons:

“ First, That no law authorizes such tax.

‘ ‘ Second, That the person or persons appointed to decide whether a tax shall be raised under a given law have •acted without jurisdiction, or have not imposed the tax in ■question.

‘ ‘ Third, That the person or property assessed was exempt from the taxation in question, or was not assessed.

Fourth, That the tax has been paid.

“Fifth, That the supervisor or board of review, in assessing a person or property for taxation, or in the apportionment of the tax to the person or property in question, acted fraudulently.

‘ ‘ If any such illegality, omission, or fraud affects the amount of the tax only, the tax shall be sustained so far as the same is just and legal.”

On the same day that Act No. 9 was approved, ActNo. 11 was approved, and was given immediate effect. This was a repealing act of many laws relating to the assessment and levy of taxes. It concluded with these words:

‘ ‘c An act to provide for a uniform assessment of property, and for the collection and return of taxes thereon; ’ and all acts amendatory thereof, be and the same all are hereby repealed, so far as relates to the future assessment of taxes and the steps to collect the same. They remain in force only for the completion of all proceedings heretofore begun for the collection of taxes, except as otherwise provided by law, and for the protection of all rights gained thereunder, and conveyance of land heretofore sold or that may hereafter be sold and all actions commenced and now pending under the provisions thereof.”

It is apparent from this statement of the situation that the legislature supposed that by the passage of these three acts it had covered all the essentials of a complete system of taxation. Is there anything in this legislation to indicate that deeds issued by the auditor general either at public or private sale shall lose the prima facie quality which attached to them before this legislation was enacted? We have already stated the substance of all that was contained in Act No. 7, and that there was no repealing clause in it. It is a well-settled principle of law that repeals by implication are not favored. Connors v. Iron Co., 54. Mich. 168; Tillotson v. City of Saginaw, 94 Mich. 244; Lake Superior, etc., Iron Co. v. Auditor General, 79 Mich. 351; Merriman v. Jackson Circuit Judge, 96 Mich. 603.

Before it can be said the legislature intended to make so radical a departure from the settled policy of the State as is contended for by counsel for defendant, we think it ought to be made to appear by some language not ambiguous and susceptible to two constructions. This is not done by the language used in Act No. 7. Is it done by the repealing clause in Act No. 11?" It provides for the repeal of former acts, to use its exact language, “so far as relates to the future assessment of taxes and the steps to collect the same.” It provides the prior laws remain in force “for the completion of all proceedings heretofore begun for the collection of taxes except as otherwise provided by law, and for the protection of all rights gained thereunder and conveyance of land heretofore sold or that may hereafter be sold.” We do not think this had the effect of repealing the various provisions of the law in relation to the prima facie character of the deeds issued for the State tax lands. The language used in Blackwood v. Van Vleit, 30 Mich. 118, seems apropos here. In that case a tax deed given in 1856 for the taxes of 1854 was relied upon by the defendant. The statute in force when this deed was given made the deed prima facie evidence of regularity. The tax law of 1869 had a like provision. It contained a repealing clause similar to the one contained in Act No. 11, Pub. Acts 1882. Justice Cooley, in speaking for the court, said:

“ The plaintiff claimed in the court below that by the repeal of all previous acts the rule of evidence that made the deed prima facie evidence of title was annulled, and,, as the act of 1869 only applied to proceedings had under it, the defendant was not aided by it, but was remitted to the rule that would prevail in the absence of any such statute, and must support his deed by proof of the regularity of the proceedings which culminated in it. The circuit court ruled otherwise.

‘! An examination of the statutes will show very clearly that the legislature has never designed to do away with the provisions which render these deeds prima facie evidence of title. In every instance where an amendment has been made, this feature has been retained. If the rule of evidence has'been abolished as to any of these deeds, it must be conceded that it has been done by inadvertence, as the rule itself has been a part of our State policy for a quarter of a century. This fact will not save the rule if an unquestionable repeal appears, but it may go far to explain any ambiguous or doubtful language. And we think the language of the saving clause in the act of 1869 is to be construed in the light of this State policy. The repeal was not to affect sales previously made. Now it may well be said that the repeal of a rule of evidence applicable to such sales would not affect the sales themselves; but the statute evidently meantnot the sales as such, which, indeed, could not be affected by subsequent legislation, but the rights derived from such sales; and these would be very materially affected if the deeds were to be deprived of their quality as evidence of title. And when we find this quality preserved up to the time the act of 1869 took effect, and that that act gave it to all subsequent tax conveyances, the conclusion is irresistible that it was the intention of the legislature by the proviso to the repealing clause to preserve to the holders of previous conveyances the benefit of this rule of evidence.”

See, also, Tillotson v. Saginaw Circuit Judge, 97 Mich. 585, and Harding v. Auditor General, 136 Mich. 358.

The purpose of the legislature in passing Act No. 229, Public Acts 1881, and Act No. 7, Pub. Acts 1882, was to so legislate as to secure sales of the large amount of land held as State tax lands. To acomplish this result, the price had been greatly reduced; in some contingencies the reduction amounting to more than 75 per cent, of what it had been. A deed of these lands which was prima facie evidence of title in fee would be much more valuable to a purchaser than one which did not possess that quality. It is inconceivable that, in attempting to legislate so as to secure customers for its lands, the State would deliberately take from the deeds which it gave to its customers the quality which made them valuable, and would say to the purchasers that, before they could establish a title through the deed which the State proposed to give, the customer must show affirmatively the regularity of all the proceedings which led up to the deed. If the legislature had intended to so legislate as to make it impossible for the State to sell its lands, it could not do so more effectively than by taking away from its deeds the prima facie quality they had theretofore possessed. We do not think the legislature so intended, or that by the legislation enacted it accomplished any such anomalous result.

It becomes necessary now to give some attention to the cases cited by counsel for defendant in support of their contention. It will be remembered that in the case at bar the purchase was made at private sale at the office of the auditor general. In the case of Norris v. Hall, 124 Mich. 170, the purchase was made of the county treasurer at a public sale. It will be observed in the statement of facts that the trial court found as follows:

I find that for the delinquent taxes of the years 1869 to 1880, inclusive, public sale was made May 4, 1884, under the law of 1882. The deeds executed by the auditor general upon the sale made May 4, 1884, are introduced in evidence by defendants. I find, as a matter of law, that all sales made on May 4, 1884, under the law of 1882, are invalid; that the tax deeds for the years extending from 1869 to 1880, inclusive, were made pursuant to a sale on May 4,1884, under the law of 1882; and consequently that they are invalid.”

