text:
    WESHGYL v. SCHICK.
    Adverse Possession — Cotenants.
    To make possession adverse as against a cotenant, notice of the hostile claim must be clearly brought home to him.
    Error to Berrien; Coolidge, J.
    Submitted April 7, 1897.
    Decided May 25, 1897.
    Ejectment by Frank Weshgyl against Frederick Schick and Caroline Schick. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      James O’Hara, for appellants.

      N. A. Hamilton, for appellee.
   Montgomery, J.

This is an action of ejectment, and a companion case to Beck v. Schick, 110 Mich. 665. Christof Schick died intestate, seised of the lands in question, February 21, 1875, leaving a widow, a son (the defendant Frederick), a married daughter, and a grandson, the plaintiff, who was at the time 10 years of age. The defendant continued to reside on the premises, and plaintiff remained as a member of his family until May, 1888, when he left. In January, 1896, he brought this'action to recover the undivided one-third of the land. The defense was adverse possession. It was also sought to show, by the testimony of defendant himself, that a parol gift of the land was made to him many years ago by his father. This testimony was clearly incompetent. The undisputed testimony, then, in the case, shows that the plaintiff was the owner of the undivided one-third from the death of his grandfather, and that he attained his majority in 1885. Defendant claims that he was ousted at an earlier date, by having notice brought home to him that he (defendant) claimed the entire property. The court charged the jury that the fact that the defendant himself occupied the place would not be sufficient to constitute adverse possession, and that, in case of a cotenancy, the mere holding of possession for 15 years would not be sufficient notice to a cotenant of a claim to the whole. But he further charged the jury that, if the boy was distinctly notified, — if he was notified in such shape that he must have known that his uncle (the defendant) was claiming to own the land absolutely, — his adverse possession would begin to run, and that, in order that the defendant should acquire title, there must have been 15 years’ possession after this notice was given to plaintiff, and left it to the jury to determine whether that period of 15 years had run or not. We think this instruction sufficiently favorable to defendant, and that it fairly covered the law of the case.

Some exceptions are preferred to the refusal of the court to give instructions as to the abstract nature of the plaintiff’s rights, and whether, at the common law, there was a right of inheritance. These instructions could have been no possible aid to the jury in determining the simple question involved in this case.

There was no error committed on th6 trial, and the judgment will be affirmed.

The other Justices concurred


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CLARK v. MICHIGAN CENTRAL RAILROAD CO.
    Railroad Companies — Trespassers—Liability eor Injuries.
    A railroad company is not liable for injuries to a trespasser or bare licensee resulting from his falling over a semaphore wire while crossing the right of way of the company.
    Error to Washtenaw; Kinne, J.
    Submitted April 9, 1897.
    Decided May 25, 1897.
    Case by George V. Clark against the Michigan Central Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Lehman Bros., for appellant.

      John F. Lawrence, for appellee.
   Hooker, J.

Main street, in the village of Chelsea, runs north and south, and crosses the defendant’s six tracks at an angle of about 25 degrees. The freight and passenger houses are south of the tracks; the former being a few rods west, and the latter about the same distance east, of Main street. On the north side of the railroad tracks is a driveway extending from Main street westerly, parallel with the tracks, between which and the tracks are three buildings. The first is Wood’s warehouse, and is situated but a few feet from Main street; next is Kempf’s warehouse, which stands farther west, but in close proximity to Wood’s warehouse; and a little farther west is a building called an ‘ ‘oil house. ” The driveway gives access to all of these buildings upon the north, and the track is close to them upon the south. There is a sidewalk on the west side of Main street. The first street to the north of the tracks is North street, which is parallel with the track, and it is apparent that persons living upon that street west of Main street find the distance to the business portion of the town shorter by going in a direct line across the tracks than by taking the highway running northeast to Main street, and then south; and, the station grounds being unfenced, people are in the habit of walking upon and across them at will. There is no evidence indicating an invitation or license unless it be found in the fact that the defendant has taken no steps to prevent it. The accompanying diagram will aid in understanding the situation. The line A-B C-D, between the second and third tracks (counting from the north), represents a wire which is used to operate, from the station, a semaphore, some distance off. This wire is raised some eight or ten inches from the ground, being supported at short intervals upon rollers or pulleys, and is drawn taut. Witnesses differ about the size of the wire, stating it to be from one-eighth inch -to the size of the finger. One says it is a twisted wire; others that there were' two wires. On the occasion of the injury, the plaintiff started from Kempf’s warehouse, where he had delivered some poultry, to go to Kempf’s bank to get a check for the chickens. Instead of going by the highway with his son, who drove the team, he took a more direct route across the tracks, thinking to save a little time, and was tripped by the wire, and hurt his elbow. The circuit court directed a verdict for the defendant, and the plaintiff has appealed.

Counsel for the plaintiff make the claim that the common practice of crossing the unfenced grounds of the defendant at this point for over 20 years Rad established a public easement, but they cite no authority which sustains the contention. In our opinion, the evidence does not create a suspicion of the existence of an easement. There

is nothing that indicates a license even, unless it is to be inferred from the fact that the defendant did not care to contest the right of every person whose convenience might lead him to cross the premises. Technically, such people were trespassers; but it is not to the discredit of the.defendant that it did not resort to violence or litigation to stop a practice that did it no harm. Whether these persons were trespassers or naked and gratuitous licensees (which last we do not mean to intimate) is unimportant. In neither case had they the right to expect the defendant to forego a reasonable use of its land, in which respect it stood on the same plane as a private person. Such persons may have rights of action where a wanton injury is done them, or where caused by unlawful acts, and, under some circumstances, in the running of trains, as in the following cases cited by counsel: Barry v. Railroad Co., 92 N. Y. 289 (44 Am. Rep. 377); Byrne v. Railroad Co., 104 N. Y. 362 (58 Am. Rep. 512); Taylor v. Canal Co., 113 Pa. St. 162; Nichols' Adm'r v. Railroad Co., 83 Va. 99; Swift v. Railroad Co., 123 N. Y. 645; Hooker v. Railway Co., 76 Wis. 542; Roth v. Depot Co., 13 Wash. 525. See, also, Green v. Railway Co., 110 Mich. 648. It is the general rule that one who enters the private grounds of another at the mere license of the latter does so subject to the attendant risks. See Schmidt v. Bauer, 80 Cal. 565, 5 L. R. A. 580. With the latter report of this case will be found a note citing many cases in support of the doctrine. And see 1 Thomp. Neg. 303, and Kinney v. Ousted, post. In our own State are two cases which clearly forbid a recovery: Sturgis v. Railway Co., 72 Mich. 619; O'Neil v. Railway Co., 101 Mich. 437. In the light of these cases, the defendant was'entirely without fault.

The judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    MINER v. RAYMOND.
    Estates op Decedents — Compromise with Mortgagee — Power op Administrator.
    The holder of a promissory note given by an intestate in his lifetime, and secured by a mortgage on realty, is liable to the estate for the repayment of interest moneys paid to him by the administrator out of the personal estate to induce him to defer sale under a decree of foreclosure, although the agreement was made in good faith, since an administrator has no authority to part with any portion of the estate in payment of a claim not regularly proved before the commissioners.
    Case made from Jackson; Peck, J.
    Submitted April 9, 1897.
    Decided May 25, 1897.

      Assumpsit by John W. Miner, administrator de bonis non of the estate of Isaac C. Quick, deceased, against Mahlon 'H. Raymond, to recover unauthorized payments by the former administrator. Defendant died pending the trial, and the cause was revived in the name of his executrix, Jane E. Raymond. Plaintiff had judgment on verdict directed by the court, and defendant assigns error.
    Affirmed.

      Melville McGee and Parkinson & Campbell, for appellant.

      Grove H. Wolcott, for" appellee.
   Long, C. J.

Isaac C. Quick, in his lifetime, gave defendant’s testator his promissory note for $4,000, due in two years, with interest at 6 per cent., payable annually. To secure the payment thereof, Quick and wife gave Raymond a mortgage on their farm. Afterwards Quick died intestate, and Augustus O. Quick" was appointed administrator of his estate. Raymond foreclosed his mortgage in chancery, and the decree provided for a sale at any time after the 30th day of January, 1893. In order to induce Raymond not to sell under his decree, Augustus O. Quick agreed to pay him the back interest on the note and mortgage and costs of the foreclosure suit. Raymond agreed to defer the sale at the request of Quick on his promise to pay the interest and costs, and further agreed that he would postpone the sale so long as Quick would keep the yearly interest paid, and not permit the land to run down. Out of the personal property belonging to the Quick estate and the crops raised on the real estate, Augustus O. Quick paid to Raymond, under said agreement, the sum of $631.44. This action was brought to recover back this amount.

Augustus O. Quick resigned, and filed his account. On the final hearing thereof the judge of probate determined that there remained in Quick’s hands $47.07 in money unadministered, and a few articles of personal property. The probate judge also at the hearing disallowed items of disbursements in Quick’s account to the amount of $1,338.85, which sum included the payment made to Raymond of $631.44. Afterwards John W. Miner, the appellee, was appointed administrator de bonis non of the estate of Isaac C. Quick, deceased, and prosecuted this action to recover the amount paid to Raymond by Quick. The court below held that he could maintain this action, and directed verdict for plaintiff. It is conceded that all the parties acted in good faith, that Raymond withheld his sale, and Quick retained possession, hoping to save the farm to the estate, and for that purpose entered into the agreement with Raymond, which agreement Raymond fulfilled on his part.

