author: CURTSTIANCY J. Campbell J.

text:
    Sylvester G. Scofield et al. v. The City of Lansing et al.

      Chancery Practice: Multifariousness. Where a great number of persons, owning distinct parcels of land fronting upon a street, join in a bill to restrain the collection of a tax on their several parcels for grading the street, all alleging the illegality of the tax as the ground for relief; and the questions, as presented by the bill, appear prima facie to depend upon the same proceedings for assessing the tax, the court can not, on demurrer to the bill, say in advance that the bill is bad for multifariousness or misjoinder. If, in the progress of the cause, the controversy be found to turn upon the legality of such proceedings, or other grounds common to all the complainants, there is no objection to the joinder, and it avoids multiplicity of suits.
    If, on the other hand, it should appear, in the progress of the cause that the multiplicity of issues, or other complications growing out of the joinder, would produce such embarrassment as to overbalance the advantages to be derived from settling the rights of the whole in one suit, it is always competent for the court, of its own motion, to dismiss the bill on this ground.

      Common Council: Delegation of poioer: Void tax. Where the charter required the Common Council of Lansing (as a condition precedent to the raising of a tax) to declare, by an entry on their minutes, what portion of the expense of a certain improvement should be assessed to the owners of premises to be benefitted thereby, and specifying the amount to be assessed, etc. Reid, that this duty could not be delegated to commissioners to perform, as the determination of those facts were vital to the levy; and that the tax so levied was void.

      Bill in chcmcw'y to remove a cloud: Tax lien. Where, by the provision of the charter, a tax is declared to be a lien upon the premises assessed, it constitutes a cloud upon the title, and may (if illegal) be removed by a bill in chancery; and this without any reference to the question whether there was personal property from which to collect it.

      Beard October 17th.

      Decided October 20th.

    Appeal iu Chancery from Ingham Circuit.
    The bill in this canse was filed to restrain the City of Lansing from collecting a tax for grading a street fronting eomplainan ts’ premises.

      The bill set forth that the complainants, fifty-nine in number, were owners' of certain real estate in the City of Lansing, lying adjacent to and fronting on Cedar street, and a road in continuation thereof; and that they petitioned to the Common Council of said city to grade a certain portion only of said street. The following proceedings of the Common Council sufficiently present the facts upon which the case was decided as to the legality of the assessment:
    On the 20th day of February, I860, as appears from the minutes of the Common Council of said city of Lansing, the following preamble and resolutions were adopted:
    “ Whereas, A majority of tlic resident property holders living on Cedar street, have petitioned the common council for the grading and side-walking of said street; and,

      Whereas, The same is deemed by the common council to be a necessary public improvement to grado. said street from the north line of lot five, block two hundred and forty-four, to the point on said street eight rods south of the south line of Kalamazoo street, and that the estimated expense of said improvement is about $¿,500, and that the property to be benefitted by such public improvement is all the property lying on or touching said street, being blocks and parts of blocks two hundred and thirty-seven, two hundred and thirty-eight, two hundred and forty, two hundred and forty-one, two hundred and forty-four, two hundred and forty-five; therefore, be it

      Resolved, That the council will cause said grading to be done, and that the necessary expense of grading said street shall be assessed as estimated, by the commissioners appointed, upon all lots or parts of lots lying on said street, or benefitted thereby, being blocks or parts of blocks two hundred and thirty-seven, two hundred and thirty-eight, two hundred and forty, two hundred and forty-one, two hundred and forty-four, and two hundred and forty-five, in the city of Lansing, according to the recorded plat thereof; and be it further

      Resolved, That the estimates and assessments for grading Michigan avenue and Cedar street shall be increased or diminished as in the opinion of the common council necessity demands or equity may require.”