An examination of the original record shows that this was the only finding either of fact or law made by Judge Coolidge in relation to the deed based upon the taxes of 1869 to 1880, inclusive. It is apparent the law of 1882 which Judge Coolidge had in mind was Act No. 9, and not Act No. 7, and that his conclusion was based upon the opinions in Thomas v. Collins, 58 Mich. 64; Ball v. Busch, 64 Mich. 336. These opinions held that Act No. 9, which provided for the public sale of the State tax lands, was prospective, and did not apply to sales for taxes levied before its enactment. Section 4, Act No. 7, provides for the public sale of the lands at the tax sale of 1884. At this time these sales were made in October. It is apparent that if the provisions of Act No. 9 as to the time of sale did not apply, as was held in Thomas v. Collins, supra, and Ball v. Busch, supra, that the sale should have been held in October, and not in May. It is equally apparent that a deed based upon a sale made in May, and not in October, would be, as found by Judge Ooolidge, invalid. It is apparent that a void deed would not possess any evidentiary value, and that, in affirming the action of Judge Ooolidge in so holding, it was not necessary to say, as was said in the opinion, that the deed was “inadmissible in evidence, and is ineffectual, for the reason that there was no proof of the regularity of the tax proceedings. The law under which the sale took place did not provide that deeds issued thereunder should be prima facie evidence of title.” Such a provision of law would not have helped the matter, for the deed showed upon its face that it was based upon a sale made in May, when the law required it to be made in October. A right result was undoubtedly reached in the case, but we think a wrong reason was given for it. In Ball v. Busch, 64 Mich. 336, the opinion is a short one, prepared by Justice Sherwood, who gave no reason why the deeds were invalid, but contented himself with saying: “That the several tax titles offered in evidence are clearly invalid, under our previous decisions, is clear, and the circuit judge did right in so holding;” citing a number of authorities, the last two of which are Thomas v. Collins, 58 Mich. 64, and Busch v. Nester, 62 Mich. 381. We have already referred to Thomas v. Collins. In Busch v. Nester, Justice Campbell said, “We think the State deeds are prima facie evidence of title,” but held that a purchaser did not have a right of entry on land on a mere tax certif- • icate before deed. In Busch v. Nester, 70 Mich. 525, the discussion in the opinion written by Justice Champlin related largely to other questions than the effect of the tax deeds. In relation to those the discussion is very brief. In it this language is used:

Mr. Busch testified that he submitted his tax deeds to two attorneys, and they advised him that they were valid, and, believing the advice to be correct, he took possession. He further testified as follows: ‘ I don’t think I ever claimed to be in possession of any other parcel of land there, except the W. of section 26. I just had the timber cut off from them, and that was all.’ The tax title under which he claimed the west half of section 26 was declared void in Ball v. Busch, 64 Mich. 336, which has been decided since this case was before us on the former occasion. This court said that the invalidity of the deeds appeared upon their face, and were properly rejected when offered in evidence at the trial as not being prima facie evidence of title. It is only fair to Mr. Busch, and to the attorneys with whom he advised, to say that the deeds were issued under the law of 1882, and which had been held constitutional and valid by a divided court in a case arising in Marquette county, and that the advice appears to have been based upon that decision. ”

It is apparent the law of 1882 which Justice Champlin had in mind was Act No. 9, and not Act No. 7, for it was the former which was construed in the case arising in Marquette county. A reference to the case cited by him will also show he was not quite accurate in stating what was decided. We quote from the opinion cited:

“We may properly say, in conclusion, the rejection of the deeds complained of, when offered in ■ evidence, was correct. Their invalidity appeared on the face of the instruments. 1 How. Stat. §§ 1092, 1165, do not apply to such a case. The legislature did not intend to say that a paper shall be held prima facie valid when it carries upon its face the evidence that shows it void.”

We have already shown that this court had,held that the provision of Act No. 9 for the public sale of State tax lands was prospective, and that sales made in May for taxes levied before the act took effect were void. It is apparent the question involved in the last two cases referred to was not the value of the deeds as evidence of title, but was whether they were void. In the cases we have reviewed at such length, we have endeavored to show they were held void, and for what reasons they were so held. As before stated, there is some language used in some of these opinions in conflict with the conclusion we have reached, but we do not think the decisions themselves are in conflict with it. In the opinion in Hoffman v. Loud, ante, 5, the following statement is made

“ It should not be forgotten that the land was sold to the State at least four times before the passage of Act No. 7. Its title under each of its sales when it was obtained was prima facie valid.”

The first part is a correct statement of facts. The last sentence is not a correct statement of the law, and should be overruled. The statute refers to deeds, and not to the state of the title before the deeds are issued. The other questions suggested have been considered, but we do not deem it necessary to discuss them.

Judgment is affirmed.

Carpenter, McAlvay, Grant, Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    MUSSELMAN GROCER CO. v. CASLER.
    1. Witnesses — Examination — Development of Matters Elic-' ited by Adversary.
    Where a matter is first brought out on cross-examination, it is ■proper, on re-direct, to show a full explanation, of the transaction, if relevant.
    2. Evidence—Parol Testimony to Contradict Record—Deeds.
    On the issue whether defendant owned land on January 15th, plaintiff having shown a deed from the record owner to defendant’s brother, dated December 24th, and recorded July 5th, it is proper to show that defendant was entitled to a deed December 24th, on which day one was tendered him and refused, and that subsequently, shortly before it was recorded, the name of the grantee was changed, and the deed delivered to defendant’s brother, he having taken an assignment of defendant’s rights.
    8. Fraud—Sales—False Representations to Obtain Credit— Offer to Settle.
    In an action commenced by capias to recover a debt alleged to have been fraudulently contracted, the admission, of evidence that defendant ineffectually offered to settle is error.
    4. Same—Pleading—Amendment.
    In an action commenced by capias to recover a debt claimed to have been fraudulently contracted, plaintiff alleged that defendant made false representations as to his financial condition for the purpose of obtaining credit. On trial, plaintiff sought leave to amend so as to allege that, after the making of the original representations, defendant’s financial condition changed so that he was not entitled to credit, and that defendant’s failure to notify plaintiff of this change was fraudulent. Held, that leave to amend was properly denied, the proposed amendment changing the cause of action.
    Error to Wexford; Chittenden, J.
    Submitted April 15, 1904.
    (Docket No. 67.)
    Decided October 18, 1904.
    Case by the Musselman Grocer Company against Spurgeon D. Casler for obtaining goods by false representations. Suit was begun by capias. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Smedley & Corwin (Fred C. Wetmore, of counsel), for appellant.

      J. B. Hendee (D. E. McIntyre, of counsel), for appellee.
   Moore, C. J.

This suit was commenced by capias to recover the value of upwards of $700 worth of groceries sold by plaintiff to defendant. It was the claim of plaintiff that the goods were obtained by means of false representations. The case was tried by a jury, which returned a verdict in favor of defendant. The case is brought here by writ of error.

. Among other things stated in the affidavit made by Mr. Musselman in order to obtain the writ of capias was the following’:

“Deponent further says that Spurgeon D. Caslor in the month of January, 1901, was carrying on a retail store at Farnsworth, Wexford county, Michigan, carrying general merchandise, and that said Spurgeon D. Casler desired to buy goods from said Musselman Grocer Company on credit, and that, before selling any goods to said Spurgeon D. Casler on credit, this deponent wrote said Spurgeon D. Casler for a statement in writing of his financial condition, in order that this deponent, as creditman-. for said corporation, could pass upon the advisability of shipping goods to said Spurgeon D. Casler on credit.