We think the court was not in error in directing the verdict under the facts stated. A creditor, secured or unsecured, cannot receive from the administrator any portion of the estate in payment of a claim until such claim is regularly proved. Fish v. Morse, 8 Mich. 34; Clark v. Davis, 32 Mich. 154. It appeared that commissioners on claims had been appointed, but Mr. Raymond did not present his note and mortgage for allowance as a claim against the estate. He was apparently satisfied with his mortgage security. He received the payment from Quick without any authority of law, and was liable therefor in this action.

The judgment must be affirmed.

The other Justices concurred.


text:
    CHICAGO & NORTHWESTERN RAILWAY CO. v. ELLSON.
    1. Railroad Companies — Taxation—Construction op Statutes.
    Section 47 of Act No. 206, Pub. Acts 1893, as amended by Act No. 229, Pub. Acts 1895, provides: “If any person shall neglect to pay any tax assessed to him, the township treasurer shall collect the same by seizing the personal property of such person, * * * from which seizure no property shall be exempt.” 1 How. Stat. § 2, subd, 12, provides that, in the construction of statutes, the word “persons” may extend and be applied to corporate bodies. Held, that the seizure and sale of the personal property of a railroad company to satisfy a tax assessed against its lands is thereby expressly authorized.
    2. Same — Fuel—When Subject to Levy.
    Coal belonging to a railroad company, and stored in its sheds, designed for, but not in actual use in, the peration of its locomotives, is personal property, subject to levy and sale under a tax warrant.
    Appeal from Marquette; Stone, J.
    Submitted April 13, 1897.
    Decided May 25, 1897.
    Bill by the Chicago & Northwestern Railway Company against William J. Ellson, treasurer of Onota township, Alger county, to restrain the sale of a quantity of coal under a tax warrant. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      R. C. Flannigan, for complainant.

      31. J. Sherwood, for defendant.
   Long, C. J.

This bill is filed to restrain the defendant, who' is township treasurer of the township of Onota, Alger' county, from selling a quantity of coal for a tax assessed upon certain lands of complainant. It appears by the bill that the complainant is a railroad corporation, operating a line of road for the transportation of persons and property and the mails of the United States, extending through the States of Michigan and Wisconsin to the city of Chicago, and through or into three other States. It is the owner of a quantity of lands situate in the township of Onota, Alger county. These lands were granted to the complainant company to aid in the construction of a portion of its road in Michigan, and are owned and held by the complainant in its private capacity, are not used or necessary for use in the operation of the road, and are subject to taxation. The taxes for the year 1896 upon these lands were not paid, and the defendant, by virtue of a tax warrant issued thereon, seized about 1,500 tons of coal belonging to and situate in coal sheds of complainant at the city of Ishpeming, county of Marquette, and advertised the same for sale, to satisfy the tax assessed upon the lands. It is admitted by the bill that all the proceedings for the assessment of the tax, and the proceedings of the treasurer to collect the same in the county of Marquette as a personal claim against the complainant, were regularly and legally taken; but the bill alleges that the coal levied upon was necessarily used, and was necessary for use, in the due and proper operation of the road, in the transportation of passengers and freight, and the carriage of mails, to the full performance of the duty which the complainant owed to the public as a common carrier, and to the exercise of its franchise to operate the road; that the necessities of the business of the public, both domestic and interstate, required that there be no interference with or interruption of the operations of the road that, unless the complainant could continuously use the coal, its business of transportation and carriage of the mails would be seriously interrupted, and the running of trains disarranged and confused, and the complainant greatly damaged thereby. The complainant nowhere alleges its inability to pay the tax, or sets out any grounds upon which illegality in the tax levied against its lands is alleged, but bases its whole reason for asking the interference of a court of equity to restrain defendant from enforcing the payment of the tax on the ground that the property in question is exempt from distress and sale under the tax warrant. To this bill the defendant interposed a demurrer, which, upon the hearing below, was sustained, and the bill dismissed. The complainant appeals.

The question is presented whether the purely personal property of a railroad corporation occupies a different position under the tax laws of this State from the personal property owned by an individual, and therefore whether the coal seized by the defendant is subject to seizure under his tax warrant. Counsel for complainant contends that there is no statute expressly authorizing the seizure and sale of the personal property of a railroad corporation to pay the tax due the State; that it is a question of public policy in- respect to which the sovereign power alone is authorized to deal; that it is not within the province of the courts, and they are not entitled, to specify what provision should have been made to further the collection from corporations of this character of private debts or public dues, and then to adjudicate as if the same had been made, but rather to ascertain whether the State, by unequivocal declaration of its legislature, has made provision for the collection.

We are satisfied that there is sufficient authority found within the tax laws to warrant the action of the defendant in seizing and selling this coal under his warrant. Section 47, Act No. 206, Pub. Acts 1893, as amended by Act No. 229, Pub. Acts 1895, provides:

■ “If any person shall neglect or refuse to pay any tax assessed to him, the township or city treasurer, as the case may be, shall collect the same by seizing the personal property of such person to an amount sufficient to pay such tax, fees, and charges for subsequent sale, wherever the same may be found in the county in which such treasurer resides, or in an adjoining county thereto, and, in case of assessment upon the personal property of corporations organized under the laws of this State for the purpose of engaging in maritime commerce and navigation, wherever personal property of such corporation may be found within the State; and from which seizure no property shall be exempt. He may sell the property seized to an amount sufficient to pay the taxes and all charges in the place where seized,” etc.

The word “person,” as used in this statute, must be applied to bodies corporate and politic, as well as to individuals, under subdivision 12, § 2, 1 How. Stat.

Counsel for complainant contends that this provision of the tax law means that no property of an individual shall be exempt, and that it does not cover the property of railroad corporations, as it does not specifically designate them. He bases his contention that this property cannot be taken on the ground that the rule of public policy forbids, and that the property of a railroad is an entirety, and, since a portion is not liable to seizure under execution or on a tax warrant, all of it is alike exempt, and that the complainant owes certain other duties to the public, and may be forced to perform them.

In the case of Lake Shore, etc., R. Co. v. City of Grand Rapids, 102 Mich. 374, the bill was filed for the purpose of vacating a local assessment upon the railway company’s property, on the ground that the complainant was not liable to assessment for municipal street improvements, and to enjoin the mayor from executing a deed on a sale of the premises, which was a portion of the right of way, the roadbed of complainant’s road, including a freight house on such right of way. While it was held that this property could not be sold under the provisions of the city charter for the nonpayment of local assessments, yet the assessment was held valid. The city contended in that case that the tax might be collected from the personal property of the complainant, under the amendment of 1893 to the charter. It was said in that case:

“If there were a general clause in the charter authorizing the collection from the personal property of the corporation, we could see no difficulty in enforcing the collection, as we are of the opinion that, though the lands and premises assessed cannot be sold for the tax for the reason stated, yet the assessment for the local improvement is valid.”

In Hackley v. Mack, 60 Mich. 604, the sheriff was acting under a warrant from the auditor general. It was said:

“We have no law that we have yet discovered, and certainly none has been pointed out to us, which authorizes the sheriff to levy upon the track or roadbed of a railway, even against the corporation. If any levy can be made upon the property of the company aside from such goods and chattels as may be found, seized, and taken into custody by the sheriff, it is only on the franchise of earning tolls, as provided by the corporation laws. ”

Freeman, in his work on Executions (2d Ed., § 179), speaking of the rule laid down in Plymouth R. Co. v. Colwell, 39 Pa. St. 337 (80 Am. Dec. 526), says:

“ A railroad company can no more discharge its public duties without locomotives and passenger and freight cars than it can without a franchise, a track, or a depot; and yet the existence of these great corporations, with all the property, real and personal, essential or at least highly beneficial to their successful operation, entirely exempt from execution at law, would be insufferable. So comprehensive an exemption will not now be sustained. So far as any general rule can be formulated upon the subject, it is this: That property of a corporation is not subject to execution which is not subject to voluntary transfer by the corporation. The mere right or franchise to be a corporation is never, in the absence of special statutory authority, subject to sale, whether voluntary or under execution.”

The rule laid down in Louisville, etc., R. Co. v. Boney, 117 Ind. 501, was that while the franchise and privileges of a railroad company, its lands, easements, and things essential to the existence of the corporation, or necessary to the enjoyment of its franchise, could not be sold on execution to satisfy a judgment at law against it, yet the locomotives, cars, and other personal property could be when not in actual use.

In Stevens v. Railroad Co., 31 Barb. 590, the court, in speaking of locomotives, cars, tools, machinery, etc., of the company, said:

“The property in question, then, is either personal or real property. It must, in the nature of things, be one or the other. It cannot he both, nor can it for any legal purpose be said to partake of the nature of both. * * * It has always heretofore been treated as personal property, liable to seizure and sale on execution. * * * To sell the rolling stock of a railroad would no more be a destruction of the road in legal contemplation than the sale of a farmer’s teams, stock, and farming utensils would be a destruction of his farm. In either case there may be a necessity of keeping the personal property, arising out of the pecuniary inability of the owner to replace it, and thus make the use of the other property, to which the personalty was essential, profitable. But the law regards no such necessity as this for any purpose; certainly not for the purpose of enabling a debtor to retain his property for his own emolument, and set his creditors, or any class of them, at defiance. * * * The franchise granted to a railroad company to construct and operate a railroad is undoubtedly accompanied with an implied obligation on the part of the company to construct and operate such road, and, for a failure to fulfill this obligation, the franchise may be forfeited, and the grant may be annulled by the legislature. But that the law will permit the company to hold property for its own private emolument which the labor and money of creditors nas contributed to furnish, * * * on the ground that the public is interested in the success of the company and the continuance of its operation, is a novel and, to me, a startling proposition.”