      The committee of said Council also reported an order appointing commissioners to make an assessment to defray the expenses of the aforesaid public improvement, with the names of the commissioners left blank. On motion, the blanks were filled with the names of A. F. Weller, M. Hudson, and George Grove. Order passed as filed.
    May 22, 1865, A. W. Williams, chairman of the committee on streets, proposed a resolution changing the profile of the grade of said Cedar street. In this resolution the grade is referred to as “from Franklin street to a point four hundred feet south of Kalamazoo street.”
    Referring to said map, it appears that the grade, as there referred to, is some three - quarters of a mile more than that adopted by the resolution of February 20, 1865. June 5, 1865, the committee on streets reported upon bids for grading Michigan avenue and Cedar street. The bill charged that as to Cedar street the bids only covered the grade from the south line of lot five, block two hundred and forty-four, to a point eight rods south of Kalamazoo street. June 12, 1865, the Common Council of said City of Lansing passed the following resolution:

      “Resolved, That the commissioners to assess the amount of the cost of grading Cedar street from the south line of lot five, block two hundred and forty -four, to a point four hundred feet south of Kalamazoo street, be and hereby are authorized and instructed to assess the amount of the estimated expense upon the whole of the property lying on said street, the aggregate not to exceed $5,540, and said commissioners be hereby required to report said assessment by the 9th day of January.”
    On the 18th day of September, 1865, the following resolution was passed:
    “ Resolved, That in conformity to the conditions of his contract, the contractor for grading Michigan avenue and Cedar street be and is hereby authorized and instructed to proceed with the least possible delay to grade Cedar street from Mrs. Elder’s north line to a point two hundred feet south of Kalamazoo street, in accordance with the adopted profile of said street.”
    Beferring to the description given of the property assessed to Calista Elder in Exhibit “A.” hereto annexed, tbe bill showed that Mrs. Elder’s north line is the north line of lot six, block two hundred and forty-four.
    October 23, 18G5, tbe said Common Council passed the following resolutions:
    “ Resolved, That the order passed February 20, 1865, appointing four commissioners to assess a certain portion of Cedar street, be rescinded.

      Resolved, That the contractor, Mr. Shine, bo instructed to complete the grade of Cedar street, not already ordered, from Franklin street to Cedar River.

      Resolved, That the committee on streets are hereby authorized and instructed to procure a survey of Cedar street, from a point two hundred feet south of Kalamazoo street, to the south city limits.”
    Oct. 31, 1865, as appears from the minutes of said common council, Alderman A. W. Williams presented an order for the grading of Cedar street from Cedar bridge to Franklin street, and appointing D. M. Bagley, L. D. Preston, and C. Tracy as commissioners to assess the expense of tlie same. Adopted by yeas and nays.
    November 6, 1865, these .last mentioned commissioners made their report. November 22, 1865, the assessment roll presented by said commissioners, was unanimously adopted.
    The bill further charged that this assesment roll was for the sum of $2,500, and that said amount was duly collected from complainants and the other owners of lands specified in the order of October 31, hereinbefore sot forth, and paid into the city treasury.
    September 6, 1866, as appears from the minutes of said Common Council, “ Alderman Jones presented an order appointing D. M. Bagley, E. Longyear and S. W. Wrigbt, commissioners to make an assessment to defray the expense of grading Cedar street, which was adopted.”
    September 17, I860, as also appears from the said minutes, Alderman Whitney moved to amend the order appointing commissioners to defray the expense of said Cedar street, by inserting the following after the word street: “From Franklin street south to the southern terminus of said Cedar street,” and the lots and parts of lots and lands lying and fronting on the street running south from Cedar street to the south line of the city.
    Copies of the assessment rolls and maps, representing Cedar street and the adjacent property, were annexed as exhibits. The bill charged that the action of the council was illegal; that it created a cloud upon the title to their said lots, and prayed for an injunction.
    The case was heard on demurrer. The injunction previously allowed was dissolved, and the bill was dismissed.

      S. F. Seager, and J. W. Longyear, for appellants.
    1. The action of the Common Council was clearly irregular and unauthorized in making the assessment.

      a. No estimate of the expense of the proposed improvement was ever made.

      i. There was no determination as to whether the whole or any portion of the expense should be assessed on the owners or occupants of lands benefitted by the improvements.

      c. There was no designation of the portion of the city that would be benefitted.
    The assessment made under the resolution of February 20, I860, was collected in full. The present assessment rests on the resolutions of September 10, 1866, and September 17, 1866, which are not in compliance with §§ 9, 10, Sess. L. I860, p. 44.8, in a single particular.

      2. The treasurer having returned the assessment roll, and the amounts assessed to the complainants having been placed on the general tax - roll of the several city wards, and the warrants of the supervisors attached to the rolls, the taxes constitute a cloud on title. — Sess. L. 1865, p. 451.