“Deponent further says that on the 15th day of January, 1901, he received from said Spurgeon D. Casler a written statement in regard to his financial condition, in which statement the said Spurgeon D. Casler stated that he paid $500 in cash for the store building and ground at Farnsworth, Michigan, and that he paid $550 in cash for the stock of merchandise, and that he put on said real estate $150 in repairs, and that he had $300 cash on hand.

“Deponent further says that said statement was made by said Spurgeon D. Casler for the purpose of deceiving the said Musselman Grocer Company, and obtaining goods from said corporation on credit. Deponent further says that the said statement made by said Spurgeon D. Casler to said corporation was not true, and that it was made by the said Spurgeon D. Casler for the express purpose and intent of obtaining goods from said Musselman Grocer Company. Deponent further says that the said Mussel-man Grocer Company, nor this deponent, knew nothing of said fraud until on or about the 15th day of July, 1901.

“Deponent further says: That, believing said representations so made by said Spurgeon D. Casler to said Musselman Grocer Company to be true, the said Musselman Grocer Company sold and shipped goods to the said Spurgeon D. Casler at various times on credit, amounting, in all that remains unpaid, to $719.06. * * * That said goods would not have been sold if deponent had known the representations were false. * * *

“That the said Spurgeon D. Casler is now justly indebted to the said Musselman Grocer Company the sum of $719.06 for the goods so obtained, and that the same is now due to the said Musselman Grocer Company over and above all legal set-offs. That demand has been made upon the said Spurgeon D. Casler to pay the same, and that he neglects and refuses so to do. Deponent therefore says that the said Musselman Grocer Company has a claim for damages against the said Spurgeon D. Casler in an action of trespass on the case for fraud perpetrated on the said Musselman Grocer Company, and said Musselman Grocer Company claims $1,000 damages.

“ That the statement made by said Spurgeon D. Casler to this deponent and to Musselman Grocer Company is untrue. That the said Spurgeon D. Casler did not pay $500 for his store property and real estate at Farnsworth, and did not pay any sum whatever. That the deed of said real estate was made to J. E. Casler, and not to Spurgeon D. Casler, and that said deed was made and executed on the 24th day of December, 1900, but was kept off of record until the 5th day of July, 1901, for the purpose of preventing creditors from learning in whose name said real estate was bought, and that the keeping the same from record was done for the purpose of hindering and delaying and defrauding the creditors of said Spurgeon D. Casler. That said Spurgeon D. Casler never owned said real estate, and that on the 15th day of January, 1901, at the time he wrote the letter to this deponent, as creditman for said Musselman Grocer Company, the said Spurgeon D. Casler knew that the property did not belong to him, but belonged to J. E. Casler, and that he concealed this fact from said Musselman Grocer Company and from this deponent for the purpose of deceiving the said Musselman Grocer Company and obtaining goods from it on credit.”

The averments in the declaration follow substantially the statements made in the affidavit, and conclude as follows:

‘ ‘And the plaintiff avers that by means of said statement so made as aforesaid, and which was false and fraudulent, the said defendant obtained the property of this plaintiff to the amount aforesaid, which the said defendant has neglected and refused to pay to said plaintiff, and by means of the premises the said plaintiff has lost and been deprived of its property, of the value aforesaid, to the damage of the plaintiff of $1,000.”

The defendant pleaded the general issue.

Plaintiff’s counsel discuss th,e assignments of error under the following heads:

(1) The admission of irrelevant testimony which tended to prejudice plaintiff’s case.

(2) The admission of evidence to contradict the records in the register of deeds’ office, and the refusal to strike out the evidence in regard to the deed after it was shown that the deed had been changed, after its execution and acknowledgment, without the consent of the grantor.

(3) The admission of evidence of an offer to settle, and the argument of counsel thereon.

(4) The refusal of the court to allow plaintiff to amend its declaration, and to give plaintiff’s eleventh request to charge.

(5) The charge to the jury that it was necessary for plaintiff to prove that the statements made by defendant in his letter were willfully made, and were false and fraudulent.

In disposing of the case, we will endeavor to follow the same order.

First. The testimony related to a $500 note which defendant received when he sold out, which plaintiff claims defendant agreed to send to him, but which found its way to the attorney for the defendant, and then into the hands of James E. Casler, defendant’s brother. When the brother was on the stand, it was drawn out on cross-examination that he obtained the note from his brother’s attorney; that he paid him no money for it, but was to stand behind his brother in the litigation he was having. If this testimony drawn out by plaintiff had any bearing upon the case, it was proper on the part of the witness to éxplain what there was of the transaction.

Second. It was the claim of plaintiff that when the letter of January 15, 1901, was written, the statement therein that defendant had paid O., J. La Batt $500 cash for his property was not true, and that the property at that time belonged to J. E. Casler; and, for the purpose of supporting that claim, he introduced in evidence the record of a deed in which J. E. Casler was grantee, which purported to have been made December 24, 1900, and was recorded July 5,1901. It was the claim of defendant that he bought the property from Mr. La Batt, and took from him an assignment of a land contract, and that he paid for the land upwards of $500. It is his further claim that when the deed of December 24, 1900, was made out, he was the grantee therein named, and that, because the title conveyed therein was not what he was entitled to, he declined to take the deed, and it was left with Mr. Farnsworth, the grantor, x until about the time when it was recorded; that at this time J. E. Casler had bought the property from defendant, and his name was inserted in the deed as grantee; and that when the letter was written the property belonged to defendant. As bearing upon this claim, we think the evidence was admissible.

Third. Was the admission of evidence of defendant’s offer to settle, and the comment of counsel .thereon, error ? The important question in the case, as presented by the pleadings, was whether the representations made were false, and did they lead to the giving of the credit ? There is no claim this offer to settle resulted in anything. We think it had a tendency, especially in view of the use made of it by counsel, to prejudice the case of plaintiff, but we think it not sufficiently harmful to reverse the case. See Chandler v. Allison, 10 Mich. 460; Pelton v. Schmidt, 104 Mich. 345.