In Randall v. Elwell, 52 N. Y. 521 (11 Am. Rep. 747), it was said:

“The only remaining question is whether the cars were the personal property of the company against which the tax was levied, or a part of its real estate. If the former, no question can be made but that the collector had the right to levy on and sell them for the purpose of collecting the tax, being at the time in possession of the company against which the tax warrant was issued, irrespective of the lien or title of any other person by mortgage or otherwise. If the cars were a part of the real estate, it is equally clear that the collector had no right to levy upon or sell them. *' * * The question does not at all depend upon the length of the road, or whether the road of one company connects with that of others of the same gauge, and the companies so connecting, in the transaction of their business, are in the habit of running the cars of each over all the roads so connecting, or whether the road has no connections, and consequently, in the transaction of its ■ business, its cars do not run beyond its own track. I think no one would claim that a car of the New York Central, which, in the course of business, had been run to Chicago, was part of its real estate while there; and, if not such, I can discover no principle upon which the character of the property should be changed when it reached the Central track upon its return trip to New York. It must be borne in mind that the defendants in this case can claim no equity upon the ground that they acquired title by purchase upon the foreclosure of a mortgage given to secure the bonds of the company, as the collector’s warrant overrides all equities of third persons in the property. * * * My conclusion is that they were personal property, and, as such, were liable to be seized and sold for the collection of a tax against the company. The reasons upon which this conclusion is based will be found in Stevens v. Railroad Co., 31 Barb. 590, and in Beardsley v. Ontario Bank, Id. 619, and the authorities cited and reviewed, and a repetition here is unnecessary.”

In Williamson v. Railroad Co., 29 N. J. Eq. 311, it was said:

“Where the question has been directly presented whether the rolling stock of a railroad, included in a mortgage of its roadbed and franchises, is real or personal property, the great weight of authority is in favor of its being considered as personalty,” — citing in addition to the cases heretofore cited: Boston, etc., R. Co. v. Gilmore, 37 N. H. 410 (72 Am. Dec. 336); Coe v. Railroad Co., 10 Ohio St. 372 (75 Am. Dec. 518); City of Dubuque v. Railroad Co., 39 Iowa, 56.

The court said further: “In this State the point was directly decided hy the supreme court in State Treasurer v. Somerville, etc., R. Co., 4 Dutch. 21.”

In Union Trust Co. v. Morrison, 125 U. S. 591, at page 609, it was said:

“But it must be conceded that, until the mortgage was enforced by entry or judicial claim, the personal property of the railroad company was subject to its disposal in the ordinary course of business, and, as such, was liable to be seized and taken on execution for its debts. This is not only the common law, but the positive law of Illinois.”

In Pennock v. Coe, 23 How. 117, 131, the case presented the question whether a mortgage covered the rolling stock, and was prior to a levy of execution issued upon judgment. The court said:

“The.court might, upon any unreasonable resistance of the claim of the execution creditor, or inequitable interposition for delay, and to hinder and defeat the execution, permit a sale of the rolling stock sufficient to satisfy it.”

See, also, Sangamon, etc., R. Co. v. Morgan Co., 14 Ill. 163 (56 Am. Dec. 497); Maus v. Railroad Co., 27 Ill. 77; Priestman v. U.S., 4 Dall. 28; Midland R. Co. v. Stevenson, 130 Ind. 97; Titus v. Mabee, 25 Ill. 257; Farmers’ Loan & Trust Co. v. Railway Co., 3 Dill. 412; Union Loan & Trust Co. v. Motor Road Co., 51 Fed. 850; Cooley, Tax’n (2d Ed.), 369, 441, in which it was said:

“The rolling stock of railroads is sometimes treated as personalty, and sometimes as fixtures, under tax laws; and perhaps under some laws it may be both, — that is, it may be included in the assessment of the road as realty, but be subject to be taken as personalty on process issued for the enforcement of the tax levied. * * * What property shall be subject to distress, the statute itself will determine, and it may or may not be the same which is subject to execution on judgments.”

We cannot sustain the complainant’s contention that this coal is to be treated as a part of the entirety of this road. It is seen, under the cases cited, that it cannot be treated as a part of the realty, but is personal property, and was not in actual use at the time of the seizure. That it may have been convenient for the use of the company in the operation of its road no one. can question, but, being personalty, it is subject, under the provisions of the statute, to levy and sale for the payment of the tax owing by the company. It is true, as contended by complainant, that in the State of Wisconsin rolling stock and fuel are declared to be fixtures; but the statute of Wisconsin makes the declaration, and hence the courts have held that it is a question of public policy in that State, and do not permit rolling stock and fuel to be taken upon execution or tax warrant. In Montana the same rule is adopted, but in both States the courts have but followed the provisions of the statute. We are satisfied from an examination of adjudicated cases that the weight of authority in this country is in favor of treating rolling stock and fuel as personalty, liable to seizure on execution and tax warrant. But, aside from this, we think our statute expressly provides that a tax warrant may be levied upon such property for the payment of taxes, and that no personal property is exempt from such seizure and sale.

The judgment of the court below is affirmed.

Grant, Hooker, and Moore, JJ., concurred with Long, C. J. Montgomery, J., concurred in the result.


author: Moore, J.

text:
    MONFORTON v. DETROIT PRESSED BRICK CO.
    1. Manufacturing Companies — Dangerous Machinery — Safeguards — Duty to Provide.
    The statutory duty imposed upon manufacturers by Act No. 126, Pub. Acts 1893, §§ 11, 12, to provide certain safeguards for machinery in the discretion of the factory inspector, does not exist until the inspector has declared such safeguards necessary.
    2. Master and Servant — Uncovered Shaft — Negligence.
    No recovery can be had against an employer for the death of an employé 14 years of age, resulting from his coming in contact with an uncovered revolving shaft, where the deceased had no duties to perform with or about the shaft; and had been warned to keep away from it.
    Error to Wayne; Carpenter, J.
    Submitted April 14, 1897.
    Decided May 25, 1897.
    Case by Mary E. Monforton, administratrix of the estate of Charles Monforton, deceased, against the Detroit Pressed Brick Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. A verdict for plaintiff was vacated by the court, and judgment entered for defendant. Plaintiff brings error.
    Affirmed.

      B. T. Prentis, for appellant.

      Robert Young, for appellee.
   Moore, J.

Charles Monforton was on March 20, 1894, killed in defendant’s brick yard by an uncovered rapidly revolving shaft. This suit was brought by his mother, who had been appointed administratrix, to recover damages for his death. After the testimony was all in, the defendant requested the trial judge to direct a verdict in its favor. The court declined to do this, but upon his own motion submitted this question to the jury: “Was the uncovered shafting open to Charles Monforton’s observation during the period of about 20 days in which he was in defendant’s employ before his death?” and directed the jury to answer the question “Yes.” He then submitted the case to the jury, who returned a verdict in favor of the plaintiff; then, upon motion of the defendant, set the general verdict aside, and entered a verdict upon the special finding in favor of the defendant. Plaintiff appeals.

It is evident from an inspection of the record that the learned trial judge was in doubt whether the plaintiff had made a case or noj;, and desired to resolve that doubt before directing a verdict in favor of the defendant; that afterwards he concluded a verdict ought to have been directed in favor of the defendant, for that is the practical result of what was done by him. We shall dispose of the case as though he had directed a verdict in favor of the defendant. If there was any testimony which required the case to be submitted to the jury, the judgment should be set aside; otherwise it should stand. All of the testimony is returned with the record, from which it appears that Charles Monforton, at the time of his death, was 14 years and 8 months old. He was an intelligent boy. One of the witnesses speaks of him as a smart boy. He had never worked in a place where there was shafting or machinery until he entered the employ of defendant on the 1st day of March. The accompanying rough sketch will illustrate the situation of the brick yard.

Young Monforton was employed from March 1st to March 16th in the press room, dusting off bricks with a brush. That was all he was engaged to do at that time. There was testimony tending to show that upon the morning in question he and two other boys were employed to unload a car load of wood. The wood was taken from a car, and placed in a cart, Yivian working in the car, and Kumm driving. They started from southwest of the yard, drove east along a wagon road which runs along the

south part of the yard, then north around the east end of the shaft, and then west back to the door of the boiler room, where they unloaded the wood; returning the same way. After Vivian and Charles unloaded the wood, they went into the press room. There was testimony tending to show that Mr. Heileman, foreman of the press room, sent Charles from there to the engine room for some oil. The engineer testified that, about a half hour after Charles got through hauling the wood, he came in and said Mr. Heileman had sent him for oil; that he had come for oil before; that he did not give him the oil, so he went out,ri and the engineer thought he would come back, and he would give him the oil. He went westerly towards the press room. Soon after the engineer heard that a boy was killed. He ran at once to the shed 50 to 100 feet from the engine room, and found the boy right underneath the shaft in the shed: The shaft was about 200 feet long and 2{- or 3 inches-in diameter, and was from 12 to 16 inches from the ground. Just above where the boy was found there was a collar about an inch thick around the shaft, with a set screw which projected through the collai three-quarters of an inch or more. The boy received injuries from the effects of which he died in about an hour. The injuries were received in a shed which was originally closed at the back and ends and open at the front, and was only used for the storage of truck. Some witnesses said some of the boards were off the shed. The shed was not in the regular line of travel between the press room and the engine room. There was a sign over the entrance, “No Admittance.” There was no occasion for persons to go into the shed. No one saw thé accident, or knows how it occurred, or what motive induced young Monforton to go to the shed.