    3. This court has virtually held by a uniform train of decisions that complainants’ proper remedy is by injunction.
    In Palmer v. Rich, 12 Mich. 417, approved in Grundy’s case, 13 Id. 341, equity jurisdiction in case of cloud on title arising from illegal tax is expressly affirmed.
    4. The bill is not. multifarious fot misjoinder of parties.
    The objection will not be entertained when the justice of the case does not absolutely require it.
    The interest of the parties is a common one. “The object of the bill is to avoid the payment of the assessment in question, and every individual assessed has, in that respect, a common interest. — 2 Sim. & Stuart, 67; 1 M. and C. 623, and the cases cited.

    To dismiss the bill on this ground must give rise to great multiplicity of suits, as each complainant would be driven to a separate action at law.

      S. L. KiTbourne, and A. E. Cowles, for defendant.
    The bill is multifarious. Fifty-nine complainants, owning, or claiming to own, fifty-nine separate, distinct parcels of land, not in common, but severalty, have joined together fifty-nine separate causes of action to be passed upon by the court in one comprehensive suit.— Story’s Eq. PL. §§ 270, 289, 530, 540, and notes; Daniells’ Ch. Pl. and Prac. 34-2, and notes; 1 Barb. Ch. Prac. 40; 2 Mason, 181, 200; 6 Johns. Ch. 163; 1 Green’s Ch. 294; 5 Paige, 65; 6 Id. 22; 2 Sandf Ch. 344; 1 Sim. and Stuart, 108; 2 Sims. 331; 5 Id. 670; 11 Id. 21; 7 Id. 471; 4 Blackf. 249.

    2. On grounds of public policy, equity will not interfere to restrain the collection of a tax authorized by law, levied by officers de jure or de facto, where the power to levy a tax is an incident to their office, although irregularities in the levy and collection may have occurred; but will leave the parties to seek their remedy at law; the facts not bringing the case within airy acknowledged head of equity jurisdiction.— 22 Ill. 303; 17 Ia. 379, 386; 18 Wis. 249; 23 N. Y. 316; 25 Id. 312; 6 Metc. 425; 12 Peters, 91; 50 Barb. 60; 22 Ill. 34, 594.

    Irreparable damage is not imminent.
    Although the tax be void, equity will not interfere; the legal remedy in such cases is adequate. — 25 Conn. 232; 25 Ill. 43, 47; 1 Ia. 593; 3 G. Green, Ia. 307; 27 Penn. St. 371; 30 Id. 227; 26 Wend. 13.

   CURTSTIANCY J.

The bill in this case is filed against the ■ City of Lansing, and Lewis C. Loomis, their treasurer and collector, by fifty - nine separate owners of real estate situate adjacent to, and fronting on Cedar street, and the road in continuation thereof, in said city, to restrain the collection of a tax upon the lands of the several complainants along said street, for grading the same: the tax being charged to be illegal, and to constitute a cloud upon the titles of complainants.

The defendants demurred to the bill, and the demurrer was sustained in the court below.

The first ground urged in support of the demurrer is misjoinder of complainants, or multifariousness; they having no joint or common interest in the lands assessed.

There is great conflict in the.authorities upon this question, and a review of them would require a treatise. But in view of all the authorities, we do not understand that there is any general or inflexible rule on the subject, so far at least as relates to the joinder of parties complainant. So far as any rule can be said to exist, it is one of convenience only, and must depend for its application upon the circumstances of each particular ease. — Story’s Eg. PI. §530; Adams Eq. 309, 310; Campbell v. Mackay, 1 Mylne and Craig, 603.

In. Kensington v. White, 3 Price, 164, seventy-two different underwriters, upon different policies of insurance, upon which complainants had been severally sued at law for their respective subscriptions, had joined in one bill, the object of which was to establish a defense which was common to all; the bill was sustained as not multifarious.

■ In Murray v. Hay, 1 Barb. Ch. 59, the bill was filed by two persons owning in severalty two dwelling houses, with no common interest in the property, against a defendant for a nuisance, which was a common injury to both, rendering the property of each less valuable. The bill was objected to as multifarious, but sustained by the court. And in Reid et al. v. Gifford, 1 Hopkins, 416, the bill was held not liable to this objection, though filed by several proprietors of several lands and mills, and of several parts of a natural water course to restrain a nuisance caused by an artificial channel cut by the defendant on his.own land, the effect of which was to draw off the water. This was held such common injury to all the complainants, as to authorize them to join in one bill, though the injury sustained by each was separate and distinct.