Fourth. The plaintiff’ asked the court to give the following charge:

If defendant made this statement on the 15th day of January, 1901, to the Musselman Grocer Company, of his financial condition, and even if it was true at that time that he had bought and was the owner of the store building and ground where he was running his store, yet after-wards, when he became embarrassed, in the month of May, and transferred all his interests in this real estate to his brother James Casler, and he then knew that his financial condition had changed, and that he was still obtaining credit from this firm, the Musselman Grocer Company, it was his duty to notify the Musselman Grocer Company of his changed financial condition, in order that they would not be misled by his former statement, and continue to give credit to him when he was not entitled to the same. If you find that he did not notify the Mussel-man Grocer Company, or Mr. Musselman, of his changed financial condition, and of the fact that he had transferred all his ifiterest in the real estate to his brother, and continued from that time on to buy goods on credit from said firm, then I charge you, as a matter of law, that he is liable!or all the goods that he bought from this firm, and did not pay for, after turning over real estate to his brother; and the undisputed evidence in this case is that, after the assignment of the real estate to his brother, he obtained on credit from said Musselman Grocer Company goods to the amount of $429.91 which he never paid for, and for which amount the plaintiff is entitled to a verdict, if you find that the defendant, Spurgeon D. Casler, did not correctly state to them his condition relative to the real estate after his brother had obtained this assignment of the land contract. ”

The judge was of the opinion that, under the declaration, the plaintiff was not entitled to the request. When he so intimated, counsel for plaintiff said:

“ If that is the court’s ruling, then we move that we be allowed to amend the declaration to that effect. My own opinion is that it is not necessary at all, but, if that is the court’s opinion, we would ask leave to amend. We could not have done it until today, because we did not know the facts until now. Therefore we move the court now for leave to amend the declaration by inserting a count based upon the, change in the defendant’s condition—that he knew on the 4th day of May, having transferred his property to his brother, and put himself in a condition where he was not worthy of credit; that he did not inform the plaintiff, nor Mr. Musselman, the agent of the plaintiff, nor any of the agents of the plaintiff, of his changed condition, and on account of that change he was not entitled to credit, but still continued to buy, and did buy over $400 worth of goods, which he did not pay for, after the changed condition, and after the transfer of this property.”

Counsel for defendant objected upon the ground that the amendment alleged a new and different cause of action, and the judge refused to grant the amendment. It is very clear the cause of action stated in the proposed amendment was a very different cause of action from the one stated in the affidavit which is the basis of the proceeding, and different from the original declaration. We think the judge was right in holding the amendment was not permissible. See Fish v. Barbour, 43 Mich. 19; Wilkinson v. Nichols, 48 Mich. 354; Bolton v. Nitz, 88 Mich. 354; Angell v. Pruyn, 126 Mich. 16.

Judgment is affirmed.

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


text:
    PEOPLE v. BIRD.
    Intoxicating Liquors—Minors—Hospitality.
    Section 5391, 2 Comp. Laws, prohibiting furnishing liquors to minors, has reference only to acts by persons engaged in the business of liquor selling, and not to mere acts of hospitality in their homes by persons not so engaged.
    Exceptions before judgment from Ionia; Davis, J.
    Submitted April 21, 1904.
    (Docket No. 36.)
    Decided October 18, 1904.
    Calvin Bird was convicted of violating the liquor law.
    Reversed.

      A. A. Ellis, for appellant.

      William K. Clute, Prosecuting Attorney, for the people.
   Moore, C. J.

Respondent was convicted of violating the provisions of the so-called liquor law, contained in section 5391, 2 Comp. Laws. He has brought the case here by appeal.

The record upon the part of the people discloses that respondent is not a saloon keeper or druggist, but is a laboring man. At the solicitation of his wife he obtained three bottles of beer, and brought them home. The money to buy the beer was furnished by respondent’s father, William Bird. After the beer was brought to the dwelling house of respondent, the respondent, his wife, his father, and one Mattie White, who was about 16 years old, sat about a table. Mrs. Bird poured the beer out into glasses. After she had done so, respondent handed a glass of it to Miss White, who drank it. Afterwards another glass of the beer was handed to her by respondent, part of which she drank. It is also claimed that Mrs. Bird, in the presence of her husband, mixed some alcohol with water, and gave it to Miss White.

The question involved is whether this was a violation of the law. It is the claim of the people that it is not lawful for any person except a druggist to give to any minor beer, wine, or spirituous liquor. It is the claim of the respondent that the law relates to a business, and does not preclude one in exercising the hospitality of his home from giving to one of his guests beer, wine, or spirituous liquors, even though the guest is under the age of 21 years. It is stated by the prosecuting attorney that the question involved has never been passed upon by this court.

The title to the act relating to the question involved reads-:

“ An act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving, or delivering spirituous and intoxicating liquors, and malt, brewed, orfermentedliquors and vinous liquors in this State, and to repeal all acts or parts of acts inconsistent with the provisions of this act.” Act No. 313, Pub. Acts 1887.

Section 5391, 2 Comp. Laws, so far as it is material to this action, reads:

“ It shall not be lawful for any person, except a druggist, who shall be governed by section two of this act, to sell, furnish, or give any spirituous, malt, brewed, fermented, or vinous liquors, or any beverage, liquor, or liquids containing any spirituous, malt, brewed, fermented, or vinous liquors, to any minoi’, to any intoxicated person. * * * The fact of selling, giving, or furnishing any liquid in any place where intoxicating liquors are sold or kept for sale, to any minor, or to any intoxicated person, * * * shall be prima facie evidence of an intent on the part of the person so selling, giving, or furnishing such liquid, to violate the law.”

Many of the cases cited on the part of the people, like State v. Best, 108 N. C. 747, are cases where the liquor was furnished to the minors by a saloon keeper. Others are where the minor furnished the money to pay for the liquor, and do not afford much light upon the question involved here.

In one of the cases cited—Johnson v. People, 83 Ill. 431—it is said:

“It is not necessary to now determine whether a person would incur the penalty of this section by giving it as an act of hospitality at his house, as that question is not before the court.”

In Altenburg v. Commonwealth, 126 Pa. St. 602, it is said:

“The general provisions of the act of 1887 [Laws 1887, Act No. 53] relate to and are designed to regulate the sale of liquors by the various classes of venders known to the law. They are not directed against the use of such liquors by the individual citizen, and they do not interfere with his right to supply his table with them, or furnish them to his family or his guests.”

In the case of Commonwealth v. Davis, 75 Ky. 240, cited by counsel, the respondent and one Rison, a minor, contributed money to purchase whisky. The respondent procured the whisky, and gave part of it to Rison, who drank it. It was held this was a violation of the statute; the court' saying of the statute, “ The object was to make it unlawful for any person other than the father or guardian of a minor to place such liquors in his hands,” etc. It will be seen this case does not meet the one under consideration.

In Black on Intoxicating Liquors, § 407, it is said:

“ The provisions of the liquor laws being aimed at the suppression of an illicit or injurious traffic in intoxicants, it is considered that a person is not liable to indictment for furnishing liquor to a friend or guest at his private residence as an act of kindness or hospitality; ” citing several cases.

If the contention of the people is true, while a father might furnish, at his own table, for his wife and all his children who had attained the age of 21 years, wine to drink, if he gave it to a son or daughter under 21 years of age he would be liable to the penalties of the law. And if one of his guests was under 21 years of age he would also be liable. The title of the act and all its provisions should be read together. When this is done, we cannot persuade ourselves that such a case as was made against the respondent brings him within its provisions.

The conviction is reversed, and a new trial ordered.