The evidence also discloses that, six or seven days before the accident, one of the workmen saw young Monforton playing with the shaft by putting his hands upon it, and by throwing boards at the shaft, and letting them fly back, and warned him of the danger. The foreman of the press room, who had been told of his playing with the shaft, warned him to keep away from it. The shaft was put up in 1890, and the foreman testified there had never been any accident there, to his knowledge, though the engineer testified that a small piece was torn out of Jiis trousers at that point when he had gone there to oil a bearing. There was testimony to the effect that some of the workmen sometimes went into the shed to eat their dinners. There is no testimony in the record that there was any occasion incident to the employment in which he was engaged that required young Monforton to go into the shed, or go near the shaft where the accident occurred. His work was all a good many feet away from it. Nor was he required to go near the shaft in going to and from his work.

It is the claim of the plaintiff that defendant is guilty of negligence because it did not protect the shaft as required by sections 11 and 12 of Act No. 126, Pub. Acts 1893. No factory inspector visited the shop until in May, when, at his suggestion, the shaft was inclosed. A law containing like provisions has so recently been considered by this court that it is not necessary to repeat what was said in that case. Borck v. Michigan Bolt & Nut Works, 111 Mich. 129.

It is the claim of plaintiff that to leave a shaft in the condition this one was in was negligence, and that the question of whether the deceased was guilty of contributory negligence should Jhave been submittted to the jury; citing a great many cases, all of which have been examined with care. Nearly all of them relate to cases where the injured party was employed in running hazardous machinery, or where he was put at work in such close proximity to dangerous machinery as to make his employment hazardous, but I do not think any of them are in point here. The boy was not employed to work with or about the shaft. His duties did not require him to go anywhere near it.. He was advanced sufficiently in years so that he ought to have known that a shaft with a collar upon it, revolving 150 times a minute, was dangerous. He was warned of the danger. There was nothing in the character of his duties that would lead , his employer to suppose that he would go near the shaft or incur any danger because of it. The accident is greatly to be regretted, but it did not occur under such circumstances as to make defendant liable.

Judgment is affirmed.

The other Justices concurred.


author: Long, O. J.

text:
    HAYNES v. CITY OF HILLSDALE.
    1. Defective Sidewalks — Evidence—Notice.
    Under a declaration charging defendant with permitting a sidewalk to become and remain rotten and out of repair, plaintiff may show that the walk had not been rebuilt or repaired for upwards of 20 years.
    2. Same — Remarks of Court — Province of Jury.
    For the court to remark in the presence of the jury, upon the trial of a suit for injuries alleged to have been sustained because of a defective sidewalk, that the fact that the walk would spring when walked upon was not, in itself, a defect which would entitle plaintiff to recover, is reversible error; the weight of such evidence being for the jury.
    3. Same — Notice.
    Evidence that other portions of the walk, built at the same time as that portion whereon the accident occurred, were out of repair, was admissible on the question of notice.
    Error to Hillsdale; Lane, J.
    Submitted April 14, 1897.
    Decided May 25, 1897.
    Case by Mary E. Haynes against the city of Hillsdale for personal injuries. From a judgment for defendant, plaintiff brings error.
    Reversed.

      W. J. Sampson and F. H. Stone, for appellant.

      Chester & Ttviss, for appellee.
   Long, O. J.

The plaintiff lived about six miles from the city of Hillsdale. She was injured on a sidewalk in the defendant city. On a trial before a jury, verdict was rendered in favor of the defendant. It appears that July 27, 1894, while the plaintiff was passing along the walk in front of the courthouse, a board in the walk broke under her weight, her foot caught under the next board, turning that over, and she fell forward, receiving severe injuries, for which suit is brought. The walk was constructed of wooden stringers, running lengthwise, with boards about six inches wide nailed crosswise. The center stringers had entirely rotted away with age, and the outside ones were but little better. The board which broke had rotted away on the underside, until but a mere shell of sound wood remained on the upper surface. The street on which the accident occurred is named “ McCollum Street.” The streets on the sides of the courthouse square are Broad and Howell streets.

The entire walk on McCollum street, from Broad to Howell street, was built in 1873; and plaintiff offered to show that it had remained without being repaired or rebuilt since that time. This walk is about six rods in length between those streets. This evidence should have been permitted. The declaration charges that the defendant permitted a section of said walk, east of and near Howell street, to become and remain out of repair, rotten, loose, and dangerous, and the boards and stringers composing the same to become and remain loose, rotten, broken, and torn up, and liable to tip up, turn over, and spring down when pedestrians were passing along and over the same. The declaration also charges notice to the city of such condition, and its knowledge of such condition. It was shown that, at the place where the accident happened, — that is, the section on McCollum street east of and near Howell street, — the walk would shake -when walked over, and, if walked over near the ends of the boards, the opposite end would fly up; that the nails were out, and would not hold in the stringers when driven in; that the walk in that section looked all right; and its real condition was ascertainable only in walking over it.

One of the aldermen of the city testified that in June, 1894, he noticed, in passing over the walk, that it would spring as though the center stringer was rotten, or something of that kind; that in the same month he, with the city marshal, examined this walk, and found it would spring when walked on. The court stated, in the presence of the jury, that “the fact that the walk would spring is not, in itself, a defect which would entitle the plaintiff to recover.” We think the court was in error in this statement, and that it was prejudicial to the plaintiff’s case. It was a question for the jury, under all the circumstances, to say whether the walk was in a reasonably safe condition for public travel. The boards’ spring-, ing up and down was some evidence of its bad condition, which, with other conditions shown, the jury had the right to consider. Fuller v. City of Jackson, 92 Mich. 207. The question also involved notice to the city of the walk’s condition. The marshal and one of the aldermen had walked over it for the purpose of inspection prior to the accident. •

The walk had been built for more than 20 years. It had remained without repair. The plaintiff attempted to show that other portions of this walk between Howell and Broad streets, built at the same time, were out of repair. This was excluded. This was error. Strudgeon v. Village of Sand Beach, 107 Mich. 496; Moore v. City of Kalamazoo, 109 Mich. 176; Will v. Village of Mendon, 108 Mich. 251.

For these errors, the judgment below must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    McRAE v. BENNETT.
    Estoppel — Representations as to Title.
    A representation by A. to B. that certain lumber is the property of C., thereby inducing B. to bring an action for conversion against O. instead of A., will not estop A. from thereafter asserting title to the lumber, upon which B. has levied under his judgment against C., where B. had no valid claim against either A. or O.
    Error to Marquette; Stone, J.
    Submitted April 15, 1897.
    Decided May 25, 1897.
    Replevin by Petér McRae against Samuel Bennett, deputy sheriff of Marquette county. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Hill & Rood, for appellant.

      George Gallup, for appellee.
   Hooker, J.

McRae owned timber, which Girard engaged to cut and manufacture into lumber. Bellaire attached it in a proceeding against Girard on a labor claim, and took judgment by default. He bid in 400 logs, said to have been worth $1,200, at execution sale, for $98. ' The logs were not taken into his possession, and Girard manufactured them into lumber. Previous to the attachment, McRae made a bill of sale absolute in form to McArthur Bros. Co. of this and other timber as security for $38,000. An effort was made to replevy this property in the name of McArthur Bros. Co. before the sale on execution, but the sale was made before it could be done. Subsequently Bellaire brought his action by attachment against McArthur Bros. Co. for the conversion of the 400 logs, which" had been manufactured by Girard into lumber, and the lumber intermingled with the lumber from other logs which McRae had assigned, as stated, to McArthur Bros. Co., and the property replevied in this case was seized by the defendant. McRae, having paid his indebtedness to McArther Bros. Co., thereby releasing the lumber from their claim, upon ascertaining that it was seized upon attachment against them for an alleged wrongful conversion, replevied it from the officer, and this is the case before us; the defendant, Bennett, having appealed from a judgment rendered against him on December 11, 1896. That McRae was the true owner of the lumber from the time it was felled to the time it was replevied seems to be clear, but counsel for the defendant attempt to justify the levy upon the ground that McArthur Bros. Co. were indebted to Bellaire, which they say the plaintiff cannot dispute, and that his levy upon this property must be treated as a levy upon McArthur Bros. Co.’s property by reason of the plaintiff’s alleged admission that it did belong to McArthur Bros. Co., inasmuch as Bellaire was thereby induced to proceed against McArthur Bros. Co., instead of McRae, for the conversion of the lumber. Some time after the attachment, Bellaire took judgment against McArthur Bros. Co., who were not served with process and did not appear, for upwards of $1,000, upon the claim that they had converted his logs.

The alleged estoppel rests on the testimony of the witness Mead, who testified as follows: “I am an attorney, and reside at Escanaba. I know the plaintiff, and was requested, by letter from- Hill & Rood, to call upon and see him.