The principle involved in these cases can not be distinguished from that in the case before us. . While the property or pecuniary interests of the complainants were several, yet the action of the defendants, of which the bill complained and for which relief was sought, was identical as to all the complainants. So in the present case, though the interests of complainants, in the real estate upon which the tax is assessed, is several and distinct, yet the action of the defendants, the proceedings on their part from beginning to end, are identical as to all the complainants, and affect them all in the same manner. Their claims are entirely consistent with each other. — Adams Eq. 313.

In such a case, the objection (if any can be recognized on the part of the defendants) for misjoinder of complainants, must rest upon very different grounds from a like objection for misjoinder of defendants having separate and distinct interests, and whose cases are unconnected with each other. In the latter case each defendant may well object to being involved in the contests or litigations of other parties, involving transactions with which he has no connection or concern.

But in the present case there is no such ground of objection on the part of the defendants, for their action, against which relief is sought, has been the same as to all the complainants, and the defendants have the same connection and concern with the whole subject of complaint as to each.

Bach complainant must, under the present bill, make out the same case, and no other, that he would have been bound to make upon a bill filed by him separately; and the same defense as to each complainant is open to the defendants, as if separate bills had been brought by each. It is therefore difficult to see in advance how the defendants can be embarrassed in their defense by the joinder of the complainants. And if they can offer no stronger objection to this bill than that fifty-nine separate suits should have been brought against them, instead of one, the bill ought to be sustained on the ground of preventing multiplicity of suits, and a needless multiplication of costs.

The substance of the complaint in the bill is the illegal imposition of the tax; and, if illegal as to one, it is equally so as to the other complainants; if valid as to one, it will be valid as to all. The proceedings, therefore, for the imposition of the tax will, in all probability, constitute the principal subject of litigation, and this is the same as to all.

It is true the title of each complainant may be disputed, and they may each be put to the proof. If any one of them should then fail in making out his title, the bill would be dismissed as to him.

If, in the progress of the cause, it should become evident that such embarrassments must arise in consequence of the multiplicity of issues, or other complications growing-out of the joinder of all these complainants, as to overbalance the advantages to be derived from settling the rights of all in one suit, instead of separate suits by each, it is always competent for the court (if no mode of severance can he devised) to dismiss the bill on this account of their own motion.— Greenwood v. Churchill, 1 M. and, K. 546.

But we can not say, a priori, that any such practical difficulty is likely to arise from the joinder of the complainants. Indeed, we think such a result highly improbable. We can not, therefore, sustain the objection on demurrer.

The only remaining question is, whether, upon the facts stated in the bill, the action of the defendants, in assessing the tax, has been, illegal, and has resulted in casting a cloud upon the title of the complainants.

Now, without setting forth here in detail the various orders and amendments in reference to the grading of Cedar street, prior to September 6, 1866, it is sufficient to say that those prior orders, and the whole previous action of the council, whether valid or not, had-expended their force upon the tax assessed in November, 18C5, which was collected and paid, and the powers and functions of the commissioners appointed under the former orders had ceased and terminated.

The tax here in question, purporting to be based upon the resolution of the council of September 6, 1866, and the amendment of September 17, 1866, was a new and independent tax, extending over a different area from the prior taxes assessed under the former resolutions, and in no way connected with or supported by them. And as a condition precedent to the power of the council to order the raising of this tax, or to authorize commissioners to assess it, it was necessary, at least (saying nothing of the prior declaration required by section 9, to be entered on their minutes) that after ascertaining the estimated expense of such improvement, they should “declare, by an entry in their minutes, whether the whole, or what portion thereof, should be assessed to such owners and occupants of houses and lands to be benefitted thereby, specifying the sum to be assessed, and the portion of the city which they deemed to be benefitted by the improvement.” The whole smn to be raised and the portion to be assessed upon the property benefitted, could only be determined by the Council. The power to determine these matters could not be delegated to the commissioners. Their determination of these points was vital to the validity of the tax, without which no authority existed to assess it. This action was entirely omitted.

There was also an entire failure to comply with the provisions of the tenth section. The order to the commissioners (to say nothing of the other matters required to be inserted in it) should have directed the commissioners to make the assessment “upon all the owners and occupants of lands and houses within the portion or part so designated, of the amount of expense in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by making such improvement.”