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


text:
    PEOPLE v. ELLEN.
    Bribery—Officer—Matter Officially Cognizable.
    Where a proposition to let a contract for waterworks was one which might come before a city council for official action, the fact that the council had no authority to make the contract did not prevent the receipt of money by a councilman to influence his action on the same from constituting a violation of 3 Comp. Laws, § 11312.
    Exceptions before judgment from the superior court of Grand Rapids; Newnham, J.
    Submitted June 17, 1904.
    (Docket No. 194.)
    Decided October 18, 1904.

      Jacob P. Ellen was convicted of receiving a bribe.
    Affirmed.

      Walker & Fitzgerald, for appellant.

      William B. Brown, Prosecuting Attorney, and Charles E. Ward, Assistant Prosecuting Attorney, for the people.
   Moore, C. J.

The respondent, who was an alderman of the city of Grand Rapids, was convicted of accepting a bribe. He has brought the case here by writ of error.

We quote from the brief of his counsel:

“ There is but one question involved in this case: Was the proposed water contract as to which it is alleged the respondent was bribed ‘ a question, cause, or proceeding which might, by law, be brought before him in his official capacity’ (as alderman of the city of Grand Rapids), as required by the statute under which this prosecution is brought, and as charged in the information filed against him?”

Counsel contend the answer to this question should be in the negative.

This precise question was before us in the case of People v. Mol, 137 Mich. 692. In that case Justice Grant quoted the statute which it is claimed governs this proceeding (section 11312, 3 Comp. Laws), and held it applied to this case. As to that part of his opinion all the other Justices concurred.'

The conviction is affirmed, and the ease is remanded for further proceedings.

The other Justices concurred.


author: Montgomery, J.

text:
      In re PALMER.
    Extradition—Habeas Corpus—Power op Court.
    The court cannot, on habeas corpus to inquire into the detention of one held on a warrant of rendition in extradition proceedings, inquire into the question of petitioner’s guilt for the purpose of determining the question of flight, and the fact that the papers only show his presence in the demanding-State shortly before the commission of the crime, and not at the time or since, is not controlling.
    Certiorari to Wexford; Chittenden, J.
    Submitted July 7, 1904.
    (Calendar No. 20,591.)
    Decided October 18, 1904.
    Habeas corpus proceedings by Frank W. Palmer to obtain his release from custody under an extradition from the governor of Ohio. There was an order dismissing the writ, and petitioner brings certiorari.
    Affirmed.

      Charles A. Withey, for petitioner.

      Harvey B. Keeler, for the State of Ohio.
   Montgomery, J.

The petitioner is under arrest on a warrant of rendition issued by the governor on requisition from the governor of Ohio, accompanied by a duly authenticated copy of an indictment and an affidavit stating that petitioner is a fugitive from the justice of that State. The petitioner sued out the writ of habeas corpus before Hon. C. C. Chittenden, circuit judge, and on the refusal of Judge Chittenden to release him from custody has brought the proceedings here for review.

It is contended the papers, taken as a whole, show that no crime has been committed, and also that the petitioner is shown not to be a fugitive from justice.

Section 5278 of the Revised Statutes of the United States [U. S. Comp. Stat. 1901, p. 3597] provides that:

“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured,” etc.

There is no doubt that the papers produced before the governor of Michigan fully complied with this section. The warrant of rendition is regular.

To what extent is the action of the executive in issuing the warrant of rendition open to review ? It is to be noted that the statute confers no authority upon the courts. Such authority as we exercise must be derived from our general power to protect the individual citizen from unlawful arrest. Clearly, we may not, in the exercise of this restricted power, enter upon a trial of the alleged offender. This would put upon the demanding State a burden of two trials—the one at a-place removed from the place where the alleged offense was committed. It is to be kept in mind that in this proceeding the Federal statute governs. The State courts are not permitted to hold to bail. And we are not aided in our jurisdiction- by section 9887, 3 Comp. Laws. So, too, the decisions of courts of other States that a court may on habeas corpus go into the question of probable cause, based upon statutes governing proceedings in the several States, are without force or application in this proceeding.

The rule appears to be that the courts may look into the papers before the governor, and determine whether upon their face a crime is charged; but beyond this the court cannot go in determining the fact of the petitioner’s guilt or innocence. Hurd, Habeas Corpus, 621 et seq.; 2 Moore, Extradition, § 632 et seq. The court may inquire into the identity of the accused with the party named in the warrant of rendition, and may, it seems, inquire within certain limits into the question of flight. As the papers which were presented to the governor in this case were regular on their face, and as the identity is conceded, we can only consider the question of flight.

It would be mere evasion of the rule above stated to determine that there was no flight because there was no offense. That there is sufficient ground to charge an offense sufficiently appears from the indictment. We cannot try the question of petitioner’s guilt. The affidavits disclose that the petitioner was present at Cleveland at a date shortly before that laid in the indictment, but not at that date or since. From this it is argued that he could not have fled from Ohio after committing the offense. The time laid in the indictment is not ordinarily so vital as to exclude proof of the offense at an earlier date. The case of People v. Donald, 48 Mich. 491, relied upon by the petitioner’s counsel, was decided upon the peculiar words of the statute in this State, the prosecution under this statute being expressly differentiated from.a prosecution at common law in this regard.

Our conclusion is that the circuit judge reached the correct conclusion. The writ of certiorari is dismissed, and the petitioner remanded.

The other Justices concurred.


text:
      In re CUMMINS.
    1. Criminal Law — Indeterminate Sentence — Sentence for Definite Term.
    Under the indeterminate sentence law of 1903 (Act No. 136), a sentence for “the maximum and minimum period of five years ” is for a definite period, and improper.
    3. Same—Sentence for Definite Term—Validity—Effect.
    A definite sentence for five years for an offense for which no minimum punishment is provided is not void under the statute, but should be treated as an indeterminate sentence for the maximum period of five years and the minimum period of one year as provided by section 3 of the act.
    Habeas corpus proceedings by John Cummins to secure his release from the State prison at Jackson.
    Submitted October 4, 1904.
    (Calendar No. 20,745.)
    Writ denied October 18, 1904.

      Michael Kenny, for petitioner.

      Charles A. Blair, Attorney General ( George 8. Law, of counsel), for the people.
   Moore, C. J.

December 1, 1903, upon his plea of guilty, the petitioner was convicted of having committed the offense of larceny upon the 28th day of October, 1903. The following sentence was pronounced upon him:

“Therefore it is ordered and adjudged by the said court now here that the said John Cummins be confined in the State prison at Jackson, Michigan, at hard labor, for the maximum and minimum period of five years from and including this day.” . ,

It is the claim of the-petitioner that this sentence is in violation of the indeterminate sentence law, which took effect before the crime for which the petitioner was sentenced was committed, and that the sentence is void.

By section 1, Act No. 136, Pub. Acts 1903, it was made the duty of the circuit judge to impose an indeterminate sentence upon the petitioner. Instead of doing so, he imposed a definite sentence for a certain time. The fact that it was called “ for the maximum and minimum period of five years ” did not change the fact that it was a sentence for a definite period of time. It does not follow, however, that, because the sentence was not imposed as required by the terms of the statute, it is void.