Mr. Hill: Have you that letter with you?
“A. Yes, sir.” (Letter produced and received in evidence, and reads as follows:)
“William S. Hill, Lawyer, Marquette, Mich.
“Marquette, Mich., Sept. 2, 1895.
44 F. D. Mead, Esq.,
“Escanaba, Mich.
4 4 Dear Sir: There is a quantity of lumber at Little Lake on Northwestern road, which belongs to Peter McRae or McArthur Bros., of Canada. With this-lumber has been mixed 80,000 feet belonging to our client. We wish to make a demand upon the owners of this lumber for our lumber, and, in case of refusal, to bring trover for its value. We wish you would see McRae, and if he claims to be owner of the lumber, or to be agent of McArthur Bros., and they prove to be the owners, make a demand upon him for it in the name of Ed. Bellaire.
44 Yours truly,
“Hill & Rood.”
Witness: “Upon receipt of this letter I saw Mr. McRae on the 3d of September, and made a demand on him for this lumber, and stated, I think, the substance of that letter. He said that he declined to surrender it. He said that the lumber belonged to McArthur Bros., and that he was their agent. He declined to surrender it. He said, I believe, that Mr. Bellaire had sold or obtained a judgment against the lumber, and that the sheriff had sold it, and he had no right to do it. Then half an hour after-wards, on the same day of the interview, I wrote this letter.” , (Letter produced and received in evidence. Reads as follows:).
“Law Office of Mead & Jennings, Escanaba, Mich.
“Sept. 3, 1895.
“Hill & Rood,
“Marquette, Mich.
44Gentlemen: Your favor of Sept. 2d at hand. I have seen Peter McRae. He says that the lumber belongs to McArthur Bros.; that he is their agent. I made a demand upon him in the name of Ed. Bellaire. He says that he understands that Bellaire has a judgment against Girard, and that you sold McArthur Bros.’ lumber in satisfaction of it, and that you had no right to do so, and he declined to surrender the lumber. He says that he thinks Girard will settle your judgment, that he saw him a short time ago.
44 Very truly,
44 F. D. Mead.”

Witness, proceeding further, testified: “At the time we were talking about this lumber, he stated that the lumber Bellaire had sold belonged to McArthur Bros., and that he had sold their lumber in satisfaction of the justice’s court judgment. He stated that he thought that Girard would settle for the judgment. He had seen Girard about it. I then made a demand on him for the lumber, in accordance with your request in the matter, and he said he was agent for McArthur Bros., and this lumber belonged to them, and he declined to deliver it.”

It is plain that Bellaire had no valid claim for conversion against either McArthur Bros. Co. or McRae, because he never owned the lumber, or the logs from which it was made. Had we before us the trover case against McArthur Bros. Co. it would not be contended that Bellaire could recover, and the same would be true had the action in trover been brought against McRae. To sustain their claim, counsel for the defendant find it necessary to contend — First, that McRae cannot question the validity of the judgment against McArthur Bros. Co.; and', second, that he cannot dispute their ownership of the property replevied. Incidentally they argue that the plaintiff must recover upon the strength of his own title, and not the weakness of the defendant’s; that, as he is estopped from asserting title, he cannot recover in this case. The conversation between Mead and McRae related to Bellaire’s claim of title to this lumber. Mead testified that McRae said that Bellaire had no valid claim to the lumber, and he (McRae) should not give it up. It was admittedly in his possession. Mead says that he told McRae that the demand was made upon the claim that Bellaire owned a part of this lumber, and it is plain that whatever was said by McRae was with the understanding that the action of trover was to be brought on that basis. He knew that Bellaire had no valid claim against either himself or McArthur Bros. Co. He cannot be supposed to have anticipated that any other claim would be set up. The property was attached for a tort, and he replevied it at once. The title might have been tried in that suit, but Bellaire preferred to take a judgment on default against parties who were not served with process, and who did not own the property attached, as a matter of fact. The only shadow of validity of that judgment is cast by this alleged estoppel. In order' to prove the estoppel, Bellaire had to prove that he was proposing to bring an action of tort upon a claim totally devoid of merit. He told the plaintiff he proposed to bring trover upon a conversion of his logs, when he owned no logs, and the plaintiff knew he had none. He now has no further use for his claim, but asks that the plaintiff be not allowed to go back of the judgment against McArthur Bros. Co., and that he be estopped because he suffered him to sue McArthur instead of himself, although he had a valid claim against neither. It is not claimed that he had a right to recover against anyone, but that he did recover, and it seems to be thought that the courts should aid him to perpetrate a fraud, through an estoppel, by the application of a technical rule which is said to preclude the plaintiff from disputing the validity of Bellaire’s. judgment. The substratum of estoppel is the fraudulent character of the representation, and its effect in wronging the person who relies upon the estoppel. But here it is proposed to use it as a sword, and to perpetrate a wrong, upon the plaintiff by subjecting his property to a judgment confessedly unjust, not only against McArthur Bros. Co., the defendants therein, but as against the plaintiff himself.

We think the circuit judge did not err in directing a verdict for the plaintiff, and his judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    HENDRICK v. MINOR LUMBER CO.
    Appeal — Stipulation op Parties — Review.
    An. agreement by counsel, without action of the court, that a demurrer to a declaration, which had been overruled, should stand overruled as to an amended declaration, presents no question for review on appeal, since parties cannot stipulate causes into the Supreme Court.
    Case made from Alpena; Kelley, J.
    Submitted April 15, 1897.
    Decided May 25, 1897.
    Case by Cyrus Hendrick, administrator of the estate of William H. Hendrick, deceased, against the Minor Lumber Company, for the alleged negligent killing of plaintiff’s intestate. A demurrer to the declaration was overruled, and defendant appeals.
    Dismissed.

      Charles JR. JHJenry, for appellant.

      J. D. Turnbull, for appellee.
   Per Curiam.

There is no case set out in this record which can properly be heard. The original declaration was demurred to, which demurrer was overruled by the court below. By agreement of counsel, and without further action upon the part of the trial court, an amended declaration was filed, the demurrer to stand overruled as to that. Parties cannot stipulate causes into this court.

The appeal will be dismissed. Neither party will recover costs.


author: Montgomery, J.

text:
      In re BROMLEY’S ESTATE.
    1. Wills — Undue Influence — Attorney and Client — Presumption.
    The presumption of undue influence arising from the fact that the husband of the principal beneficiary had acted as the attorney of the testatrix in some matters of business, though not in the drawing of the will, may be rebutted by showing that she made her will after receiving independent legal advice.
    2. Same — Instructions—Burden of Proof.
    A contestant of a will cannot complain on appeal that the jury were not instructed that the proponent had the burden of overcoming the presumption of undue influence, which arose from the confidential relationship existing between the testatrix and the beneficiary, where he failed to prefer such a request.
    3. Courts — Presiding Judge — Constitutional Law.
    Act No. 152, Pub. Acts 1895, which authorizes the governor, when business has accumulated in any of the circuit courts of the State beyond the capacity of the local judge properly to dispose of it, to designate a judge of some other circuit to hold court in the former circuit temporarily, is valid under article 6, § 11, of the Constitution, providing that the circuit judges may hold courts for each other, and shall do so when required by law.
    Error to Wayne; Aldrich, J., presiding.
    Submitted April 27, 1897.
    Decided May 25, 1897.
    Nettie L. Donovan presented for probate the last will and testament of Lizzie M. Sherman Bromley, deceased, which was duly allowed, and George E. Bromley and others appealed to the circuit court. From a judgment for proponent, contestants bring error.
    Affirmed.

      J. Willard Babbitt (William B. Jackson, of counsel), for appellants.

      Washington I. Robinson, for appellee.
   Montgomery, J.

Decedent executed a will on the 24th day of December, 1889, making Nettie L. Donovan her residuary legatee. She continued to live until the 30th of September, 1895, and for some years prior to the execution of her will, and after its execution until her death, lived with Mr. and Mrs. Donovan. She was a teacher in the Cass school for many years, and was' a single woman. Judge Donovan, the husband of Nettie L. Donovan, had been her attorney in some matters of business. The sole question raised on the trial was whether the will was procured by undue influence. The circuit judge charged the jury as follows:

“Where a person devises his property to one who is acting at the time as his attorney, either in relation to the subject-matter ~of the making of the will, or generally, during that time, such devise is always carefully examined, and of itself raises a presumption of undue influence. But this is by no means a conclusive presumption, but it is one that may be overcome by evidence; and it is not necessary that that evidence shall in all cases be a positive denial of parties who are personally acquainted with the facts, but it must be such evidence as will lead the jury to believe that no undue influence was exerted. And if such evidence be found from the facts and circumstances surrounding the making of this will as will lead you to believe that the will was made by the testatrix of her own free will, uninfluenced by any other person, then the fact that Joseph W. Donovan was her attorney would not in any way invalidate the will. That should simply be taken into consideration, with all the other facts, to determine whether or not the will was, as a matter of fact, the will of the testatrix.”