No such order was made or. certified by the clerk as required. And no presumption, therefore, can be made that the assessments were made with any reference to the benefits or advantages to arise from the improvement.

These defects are not mere irregularities; but show a total failure to acquire the power or jurisdiction to assess this tax.

The tax was therefore clearly void and illegal; and the only remaining question is whether it constituted a cloud upon the title.

The tax roll having been delivered to the treasurer for collection, it will be seen that the tax is declared by the 17th section of the charter to be a lien upon the premises upon which the same was assessed. This lien, we thinlc, constitutes a cloud upon the title, which complainants are entitled to have removed in this proceeding; and this, without any reference to the question whether they had personal property from which the tax might have been made by levy and sale. We do not think it a sufficient answer to the relief asked, to say to the complainants that they might get rid of this cloud upon their title by paying the unauthorized and illegal exaction which creates the cloud. And though the lands can not be sold for the tax until returned unpaid, and the amount re-assessed by the alderman of the proper ward — Section 17 — yet the lien remains; and the taxes are to be returned and the premises sold or forfeited for non-payment thereof, as provided by law, for the nonpayment of ordinary city taxes — that is to say, they are to be sold by the Auditor General, and deeds given which are to be prima facie evidence of the regularity of all the proceedings, and of title in the purchaser. — See Palmer v. Rich, 12 Mich. 414.

The decree of the court below, dismissing the bill, must, therefore, be reversed, with costs, and the demurrer must be overruled, and the record remitted to the court below for further proceedings.

Cooley Oh. J. and Graves J. concurred.

Campbell J.

While I do not feel sure that the principle on which bills of peace to settle numerous identical rights, aggrieved by the same act, would have originally reached a case like the present, the practice is convenient, and I concur with my brethren in sustaining this bill and in giving relief. The rule can not apply where distinct issues of fact are presented, and whenever such a case arises it would render the suit multifarious, and bring it within the principle of Kerr v. Lansing, decided at the last April term. But where no issue is made, except upon the legality of the acts complained of, and the case is so presented as to enable the court to do complete justice, one suit is probably as available as a greater number.


source: Caselaw Access Project

author: Graves J. Cooley Ch. J. Campbell J.

license: Public Domain

text:
    James W. Romeyn v. James Caplis.

      Final order: Appeal: Injunction. An order of court, adjudging a party guilty of a contempt, and imposing a fine and costs for violating an injunction, commanding him not to make any conveyance of, or creating any lien upon certain premises, is a final order, and appealable.

      Specific performance: Injunction: Contempt. A bill was filed by complainant for a specific performance of a contract for certain lands, the legal title to which, subject to said contract, was in one Lyell, and who had executed a deed for said premises, leaving the name of the grantee in blank, and sent the same to his agent, who filled in the name of a purchaser.
    Defendants were enjoined from making any conveyance of, or creating any lien upon, the said premises, or in any way changing the apparent title.
    One of the defendants, subsequent to the service of the injunction obtained from said Lyell a deed confirming the previous one.
    Whether this was a violation of the injunction: queere; the court being equally divided; Campbell and Graves J. J. holding the affirmative, and Cooley Ch. J. and Ciiristiancy J. the negative.

      Heard October 15th.

      Decided October 24th.

    Appeal in Chancery from Wayne Circuit.
    The bill in this cause was filed to enforce the specific performance of a contract for the purchase of certain real estate in the City of Detroit.
    An injunction was issued, forbidding defendants from “making any conveyance of, or creating any lien upon said premises, or in any way making any change in the apparent title of the same.”
    One of the defendants was adjudged guilty of violating the injunction, and an appeal was taken from this order.
    The facts are stated in the opinion.

      D. G. Rolbroolc, for defendant and appellant.
    It is claimed that the appellant is guilty of altering the apparent title to the property in question, by obtaining a second deed to cure errors in a prior one.
    If the first deed was valid, the apparent title was the real title, and the procuring a like second deed was not altering or changing any title.
    And the appellant contends that the insertion of the name of a grantee before delivery under the (to say the least) implied authority, bound Hugh Lyell when he took the money by consent.
    The title was either real or apparently so, just according to the intent of Hugh Lyell, and by his second deed he expressly confirmed and affirmed the first deed with the name inserted, as his act.
    The fact that the first deed was witnessed and acknowledged matters not; the insertion of the name was no alteration, if done with the consent of the grantor, and, as such, was good on delivery.
    There was, therefore, no violation of the injunction, and the defendant, Oaplis, should not have been adjudged guilty of contempt.