Section 2 of Act No. 136 reads:

“ Sec. 2. If, through oversight or otherwise, any person shall be sentenced to imprisonment in the said State prisons for a definite period of time other than for life, said sentence shall not for that reason be void, but the prisoner so sentenced shall be entitled to the benefit and subject to the liabilities of this act, in the same manner and to the same extent, as if the sentence had been in the terms required in section 1 of this act: Provided, That in these cases where no minimum sentence is fixed by the court, the minimum limit of any such sentence in any case shall not be for a less period than one year, except in those instances where the minimum limit is now fixed or which may hereafter be fixed or provided for by law.”

It has been held that Act No. 136, Pub. Acts 1903, does not repeal the general statutes providing for the punishment of crimes. In re Lambrecht, 137 Mich. 450. The general statute provides that for the offense for which petitioner was convicted the penalty shall not exceed five years. It does not fix a minimum term. It follows that, under the provisions of section 2, the sentence of petitioner is to be treated as though he was sentenced for the maximum period of five years and the minimum period of one year. Giving the statute this construction, there is no reason for saying the petitioner is deprived of the right to parole until his full sentence has expired.

The application for the writ is denied.

The other J ustices concurred.


text:
    CLAPP v. TITUS.
    1. Municipal Corporations— Coun oil— Powers— Statute— Employe—Services—Order—Eepusal of President to Sion— Mandamus.
    Under the general village law (1 Comp. Laws, chap. 87, § 2769, subd. 26), providing that the council shall have authority to provide for the care, custody, and preservation of the public property, where, as the result of a conflict between the president and the council, the president had suspended the marshal, and the council, through its committee on fire and water, employed the suspended marshal, and allowed his claim for services in attending to the fire apparatus of the village, mandamus lies to compel the president to sign the orders for the amount allowed by the council; it appearing that, by reason of a fire having occurred, the apparatus was in need of the services rendered by relator, and that, without an appointment by the council, there would have been no one to care for it.
    2. Same—Mandamus—Formalities—Waiver.
    The fact that certain formalities were not observed in the presentation of an account to the common council of a village does not affect the claimant’s right to mandamus, to compel the president to sign orders therefor, where- he did not put his refusal to sign the orders on that ground.
    Certiorari to Van Buren; Carr, J.
    Submitted October 4, 1904.
    (Calendar No. 20,651.)
    Decided October 18, 1904.
    Mandamus by Willis Clapp to compel Lincoln H. Titus, president of the village of Paw Paw, to sign orders for certain sums voted to relator by the common council. There was an order denying the writ, and relator brings certiorari.
    Reversed.

      Barnard & Lewis, for relator.

      Lincoln H. Titus (William G. Howard, of counsel), for respondent.
   Moore, C. J.

This is certiorari to review the action of the circuit judge in refusing to issue a ipandamus to compel the respondent to sign two village orders voted to the relator by the village council, and countersigned by the clerk of the village.

This litigation grows out of an unfortunate difference of opinion between the respondent, who is president of the village of Paw Paw, and its village council. An ordinance of the village provides for the appointment by the president, by the consent of the council, of a village marshal and other officers, whose compensation shall be fixed by the council. It also provides for the appointment by the president, from the members of the village council, of certain committees—among them, a committee on fire and water. The president appointed this committee on fire and water. On April 12, 1904, he appointed James F. Bullard marshal, and Aaron Hathaway street commissioner. Upon the first of these appointments three of the trustees voted “No,” and three refrained from voting. Mr. Hathaway’s appointment was not consented to. At a meeting held April 18th the same appointments were sent to the council by the president, and neither one was assented to. It is not clear what actuated the council, unless it may be inferred from the opinion of the village attorney that, under the existing ordinances of the village, the duties of the street commissioner shall be performed by the marshal; and, in his opinion, one person only could be appointed to discharge the duties of the office of marshal and street • commissioner. The relator was at this time village marshal. On the 18th of April, written notice was served upon him by the, president of his removal from the office of marshal, and after that date the village was without a marshal. The village had a volunteer fire department, an engine house, a fire engine, and 1,500 to 2,000 feet of hose. After the president had removed the marshal, a motion was made at a regular meeting of the council that the relator be employed to collect electric light and other bills due the village, and care for the public property, and to perform the duties theretofore performed, by the marshal. The president refused to put the motion, and refused to entertain an appeal from his decision. After the removal of the marshal, the committee on fire and water hired the relator to look after the engine house, the fire engine, and the hose. During the time a fire occurred, at which the engine and all the fire hose was used. The relator dried the hose, and did such work as was necessary to be done. The claims for these services were presented in writing to the council, and referred to the committee on claims, which reported in favor of the allowance, and all the trustees of the village voted in favor of the allowance. By direction of the council, orders were drawn by the clerk, which he countersigned. They were presented to the president for his signature. His claim was that the council were seeking to, in effect, appoint a village marshal, and that the committee had no authority to hire Mr. Clapp, and refused to sign the orders.

It goes without saying that property like an engine house, a fire engine, and fire hose should have some care. The village of Paw Paw was organized under the general law found in chapter 87 of the Compiled Laws.

Subdivision 26, § 2769, 1 Comp. Laws, in defining the powers of the council, says it shall have authority to provide for the care, custody, and preservation of the public property of the village.” In the history of the village, an emergency had occurred, growing out of the conflict between the president of the village and the council. We have no doubt that under such circumstances the council could, temporarily at least, provide for the care of the village property. This it undertook to do, first through its committee, and then by unanimously allowing the obligation which that committee had incurred. See Portland Lumbering & Manfg. Co. v. City of East Portland, 18 Or. 21, and the cases there cited; McConoughey v. Jackson, 101 Cal. 265; Brady v. Mayor, etc., of Brooklyn, 1 Barb. 584; Hill v. City of Indianapolis, 92 Fed. 467; 1 Dillon, Municipal Corp. (4th Ed.) § 463.

The circuit judge found that certain formalities in the presentation of the account had not been'observed. The president does not, and did not put his refusal to sign the orders upon that ground. We think that feature of the case is fully covered by Kriseler v. Le Valley, 122 Mich. 576, and cases there cited.

We think the circuit judge should have granted the writ of mandamus, and it is so ordered.

The other Justices concurred.


author: Grant, J.

text:
    ASHLEY v. CALHOUN CIRCUIT JUDGE.
    Discovery — Inspection Before Trial — Documents — Subpoena Duces Tecum.
    Where suit is brought to recover the price paid a limited partnership for an option to purchase its plant, on the ground that the president and secretary thereof had no authority to make the contract, plaintiffs are not entitled to an order directing the firm to permit an inspection of its articles, bylaws, and records before trial, so as to enable plaintiffs to prove what authority its president and secretary possessed; such records being obtainable at the trial under a subpoena duces tecum.
    Mandamus by Glover J. Ashley and others to compel Joel 0. Hopkins, circuit judge of Calhoun county, to vacate an order requiring relators to produce certain books and papers.
    Submitted October 4, 1904.
    (Calendar No. 20,750.)
    Writ granted October 18, 1904.
    The relators are officers and directors of a partnership limited known as the Hibbard Food Company, Limited, and are defendants in a suit brought by one Gubbins against them to recover $1,000 paid by him to them or to the partnership upon an option to purchase the real estate and plant owned by said partnership. The case is at issue, and upon the application of the plaintiff, Gubbins, the respondent, as circuit judge, made an order that the relators produce certain records and documents belonging to said company, or sworn copies thereof, for his inspection, in order to prepare for trial. Relators now seek the writ of mandamus to compel the rescission of that order.