We think these instructions fairly embodied the law of the case. While a bequest in favor of an attorney who draws a will is a circumstance arousing suspicion; and raises a presumption more or less strong that undue influence has been exerted, yet, as was very properly charged at the request of the contestants themselves, the presumption of the invalidity of a will made by a client to her attorney may be rebutted by showing that she made her will after receiving independent legal advice. In the present case the will was not drawn by Mr. Donovan, but was prepared in the handwriting of deceased herself, after conferring with Mr. Stellwagen. It is also true that the presumption of undue influence arising from a will being drafted by a beneficiary, or by one in confidential relations, may be overcome by showing that it was executed freely, and under circumstances which rebut the inference of undue influence; and, where the proof of execution is such as to convince the jury that the testator was not at that time under the control of the legatee, it is certainly not error to at least permit the jury to draw the inference in favor of the validity of the will from the circumstances. See Waddington v. Buzby, 45 N. J. Eq. 173 (14 Am. St. Rep. 706); Post v. Mason, 91 N. Y. 539 (43 Am. Rep. 689).

It is said that the court did not, in his charge, point out to the jury that the burden is upon Mrs. Donovan to rebut the presumption of undue influence. No request asking .this distinct instruction was preferred by contestants’ counsel, and for this reason the question is not open for consideration. Furthermore, we think the charge, as a whole, correctly indicated to the jury that the burden does rest upon the proponent to overcome the presumption that arises from the confidential relation.

One other question remains to be noticed. The case was tried before Judge Aldrich, under the authority of Act No. 152, Pub. Acts 1895, which provides that, when business is accumulated in any of the circuit courts of the State beyond the capacity of the judge or judges of such circuit to properly dispose of it, the governor may designate a judge of some other circuit to hold court temporarily. The contention is that there is no constitutional authority for this enactment. But section 11, art. 6, of the Constitution, provides, in terms, that judges of the circuit court may hold courts for each other, and shall do so when required by law. We think the statute, in so far as it authorizes the governor to designate a judge of another circuit to hold court in a circuit where the business has accumulated beyond the capacity of the judge or judges of such court to properly dispose of it, is fully authorized by the provisions of this section of the Constitution. See Toll v. Jerome, 101 Mich. 468.

We find nó error in this record, and it will be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    RHODE v. HASSLER.
    Execution — Irregular Sale — Remedy.
    A purchaser of land against which a certificate of levy has been filed may obtain relief against an irregular sale of the interest of the judgment debtor by application to the court wherein the judgment was rendered, but a bill will not lie to set aside the levy and sale as a cloud upon his title.
    Appeal from Wayne; Lillibridge, J.
    Submitted April 27, 1897.
    Decided May 25, 1897.
    Bill by George Rhode against Frank H. Hassler to remove a cloud from title. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    In October, 1891, one Mary J. Hopper owned a tract of land situated in the township of Grosse Point, Wayne county, consisting of about 27 acres, and conveyed the same to four parties, of whom one Samuel Lyons was one. They soon after recorded a plat of a portion of this land, laid out in lots. The interest of Lyons was levied upon, and certificate of levy filed April 1, 1892, he at that time owning an undivided three-eighths. On May 10, 1892, complainant took a quitclaim deed of all the lots in said plat, except one. The consideration paid to Mrs. Hopper was $6,500. $2,500 was paid in cash, and the balance of the purchase price secured by a mortgage of $4,000. January 23, 1893, the interest of Lyons in the land was sold to the defendant, Hassler, for $185, and a deed was executed January 23, 1894. On August 26, 1896, complainant filed this bill to set aside this levy and sale, and thereby remove a cloud from his title, upon the ground that Lyons’ interest was sold in the entire subdivision, and not in lots as they were platted, in violation of - section 6116, 2 How. Stat.

      William Look and Ira G. Humphrey (Edward Minock, of counsel), for complainant.

      Thomas Hislop, for defendant.
   Grant, J.

The record of the levy was notice to complainant, and it is immaterial to determine when he had actual notice of the levy and sale. His agent was present at the sale, and knew that the interest of Lyons was sold as a whole. Complainant has mistaken his remedy. He should have applied to the court wherein the judgment was rendered to set aside the sale for the alleged irregularity. Cavenaugh v. Jakeway, Walk. Ch. 344; Hoffman v. Buschman, 95 Mich. 538.

The decree dismissing the bill is affirmed, with costs.

The other Justices concurred.


text:
    EARLY v. STANDARD LIFE & ACCIDENT INSURANCE CO.
    Accident Insurance — Excepted Risks — Death by Poison.
    An exception in an accident policy-of death or injuries resulting directly or indirectly from poison extends to cases where the poison is administered through the mistake of a druggist or physician.

    Error to Wayne; Carpenter, J.
    Submitted April 27, 1897.
    Decided May 25, 1897.

      Assumpsit by Weltky A. Early against the Standard Life & Accident Insurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      George H. Prentis, for appellant.

      Keena & Lightner, for appellee,

       On the question what constitutes an accident within the meaning of an insurance policy, there is an extensive note to Fidelity & Casualty Co. v. Johnson, (Miss ) 30 L. R. A. 206.

   Long, C. J.

This action is upon a policy of insurance upon the life of Michael Early, the husband of the plaintiff. The policy was made payable to the plaintiff in case of the death of the insured. It is undisputed that the policy was to be in force from October 18, 1892, to October 18, 1893. It appears that on August 29, 1893, Michael Early, feeling slightly unwell, went into a drug store in Detroit, and asked the proprietor to give him something to relieve the pain, and the proprietor, by mistake, gave him some aqua ammonia. It burned his mouth very severely, but he lived from that time to September 13, 1893 (some 15 days), when' he died from the effects of the potion taken. Due proofs of death were made, and the defendant refused payment on the ground that the death was caused by means specially excepted in the policy. It was the contention of the plaintiff that death was caused by shock, and not by the poisonous substance. The court directed a verdict in favor of the defendant. Plaintiff brings error.

Counsel for plaintiff bases his contention upon the testimony of Dr. John J. Mulheron, who was called as a witness for plaintiff. He testified substantially that on August 29th he was called to attend the insured. He was asked:

“Q. What was his condition ?
“A. I examined him, and found him suffering from a shock, and in a very weak condition of the pulse. On examining his mouth, I found that he had taken into it some irritant poison. His throat and mouth showed the effects of something of that nature. The irritation had extended to his lips, and they were also irritated. It was a burn such as would be caused by aqua ammonia, and the shock was what we would naturally expect from an irritant poison of that nature.
‘ ‘ Q. On the 13th of September, I think, he died ?
“A. It was about that date.
“Q. From the effects of this shock?
“A. Yes; indirectly.
“Q. What, in your judgment, had he taken?
“A. Aqua ammonia.
“Q. In sufficient quantities to cause that trouble?
“A. Yes, sir.”

To state the contention of counsel for plaintiff more specifically, it is that Mr. Early did not die from poison (that is, he was not poisoned), but died from the effects of the shock; that his whole nervous system was affected by the shock which he received when he found he had taken something he should not have taken, and that it was this that caused his death some time thereafter; that the aqua ammonia burned, and this produced the shock; that aqua ammonia is not what is considered by unprofessional persons as' a poison; that his death was due to an accident, and not to poison.

The policy provides insurance “against the effect of in- ' juries to the body caused by external, violent, and accidental means, within the meaning of this policy, its agreements and conditions printed herein or bn the back hereof.” On the back of the policy it is provided that the policy is accepted subject to the following conditions:

“ This insurance does not cover * * * disablement occasioned directly or indirectly by any natural illness, bodily infirmity, disease, or disorder, unless it can be proved to be the direct result of an accidental injury sustained after this policy shall have taken effect, nor injuries of which there is no visible mark upon the body, nor death nor injury resulting wholly or partly, directly or indirectly, from any of the following acts, causes, or conditions, or when affected by any such act, cause, or condition, or under its influence. * * * From any of the following causes: Intoxication, * * * poison, cop-tact with poisonous substances,” etc.

It is admitted on the part of the defendant that Mr. Early’s death was caused by an accident (that is, that the taking of the aqua ammonia was accidental); and it is claimed, therefore, that the case is clearly within the exception to the policy which excludes from its terms death caused by accidental means resulting wholly or partly, directly or indirectly, from poison. It is further contended by counsel for defendant that the policy excepts death due to poison, without reference to how the poison causes the death, and without reference to any motive in the taking of it, or whether it is taken intentionally, voluntarily, or whether it is taken by oneself or administered by another person.

There can be no question, under the testimony in this case, that aqua ammonia is a poison. Dr. Muflieron expressly states it to be. The deceased, then, came to his death, in our opinion, by poison. It was accidentally administered, supposing it to be another substance. This could not take the case out of the exception, but rather brings it within the exception. The great weight of authority is in favor of the proposition that it is not necessary that the poison be taken with intent to produce death, in order to defeat a claim flowing from the right of membership.

In Cole v. Insurance Co., 61 Law T. N. S. 227, the policy insured against injuries caused by accidental, external, and visible means, and provided that ‘ ‘ this insurance shall not extend to death by suicide, * * * or ‘to any injury or death arising from disease, * * * or by poison,” etc. It appeared that the insured, by accident, drank a poisonous mixture or liquid in mistake for medicine which he was in the habit of taking, and shortly afterwards died from the effects. Verdict was directed for the defendant. On motion for a new trial, Mr. Justice Mathew, speaking for the court, said:

“It is true that the policy in this case was intended to provide against accidental injury, but we must not treat that as all that the policy contains. The terms of the provisos must be given their due effect.”

After reciting the proviso above quoted, the learned justice said:

“This is a clear and intelligible phrase. We are asked to insert after the word poison, ‘ unless accidentally taken or intentionally administered to the assured.’ The only case of death from poison which would then be left in which the company would not be liable is that in which the assured intentionally took poison; but that is covered by the proviso as to suicide.”