      James W. Romeyn, for complainant and appellee.
    This is an appeal from Wayne Circuit by James Caplis, from an order adjudging him guilty of a contempt in violating a preliminary injunction.
    An order, to show cause why an attachment should not issue, having been made, the court below, on hearing, imposed a fine of $L00. From this the defendant appeals.
    1. The appellant was held liable for a criminal contempt, and was fined accordingly; the court having discretion within certain limits, under the statute. In this case, the decision of the People v. Simonson, 9 Mich. 492, does not apply. The fine is to go to the county, not to the party for whose protection the injunction was granted. The appellee does not claim that “an actual loss or injury has been produced to the party by the misconduct alleged,’ nor does he ask any sum “to indemnify him.” The misconduct is brought to the notice of the court below by the complainant acting as amicus eterice, and the fine is imposed by the court in vindication of its authority; and of the obligation of the writ issued under its direction.

      2. This is not such a final order as gives a right to appeal. The merits of the case had been decided by a decree therein made long previously to the contempt order. From this general decree no appeal has been claimed, and it is now too late to review it. By it all the questions at issue are finally disposed of. Oaplis appears alone to contest a criminal order affecting him personally.
    In the case of Duncan v. Campau, 15 Mich. 415, an order appointing a receiver was held interlocutory and unappealable; though in Lewis v. Campau, 14 Mich. 458, an order, professedly interlocutory, but really in effect a decree, was held appealable. Under these decisions, the court will examine the subject matter of the bill and the record, and will decide the question of dismissing an appeal according to the fact and intent.
    The object of the bill had been satisfied by the decree. The proceeding for contempt and judgment thereon were collateral and incidental. The right of appeal is statutory — 2 Comp. L. p. 1080 — and will be strictly construed.
    3. The order of the court below was correct and proper under the circumstances. ■
    The court has the power, and should exercise the right, to protect itself, and enforce its order or process.
    The record shows a clear and deliberate violation of the injunction, and this court will examine into the circumstan-' ces, for the purpose of deciding upon the intent of the party violating it, in which intent the criminality of the action of the appellant consists.

      Not even a service of the writ of injunction is necessary, in many cases, to bind the party — simple notice will be sufficient. — 1 Barb. Oh. 68I¡.. The doctrine is well settled. And, even though the injunction be irregular or erroneously obtained, the' defendant may not violate it. — Id. p. 636; Sullivan v. Judah, 4 Paige, 444.

    The defense, that in this cause the “apparent title” was not changed, is negatived by the record, and the admissions under his oath of Caplis himself.
   Graves J.

In this case, the defendant Caplis asks us to review, on appeal, an order made in the court below, adjudging him guilty of a contempt, and imposing a fine upon him of $100, and requiring him to pay to the complainant the costs and expenses of the proceeding, taxed in the order at $10.

The contempt imputed to the defendant, consisted in an alleged violation of an injunction issued from the court below, and served upon Caplis, and enjoining him, and the defendants Anderson, Lyell, and Roberts, among other things, from making any conveyance of, or creating any lien upon the premises described in the writ, or in any way changing the apparent title of the same.

In order to decide the questions raised here, it is unnecessary to mention all the facts belonging to the case, but only sueh of them as have a particular bearing on those questions. 1

The premises mentioned in the injuction were situated in Detroit, and the defendant Gray held the title to them, and agreed in writing to sell them to the defendant Anderson.

Subsequently Gray conveyed the premises by quit claim deed to the defendant Lyell, who resided in Scotland. Anderson agreed with the mother of the complainant to sell the premises to her, subject to the payment of the amount due, and to become due on the agreement made by Gray.

The complainant subsequently succeeded to the rights of his mother, and filed the bill in this case to obtain the legal title to the property. The bill set forth the foregoing and other facts to show the equities of complainant, and stated in substance that the defendant Lyell had executed in Scotland a quit claim deed of the premises, without naming any one in it as grantee, or putting any revenue stamp upon it, and in that condition had sent it to one Vincent J. Scott, of Detroit, without any authority whatever to any one to insert the name of any person as grantee, and that subsequently, and on the procurement of Caplis, and without any authority, the name of the defendant Roberts was inserted as grantee, and that the instrument so prepared was delivered to the defendants Caplis and Roberts, and shortly thereafter stamped for $6.50, and recorded in the office of the Register of Deeds for the County of Wayne.