      B. J. Kelley, for relators.

      North & Salisbury, for respondent.
   Grant, J.

(after stating the facts). The declaration is based upon a written contract purported to be entered into between said partnership and said plaintiff. The contract is signed: “The Hibbard Food Company, Limited, by C. J. Ashley, President; F. L. Hibbard, Secretary; R. M. Gubbins.” By the contract, in consideration of $1,000 paid by the plaintiff, the partnership gave him an option to purchase the property of said partnership at any time within 15 days from the date thereof. The declaration alleges that the relators, as officers of said corporation, represented that they had authority to make said contract, but that they had no such authority, and that therefore the contract was void. Plaintiff sues to recover from them the money paid.

Obviously, it was of importance to the plaintiff to secure evidence upon the point at issue. That evidence would naturally be found by an examination of the records of the partnership. If by its articles or its by-laws the relators had no right to enter into such contract in the name of the partnership, the plaintiff, under his theory, is entitled to recover. Obviously, if they had such authority, he is not. The records are under the control of the relators. It is settled by the decisions of this court that production of books and papers will not be ordered unless their production is indispensably necessary. Neither, in the absence of any fiduciary relation between the parties, will they be ordered where they can be obtained by subpoena duces tecum. Cummer v. Kent Circuit Judge, 38 Mich. 351; Preston Nat. Bank v. Wayne Circuit Judge, 137 Mich. 152.

Plaintiff planted his suit against the defendants upon the theory that they were not authorized to make the contract. It would undoubtedly be convenient for him to know before the trial whether any such authority was given. So it would be convenient for ■ any litigant to ascertain beforehand evidence in the possession of the opposite party. That, however, is not the test. It is too apparent to require argument, that the documents required can be produced under a subpoena duces tecum, and that no long examination will be required to examine them, and obtain therefrom the necessary evidence. We think the case is ruled by the two authorities above cited.

The writ will therefore be granted.

The other Justices concurred.


author: Moore, 0. J.

text:
    GERRISH v. MUSKEGON SAVINGS BANK.
    Bailment—Safety Deposit Vault—Banks—Negligence.
    In an action of trover against a bank for the loss of valuables left for safe keeping by a depositor, who also rented a safety deposit box, evidence examined and held that the bank was a gratuitous bailee and that no such negligence on its part was shown as to require submission of the case to the jury.
    Error to Muskegon; Russell, J.
    Submitted October 4, 1904.
    (Docket No. 1.)
    Decided October 18, 1904.
    Trover by Anna E. Gerrish against the Muskegon Savings Bank. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Turner & Turner, for appellant.

      William Carpenter, for appellee.
   Moore, 0. J.

This is- an action of trover to recover the value of a quantity of jewelry and coins which were left with the defendant bank by the husband of the plaintiff and placed in its vault. Upon the close of the testimony the trial judge directed a verdict in favor of defendant. The case is brought here by writ of error.

The plaintiff was a depositor in defendant bank. Her husband was also a depositor. In addition to that, he hired from the bank a deposit box, which was kept in the vault of the bank, for the use of which he paid $3.50 a year. His version of what occurred when he left the package at the bank is as follows: He first narrated seeing his wife put the jewelry and coins into a package, and taking it to the bank.

“ I went into one of the little closets or coops they have at the bank, and got my deposit box from Mr. Rece. I tried to get that package in my box. It wouldn’t go with the other papers that I had there. I locked my deposit box, returned it to Mr. Rece, took this package around to Mr. Hammond, told him the circumstances. Mr. Hammond is the cashier of the bank. That was about the 9th of September, 1901. I told him the circumstances—that I couldn’t get it in my deposit box. Asked him would it be necessary for me to rent another deposit box or could he put that away for me? His reply was, ‘No, I will put that away safely for you, and be glad to do it.-’ * * * The next time I saw the package I should think was the last of October. I had been out of the city—myself and family. I got it from Mr. Rece. Mr. Rece is a clerk at the bank. I got this package from him. I took it home to Mrs. Gerrish. * * * I took it back to the bank because we were going away again, to leave the city, going some distance away. I delivered it to Mr. Rece during banking hours. He was there, attending to his duties in the bank. I had some conversation with him at that time. I says—I guess I called him Walter—Isays, ‘Walter, will it be necessary for me to go through the formality of seeing Mr. Hammond again about this box ? ’ He replied, ‘No;’ he would take care of it for me. He put it in the vault, I suppose. I don’t know.”

On the cross-examination he testified :

“I first hired a deposit box in 1898 in this bank. I had one at that time, I think, and for that I paid the bank $3.50 a year—for the use of the box, the privilege of using the box. At the time I took this package there, the box wasn’t filled. *1 had my private papers in it. I filled it so full that I couldn’t get this package inside it. The question I asked was whether I would have to rent another box. Of course, if I rented another box, I expected to pay for that box, and the question was with me whether I would be allowed to leave this package in the vault without paying for another box to put it in, and I wanted to know whether Mr. Hammond would allow me to leave this package in the vault without paying for the privilege, and he told me that he would, or that I could. This was the first time, in September, and I was going away from home. I lived here in the city. Had a home of my own. It was furnished by me, occupied by me and my family. I was going to close it up—-lock it up—and go away. I left the furniture and some of the fixtures there in the house, and I wanted to leave this package in the bank while I was away. * * * The reason I didn’t put it in the safety deposit box is because there wasn’t room in that box for it with the other papers. Leaving what I had in there, there wasn’t room for this package. When I left it with them I expected it would receive the same measure of protection that my box would receive, and no more. I expected it would be put in the vault the same as any other package would be put in the vault. I did not expect that they would give any more care to this package than they would give to anything else placed in the vault, and I was willing to rely upon the safety that its being left in the vault would give to it while I was away, and I preferred to rely upon that than to rely upon leaving it in my own home with my other goods. Later on I sent for my safety deposit box.”

This was the most favorable testimony for the plaintiff offered on her behalf. The testimony shows the box was put into the vault of the bank. During the winter burglars broke into the vault through its floor, which was made of iron rails, with brick arches between; some portions of the floor having but one thickness of brick four inches wide: It is the claim of plaintiff that the bank was negligent in leaving this package in a vault constructed as this one was, or at least it was a question for the jury. We quote from the brief of counsel:

“ It may have been that this jury would have said, if it had been left to them, that this defendant was negligent in putting a special deposit that they knew contained jewels and gold coin into such a vault, and that by so doing they did not use the diligence that the law requires, or that an ordinarily prudent man would use.”