It was held that the accident came within the proviso.

In Pollock v. Mutual Accident Ass’n, 102 Pa. St. 230 (48 Am. Rep. 204), the policy insured against injuries effected through external, violent, and accidental means, provided that it should not extend to any bodily injury of which there should be no external and visible sign, or to any bodily injury caused directly or indirectly by the taking of poison. The insured, being present in a store where a salesman was offering for sale a sample of birch oil, and mistaking it for milk of birch, first tasted, then took a drink of, it, from the poisonous effects of which he died within 24 hours. It was admitted, in a case stated, that the deceased mistook the birch oil for milk of birch, which he had been in the habit of drinking; it being a harmless beverage, which closely resembled, in color, smell, and taste, birch oil. In an action by the beneficiary to recover the sum insured, it was held that the terms of the policy did not extend to that cause of death, and the judgment below was not disturbed.

In Hill v. Insurance Co., 22 Hun, 187, the policy in suit was almost in the exact form as in the present case; but the words used in the exception read, “by the taking of poison,” while the exception in the present one is “by poison” (that is, any death caused by poison). There it was held that the provision excepting from insurance a death caused “by the taking of poison” was not limited to cases of intentional self-poisoning, but included all cases in which the death was so caused. Cooke, Life Ins. § 56, lays down the same rule.

In Batchelor v. Accident Ass’n, reported in 34 Weekly Law Bulletin, page 239, published at Cincinnati, Ohio, the policy was in the exact form as in Hill v. Insurance Co., supra. The insured died from an overdose of morphine. The case in the circuit court was ruled for the defendant, and on appeal to the supreme court the judgment was affirmed.

In Paul v. Insurance Co., 112 N. Y. 472 (8 Am. St. Rep. 758), the court said:

“If the policy had said that it was not to extend to any death caused wholly or in part by gas, it would have expressed precisely what the appellant now says is meant by the present phrase, and there could have been no room for doubt or mistake. ”

We have not overlooked the cases of Healey v. Mutual Accident Ass’n, 133 Ill. 556 (23 Am. St. Rep. 637); Mutual Accident Ass’n v. Tuggle, 39 Ill. App. 509; and Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642. But in the present case the expression is, “death by poison.” We know of no case which goes to the extent of holding that such an expression in the exception contained in the policy does not avoid it.

The court below properly held that no recovery could be had in the case.

The judgment is affirmed.

The other Justices concurred.


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    KNEELAND v. AUDITOR GENERAL.
    Taxes — Sale op Lands — Withholding Deed.
    The auditor general is justified in withholding a deed of land sold for delinquent taxes under the tax law of 1893, where it appears that the taxes were paid upon a part of the land within the time prescribed by law, and he is unable to determine upon what part the taxes were so paid.

      Mandamus by Fred A. Kneeland and another to compel Koscoe D. Dix, auditor general, to issue a tax deed.
    Submitted April 27, 1897.
    Writ denied May 25, 1897.

      Tweddle & Cross and Dodge & Coveil, for relators.

      Fred A. Maynard, Attorney General, and W. TI. Foster, Prosecuting Attorney, for respondent.
   Long, C. J.

On December 4, 1895, lots 7, 8, 9, and 10, block 2, of the village (now city) of Traverse City, were sold by the county treasurer of Grand Traverse county, and bid in by the State, for delinquent taxes for the year 1893. The sale was made in pursuance of a decree of the circuit court for that county in chancery. In December, 1896, the relators purchased the State bid, and also bid in the lands for the delinquent taxes for the year 1894. The time for redemption having expired upon the sale of 1893, the relators demanded a deed of the premises from the auditor general. This being refused, the relatoi’s ask the aid of the writ of mandamus to compel the respondent to issue the deed.

The respondent, by his answer, shows that the lots were assessed for the year 1893 in four descriptions,'as follows: First, lots 7 and 8, except 17 feet of lot 8; second, 17 feet of lot 8; third, lot 9, except 40 feet, and lot 10; fourth, 40 feet of lot 9. The respondent further shows that the property was advertised and sold as follows, and the taxes being for the following amounts: First, lots 7 and 8, $98.61; second, lots 9 and 10, $107.06. It appeared that within the time required by law taxes were paid upon the 17 feet of lot 8 and upon the 40 feet of lot 9. When application was made by the relators for the deed, the auditor general discovered the fact that the several parcels of land were assessed in the several descriptions as above set forth, axxd had been sold as two descriptions as above. There was nothing upon the records by which the auditor gexxeral coxxld separate the properties, and distinguish upon what part of the lots the taxes had been paid; and hence he returns that he refused to issue the deed. The owner of the property after-wards tendered the balance of the money for the taxes, which was received by the auditor general, and the lands were discharged from the taxes. It is apparent that the auditor general could not determine upon what part or portion of those descriptions the taxes had not been paid, and consequently he could not issue a deed covering those portions only.

The writ must be denied.

The other Justices concurred.


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    FROHLICH v. GRAULICH.
    Pleading — Common Counts — Appeal from Justice’s Court— Amendments.
    Plaintiff, haying declared on the common counts alone in justice’s court, cannot amend his declaration in the circuit on appeal by adding a special count for breach of contract.
    Error to Wayne; Carpenter, J.
    Submitted April 28, 1897.
    Decided May 25, 1897.

      Assumpsit by Edward Frohlich against Clara Graulich for goods bargained and sold. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Jonathan Palmer, Jr., for appellant.

      Durbin Newton (Maybury & Lucking, of counsel), for appellee.
   Hooker, J.

The plaintiff sued the defendant, a married woman, in justice’s court, declaring on the common counts. The bill of particulars was as follows:

Toledo. Edward Frohlich Glass Co. Detroit.
Detroit, May 15, 1895.
Sold to Charles F. Graulich, Agt.:
4 P. P. 20x68
4 P. P. 17x105
3 P. P. 62x105
IP. P. 74x105 ______________________________-_____________§201 43
Filed June 21, 1895.
W. C. Harris, Clerk.

He obtained a judgment for $70. Upon the trial at circuit, the court allowed an amendment to the declaration by adding a special' count for a breach of contract in refusing to accept and pay for the items mentioned in the bill of particulars, and a verdict and judgment followed upon this theory solely. The amendment was made and evidence admitted against objection and exception by counsel for defendant. The case is within the rule stated, in the case of Loranger v. Davidson, 110 Mich. 605.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


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    DEGEN v. MANISTEE, FILER CITY & EAST LAKE RAILWAY CO.
    Contract or Employment — Insubordination—Discharge.
    The refusal of a street-railway superintendent to obey the instructions of the president of the company, to whom the management of its affairs has been intrusted, constitutes a breach of his agreement to perform such duties as might be required of him by the company, and justifies his discharge.
    Error to Manistee; McMahon, J.
    Submitted April 28, 1897.
    Decided May 25, 1897.

      Assumpsit by Nat E. Degen against the Manistee, Filer City & East Lake Railway Company for the breach of a contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      McAlvay & Grant, for appellant.

      Dovel & Smith, for appellee.
   Long, C. J.

Plaintiff entered into a written agreement with defendant on February 27,1893. The agreement was to continue at least one year from June 1st, thereafter, at the rate of $1,000 pfer year up to June 1, 1893, and after that date at the rate of $1,200 per year. It could by its terms be terminated by either party by giving 60 days’ notice. It contained the following stipulations :

“The conditions of this agreement are as follows: The party of the first part hereby agrees to enter into the employment of the party of the second part as superintendent of its lines of electric street railway in Manistee, Michigan, and perform such duties as may be required of him by said second party; hereby agreeing to give his entire time, labor, and attention to such employment.”

Mr. G. A. Hart was the president of the defendant company, and made the contract with plaintiff, signing it as president. No one gave plaintiff any orders, except Mr. Hart. Plaintiff commenced work on March 13th, and was discharged by Mr. Hart on .October 23d following. Plaintiff claims that he was illegally discharged, and brings this action to recover for the balance of the time. On the trial the court directed verdict in favor of defendant. Plaintiff brings error.

It appears that some fault was found with plaintiff by Mr. Hart at different times, in that he could not find plaintiff when he wanted him. About September 28th, plaintiff went away to the World’s Fair, with permission of defendant, and returned about October 10th. By permission of Mr. Hart, he then went to Milwaukee for a few days, to attend a street-railway convention. When he left he made arrangements for the proper management of his business, leaving the foreman at the power house in charge. During his absence, Mr. Hart assumed the management of the business. On the plaintiff’s return from Milwaukee, he found that Mr. Hart had made some changes. He had made a new arrangement on what is called the “bulletin -board,” — made changes in the schedule of the men. This the plaintiff, on his arrival, at once wiped off the board, made a new schedule, and put another man in place of a man whom Mr. Hart had put on. The next morning, when Mr. Hart came, he asked the plaintiff why he took off the man he put on. Plaintiff told him the other man was entitled to the run. On being asked if he would reinstate the man whom Mr. Hart had put on, he refused. Some altercation took place; Mr. Hart insisting that his man should go back, and the plaintiff refusing to comply with his orders. The plaintiff then said •

“ As long as you hold me responsible for the conduct of the men, I want you to understand that I will boss them. I will hire them, and I will discharge them, and not you; and, if today is the last day I am superintendent, today, at any rate, this man will not be put back to a regular run.”