It was also stated in the bill that the two contracts mentioned were likewise recorded in said office, and that shortly after the contract with her, Mrs. Romeyn took possession of the premises, and that the same were occupied by her until her death, and by her children thereafter, and until the filing of the bill.

The complainant having obtained a decree in the cause, an affidavit was filed in the court below in May last, made by Theodore Romeyn, containing, among other things, the following .statement: “Notwithstanding said injunction it appears that a second .deed of said premises, dated on the 28th day of August, 1866, was prepared by said James Caplis, acting for said Roberts, and procured by him, said Caplis, to be sent to said Lyell lor execution, after the bill in this case had been filed and the said injunction served; and that said second deed after its execution was received by said Caplis and delivered by him to said Roberts, and that it was subsequently recorded through their-procurement.”

Such proceedings were thereupon had, that the court below, on. the 15th of June, 1868, adjudged the defendants Caplis and Roberts guilty of the misconduct alleged and that such misconduct was calculated to, or did actually defeat, impair, impede or prejudice the rights of the complainant "in the cause: and on such adjudication the court imposed the fine before mentioned.

It has- been contended before us that the order in this case was not one from which an appeal could be taken since the appellee did not claim than an actual loss or injury had been produced to the party by the misconduct alleged, and did' not ask for any sum to indemnify him. I think that this position can not be sustained. The injunction was an appropriate civil process, belonging to the remedy in the action in which it issued, and the proceeding for its violation was under the chapter entitled, “of proceedings, as for contempts to enforce civil remedies, and to protect the rights of parties in civil actions.”

The order complained of was final and not merely a step in the course of proceeding contemplating further action by the court in relation to the same matter; and it belonged to that class of proceedings which are provided to secure obedience to the necessary processes of courts in civil cases. It adjudged the party guilty of wilful disobedience of. the injunction, and required him to pay a fine, under peril of imprisonment. It did not stop here. It expressly awarded to the complainant the costs and expenses incurred in prosecuting the contempt, and which were fixed by it at $10. This part of the order can not be reconciled with the claim of the appellee, that the prosecution of the contempt was only carried on by the complainant as the friend of the court,- and that the infliction was for the sole purpose of vindicating the authority of the court.

The essential character of the proceeding indicates very clearly that what was sought to be accomplished, and, in fact, done, was intended to be in keeping with the purpose of the statute, which has been referred to.

The right of appeal in similar cases has long been recognized and sanctioned elsewhere, and the necessity, therefor will not be denied.— McCredie v. Senior, 4 Paige, 378; Spaulding v. People, 10 Id. 284; Same on appeal, 7 Hill, 301, and 4th How. 21; People on relation of Davis v. Sturtevant, 9 N. 7. (5 Sel.) 263.

It is by no means intended to be asserted that the right of appeal carries with it an authority to the appellate court to take the place of the court below on the hearing for contempt for every purpose, or to re-examine or revise every matter involved in the judgment; but the power to review the determination below, in respect to questions of jurisdiction, arising out of the determination itself, or in relation to the fact of contempt as depending upon the question whether the terms of the writ covered the specific act supposed to be a breach of the writ, must, it is conceived, be fully conceded.

Was the procurement and registry of the second deed, as stated in Romeyn’s affidavit and as found by the court below, a violation, as adjudged by the court; of that clause in the injunction, which forbade the “making any conveyance of or creating any lien upon said premises or in any way changing the apparent title of the same?”

. “The language of an injunction, like that of all other instruments, must have a reasonable construction with reference to the subject about which it is employed.” — People v. Sturtevant, already cited.

In the case in question, the injunction had reference to the premises which were the subject matter of the litigation and to the co-existing condition of the title, real and apparent. It had reference to the relative positions and claims of the parties, as they then were, the actual state of the controversy, and the opportunities growing out of the nature of the case for adroit management by some of the defendants, by which the subject of the controversy might he made to elude the grasp of the suit.

When the injunction, issued the appellant was earnestly insisting, as he has continued to insist ever since, and still urges, that the first deed from the defendant Lyell, and which was placed upon record was a valid deed.

The complainant, however, maintained that such deed was invalid, and the legality of that instrument was accordingly made one of the chief questions in the case in which the injunction issued.