The record shows that in the vault the bank had a burglar-proof safe, in which its money and commercial paper of its own and that sent for collection was kept. The safe was not large. The mortgages, some money, books, and packages belonging to the bank, as well as the deposit boxes, were left in the vault. At the time of the burglary there were in the vault boxes belonging to the president of the bank, its vice-president, the cashier, and teller, and others. The burglars took the boxes of the cashier and teller. There was no claim made by the bank to the public that the vault was burglar-proof. When the whole of the testimony of Mr. Gerrish is read, it is made clear that when he found the package would not go in his deposit box he left it with Mr. Hammond, expecting it would be placed where it was placed, and that it would receive precisely the treatment it did receive. He did not expect to pay anything because the package was left with the bank, and the bank did not expect to make any charge for such care as it might give the package. The facts establish a clear case of gratuitous bailment. And no such degree of negligence was shown, on the part of the bank as to make a case for the jury. See 3 Am. & Eng. Enc. Law (2d Ed.), p. 749; Keen v. Beckman, 66 Iowa, 672; Carlyon v. Fitzhenry, 2 Ariz. 266; Whitney v. First National Bank, 65 Vt. 154; Davis v. Gay, 141 Mass. 531; Scott v. National Bank, 72 Pa. St. 471; Story on Bailments (9th Ed.), § 23; Knights v. Piella, 111 Mich. 9; Marshall v. Railroad Co., 126 Mich. 45.

Judgment is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    THOMAS v. SOUTH HAVEN & EASTERN RAILROAD CO.
    1. Contract—Construction op Side Track—Consideration.
    Where defendant railroad company verbally agreed to construct a side track alongside plaintiff’s building if he would move it to land owned by him near defendant’s track, and repair and remodel it so as to make it suitable for a warehouse, and he did so, the expense incurred by plaintiff was a sufficient consideration to sustain the contract, though plaintiff, at the time defendant’s promise was made, did not agree to remove and remodel the building.
    2. Statute op Frauds—Contract Not to be Performed Within One Year.
    An agreement to lay a side track by plaintiff’s building, if plaintiff would repair and remodel the building, and move it to a certain point, may be performed within a year, and hence is not within the statute of frauds. (3 Comp. Laws, § 9515.)
    Error to Van Burén; Carr, J.
    Submitted October 4, 1904.
    (Docket No. 2.)
    Decided October 18, 1904.
    Assumpsit by Wesley J. Thomas against the South Haven & Eastern Railroad Company for breach of a contract to construct a side track. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Samuel H. Kelley, for appellant.

      Thomas J. Cavanaugh, for appellee.
   Carpenter, J.

Plaintiff recovered a verdict and judgment in the court below for the nonperformance by defendant of its alleged contract to construct a side track alongside of plaintiff’s warehouse. Plaintiff’s testimony tended to prove that defendant, acting through its general manager, verbally agreed to construct the side track in question if plaintiff would move to a piece of land near its track, owned by him, a large building situated remote therefrom, and repair and remodel the same so as to make it suitable for a warehouse; that he at once removed, repaired, and remodeled the building; and that defendant refused to construct the side track as agreed. Defendant denied the making of this agreement. The issue was submitted to a jury, who, as above stated, rendered a verdict in plaintiff’s favor.

We are asked to reverse this judgment on the ground that, according to plaintiff’s testimony, there was no consideration for the alleged contract. This point is not well taken. The expense incurred by the plaintiff in removing, repairing, and remodeling the building was the consideration, and it was a sufficient consideration. See Sanford v. Huxford, 32 Mich. 313; Stevens v. Corbitt, 33 Mich. 458; People v. Taylor, 2 Mich. 253.

In announcing this conclusion, we overrule defendant’s contention that this consideration was insufficient because plaintiff did not, at the time of defendant’s promise, agree to remove, repair, and remodel the building.

“It is not necessary that the consideration should exist at the time of making the promise, for, if the person to whom the promise is made should incur any loss, expense, or liability in consequence of the promise, and relying upon it, the promise thereupon becomes obligatory. Thus if A. promises B. to pay him a sum of money if he will do a particular act, and B. does the act, the promise thereupon becomes binding, although B. at the time of the promise does not engage to do the act.” People v. Taylor, supra.

See, also, Stevens v. Corbitt, supra.

The contract in suit might have been performed within one year after it was made, and therefore it is not, as defendant contends, within the terms of section 9515, subd. 1, 3 Comp. Laws, which makes void every verbal agreement “that by its terms is not to be performed in one year from the making thereof.” See Detroit, etc., R. Co. v. Forbes, 30 Mich. 165.

Nor was the verdict, in our judgment, contrary to the weight of evidence or excessive.

The judgment is affirmed, with costs.

The other Justices concurred.


text:
    JUNE v. LABADIE.
    Married Women—Borrowing for Separate Estate.
    One who lends money to a married woman individually to build a house on a lot, knowing that her money bought the lot, and supposing the title to be in her, has a right to assume that he is lending the money for her separate estate, and she cannot defend suit to recover the money on the ground that it was not for her separate estate because the lot had been deeded to her and her husband.
    Error to Wayne; Donovan, J.
    Submitted October 5, 1904.
    (Docket No. 5.)
    Decided October 18, 1904.
    Assumpsit by Mary J. June against Sophie E. Labadie and Joseph A. Labadie on a promissory note. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      A. G. Pitts, for appellant.

      John W. McGrath, for appellees.
   Grant, J.

This suit is based upon a promissory note signed by defendant Sophie, and indorsed by the defendant Joseph, her husband, and is now before us for the second time. For a more complete statement, see 132 Mich. 135. Upon the former trial the main defense was a set-off. Upon the second trial the court directed a verdict for the defendants upon the ground that the money was not borrowed for the separate estate of Sophie, but for that of her husband. Defendants gave evidence tending to show that Sophie borrowed the money from her sister to erect a house upon a lot, which lot was deeded to defendants as husband and wife, and that this fact was known to the plaintiff. Plaintiff testified that the money was loaned to Sophie individually; that she knew that Sophie’s money bought the lot; that she loaned her the money to build a house upon the lot, and supposed the title was in her. Under these circumstances plaintiff had a right to assume that she was loaning money to her sister for her separate estate. The defendants cannot, under such circumstances, defend upon the ground that it was not her individual estate. A married woman has a right to borrow money for herself. What she does with the money after she borrows it is no concern of the lender. If the lender knows that the money is borrowed for the husband, or to be used for his estate, then recovery cannot be had. Shaw v. Fortine, 98 Mich. 254; Martin v. Roberts, 30 Hun, 255; Wilder v. Richie, 117 Mass. 382. We said in Feather v. Feather's Estate, 116 Mich. 384: “She [a married woman] may borrow money if she borrows it on her own account.” A question of fact was raised which belonged to the jury, and not to the court.

Judgment reversed, and new trial ordered.

The other Justices concurred.