He was asked again by Mr. Hart to put the man back, and refused, when Mr. Hart told him he would take charge. The court stated, in determining the case, that the plaintiff was rightfully discharged for insubordination.

There was no substantial dispute or contradiction between the plaintiff and Mr. Hart as to what took place, and what is here stated is taken from plaintiff’s own version of the affair. We are satisfied that the court below was not in error in holding, under the circumstances, that the plaintiff was properly discharged, 'and no recovery could be had. Mr. Hart was the president of the company. He had charge of all its affairs. He made the contract on behalf of the company with the plaintiff. Evidently he was the only one connected with the company who had supervision of the works. The company had intrusted to him the management, and the plaintiff had taken his orders from him up to that time, and under the contract he was “to perform such duties as maybe required of him by.said second party.” Mr. Hart was the agent of the second party, and with full power to act for it. The rule is that the neglect or refusal of an employe to obey the directions of the employer as to the manner of performing his work is a breach of the contract which justifies his discharge. Matthews v. Park Bros. & Co., 159 Pa. St. 579; Child v. Manufacturing Co., 72 Mich. 623.

The judgment is affirmed.

The other Justices concurred.


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    McDOUGALL v. LAMB.
    1. Garnishment —Defenses —Intervention of Principal Defendant.
    The principal defendant has the right, at least in the absence of objection by the garnishee, to intervene in garnishment proceedings, and urge the exemption of the garnished fund.
    2. Justices of the Peace — Return to Certiorari — What Considered.
    On certiorari to a justice of the peace, an amplification of the return, duly signed, accompanying the return proper and in no way inconsistent therewith, purporting to contain a minute of proofs offered and excluded, is entitled to.the same consideration as if incorporated in the return. .
    Error to Lapeer; Moore, J.
    Submitted April' 28, 1897.
    Decided May 25, 1897.
    Garnishment proceedings in justice’s court by Randolph A. McDougall against John J. Lamb, garnishee of William Mott. A judgment for plaintiff was reversed in the circuit court on certiorari, and plaintiff brings error.
    Affirmed.

      C. F. Gates, for appellant.

      Crane & Crane, for appellees.
   Hooker, J.

McDougall brought an action of assumpsit against Mott, and garnishee proceedings against Lamb, in justice’s court. The disclosure, duly filed, shows Lamb indebted to Mott in the sum of $60. Judgment being rendered against Mott, the garnishee, Lamb, was cited to show cause why judgment should not be rendered against him, and issue was joined between him and the plaintiff. Upon the trial of this issue, Mott, the principal defendant, asked to be allowed to introduce evidence against the claim of the plaintiff, but was not permitted to do so. Upon certiorari the circuit court reversed the judgment, and the plaintiff has brought the case to this court by writ of error.

Whether the principal defendant has a legal right to intervene, against the consent of the garnishee, in garnishment proceedings, need not be determined upon this record, as it does not appear that any objection was made by the garnishee to such showing by the prinicpal debtor as he might choose to make upon the statutory issue. We have held that it is unsafe for a garnishee to omit from his disclosure any fact known to him, or which he may have reason to believe, which would tend to show that the fund or property in his hands was not subject to garnishment. The case of Crisp v. Railway Co., 98 Mich. 648, intimates that the garnishee must see that money covered by the laborer’s exemption be not recovered from him by garnishment proceedings without the consent or estoppel of the principal defendant. In Wilson v. Bartholomew, 45 Mich. 41, it was held that a principal defendant might review garnishment proceedings upon certiorari, where his rights had been cut off without his having an opportunity for a hearing upon the claim of exemption. While this case may be thought to imply that a principal defendant is not a party in the garnishee proceedings to the extent of permitting him to be heard, there is good reason for saying that a court should allow him to assume the defense of the garnishee, and we do not wish to be understood as saying that he has not a right to make such defense. Upon this subject, see 2 Shinn on Garnishment, sections 664, 671, et seq., for a discussion of the subject, and 2 Howell’s Annotated Statutes, section 8040, which seems to pex-mit a trial of the question of the gaxmishee’s liability, which might subject him to a double liability if the principal defendant cannot be brought before the court and bound by the judgment. The learned circuit judge was of the opinion that the justice erred in not allowing the defense to be made, and his judgment reversing the case must be affirmed, unless, as counsel for the plaintiff contends, the record shows that the proof offered could not have amounted to a legal defense.

The alleged defense is that the garnishee was indebted for hay sold to him by Mott, which hay was mortgaged to one Day; that the hay was sold by Mott, by consent of the mortgagee, upon his promise to pay the money to be received therefor to the mortgagee. Counsel appears to concede that, if this was true, it was a defexxse to the extent of the mortgage lien, but he asserts that the record fails to show that the defendant sought to px-ove this, but that his claim as made is shown by the following :

“The garnishee defendant, by his attorney, stated that he had no defense. Then Mr. Crane, as attorney for William Mott, requested to have William Mott sworn, that he might show by William Mott that the money due from John J. Lamb to the said William Mott was for hay sold the said John J. Lamb by said William Mott, and that said hay was exempt property, for the x-eason that the said William Mott had the said piece of land under contract, and he needed the proceeds of said hay to pay for said land, and that, consequently, said hay was exempt, and the proceeds thereof were not subject to garnishment; and also that one William Day had a mortgage on said hay, but that said Day had consented that he sell said hay, — which tender of testimony was objected to by the plaintiff, by his said attorney, which objection was sustained by me.”

The foregoing is all that appears from the return proper, but accompanying the return, and signed by the justice, are what purport to be minutes of testimony, giving the history of the proceeding, in which the claim made by the defendant appears. These minutes are returned with the other papers. It does not appear that any motion was made to strike them from the files as no part of the return, or that they were in any other way questioned. They are not inconsistent with the return, being only more full in their statement in some respects. Upon the whole record as returned by the justice, we are of the opinion that the circuit judge was justified in reversing the judgment. His judgment is therefore affirmed.

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


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    PERKINS v. CANINE.
    Reformation of Deed — Mistake—Notice.
    A grantee, through mesne conveyances from the owner of a quarter section, of a parcel described in the deeds in the chain of title as the east half of the quarter section, is entitled to a reformation of the deeds, and a conveyance of sufficient of the land which, according to the governmental line, belongs to the west half, to make up the amount by which the east half falls short of 80 acres, where it was the original intention to convey the full 80 acres, and the own,er of the west half was aware of such intention when he purchased, and such land has for years been in the actual possession of such grantee with- ■ out objection.
    Appeal from Washtenaw; Kinne, J.
    Submitted'April 29, 1897.
    Decided May 25, 1897.

      Bill by Anna M. Perkins against Aaron H. Canine to reform a deed. From á decree for complainant, defendant appeals.
    Affirmed.
    Complainant, by warranty deed executed February 5, 1894, obtained tbe title to E. ¶ of N. W. \ section' 14, township 4 S., range 6 E. She obtained her title by mesne conveyances from one William W. Wallace, who in 1884 was also the owner of the adjoining land, described as the W. of N. W. ¶ of said section. The east half of the quarter did not contain 80 acres, but fell short about six acres. In April, 1884, Wallace contracted to .sell to one Rogers “80 acres, being the E. of N. W. \ Sec. 14, T. 4 S., R. 6 E.” Both parties understood that the governmental description did not contain 80 acres. They therefore measured from the east side' of the land west 80 rods, so as to include the amount of land to be conveyed. This made the west line of the lot conveyed six rods west of the surveyed line between the two governmental descriptions. Stakes were stuck on each side, and the line established by sighting through. Shortly after the contract was made, Wallace executed a deed to Rogers, in which the land was described by the governmental subdivision, and of course did not include the six acres of the west half. This is claimed to have been the mistake of the conveyancer, which mistake has been continued in the subsequent conveyances. Mr. Wallace, April 28, 1891, sold the west half by the governmental description, without reserving the six acres, to one Stevens, and Stevens sold by the same description to defendant March 28, 1894. No dispute arose until after defendant purchased, when he laid claim to this six acres which was included in this deed, and attempted to interfere with the possession of complainant. She thereupon filed this bill to correct her deed and compel defendant to convey the land to her. Her claim was sustained by the decree.

      A. J. Saivyer, for complainant.

      Lawrence & Butterfield, for defendant.
   Grant, J.

(after stating the facts). The defendant introduced no testimony except his deeds. We think it established by the evidence that these six acres were sold to Rogers, were intended to be included in the deed from Wallace to him, and that they were left out of the deed by mistake. Nothing occurred to call the attention of the various owners to the mistake until defendant claimed the title. For 10 years the parties had kept up a well-marked line between the’two parcels, and complainant and her grantors had cultivated the land in dispute and been in possession of it. There does not appear to have been any dispute as to the location of the line established by the governmental survey. There is evidence to show that Stevens and defendant purchased with knowledge of the claim of Rogers and his grantees, and neither denies it. Defendant paid Stevens $550 for the land, and Stevens gave him a warranty deed. When this suit was commenced, defendant notified Stevens to defend it, and •they settled by Stevens’ paying him $150. Without stating more fully the testimony, we think the decree was correct.

This is not the question of the settlement of a boundary line, within the rule in Kilgannon v. Jenkinson, 51 Mich. 240. It is a question as to a mistake in the deeds.

Decree affirmed, with costs.

The other Justices concurred.