It was deemed important that so long as that point should remain undecided the parties should be deprived of all power to thwart or embarrass a decision upon it, or change the existing muniments of the title, or induce a state of things which would make a decision upon the case as constituted, indecisive of the controversy.

Though the instrument was upon record, and the record conveyed to no one any intimation that the original Avas tainted with illegality or Avas defectively executed, there Avas, nevertheless, pending in the court beloAv the suit instituted by the complainant having, for its outspoken object, the cancelling or setting aside of such original for defective execution and illegality. To the parties and all others having knowledge of such suit, the apparent title of the premises must have been one depending, in no inconsiderable degree, upon the point involved in the dispute as to the execution of the first deed. It must, therefore, haA-e been evident that any neAv instrument from the defendant Lyell, being so drawn as to import a confirmation of the first conveyance to Roberts, Avould have the effect to change the apparent title. Was the second instrument made by Lyell of that character?

An examination of that deed will answer this question. Besides the usual clauses of a quit claim deed, the instrument in question contains the following matter:

“The party of the first part, having heretofore, to Avit: on the 22d day of December, A. D. 1865, executed a former deed of said premises, Avith the name of the grantee in blank, and transmitted the same to Vincent J. Scott ol Detroit, Michigan, with authority to introduce and insert therein the name of such grantee, as should be so inserted in payment of the consideration money, and on receipt thereof to deliver the said deed to such grantee, duly stamped; and said Scott having complied with my said instructions in that respect, and having inserted the name of Ellis Roberts, of Detroit, Michigan, as such grantee, and delivered to him said deed, -which has been duly recorded; and, whereas, it is deemed prudent, by said grantee, that a deed by way of confirmation should be made by me directly to him. Now, therefore, it is understood, and this conveyance is made by way of confirming said former deed of said premises to said Roberts, which is hereby in all * respects approved and adopted as my act and deed, and as taking effect from the date of its delivery on my behalf by said Scott to said grantee.”

It is seen that the second instrument purported upon its face to be one confirmatory of the first, and to have been intended to meet and cure the very defect which the complainant alleged in his bill to be a fatal one in the title of his adversary.

This instrument was placed upon record. Before this deed was received, the apparent title was one in some degree, certainly, depending upon an instrument assailed in chancery as defectively executed. After it was received and recorded the apparent title was one which, in so far as it depended upon the deeds from Lyell, was seemingly made sound and sufficient against the charge so brought against it by the bill. It seems to me very evident, therefore, that the apparent title was different after the second deed, from Avhat it Avas before; and if this be correct, there must have been a change in the apparent title as a consequence of the second deed.

It is maintained on the part of the appellant that the first deed was valid, and, being so, that the apparent title was the real title, and that, therefore, the second deed produced no change.

This argument involves an assumption of the very question which was in dispute.

The parties were directly opposed upon the precise point in the chancery case, and a leading object of the injunction Avas to prevent Avhat was done, while that question should be in course of litigation.

The appellant certainly could not justify himself in procuring the second deed, by alleging the legal sufficiency of his side of the issue on that question in the chancery suit.

The second instrument declared, in substance, that Roberts, the nominal grantee, believed the evidence of his asserted title would be better, if supported by the confirmation Avhich the second deed assured.

The appellant aided in procuring such second deed in the form in which it stands, and this circumstance, in connection with the other facts implicating the appellant in the struggle for the property, must be taken to imply an opinion on his part that such second deed would at least improve the appearance of the title, if not the title itself. In this opinion I think he Avas correct, and that the consequence of his conduct, in this partictilar, corresponded Avith his intention far enough to constitute the violation of which he was convicted.

I think the order beloAv should be affirmed, with costs, and the case remitted for further proceeding.

Cooley Ch. J.

James W. Romeyn filed his bill in the court below for the specific performance of a contract for the conveyance of certain lands, the legal title to which, subject to the contract, had been in Hugh Lyell, a resident of Scotland. The bill alleged that Lyell had made a deed of these lands, leaving the name of the grantee in blank, and sent it to one Scott that he might receive payment for Lyell; that Caplis had caused the money to be paid, and the blank in the deed to be filled with the name of Ellis Roberts, and that, under this deed, it was sought to hold the lands in disregard of the rights of complainant. Lyell, Caplis and Roberts were made defendants, and the bill prayed that they might be enjoined from making any conveyance of, or creating any lien upon, the premises, or in any Avay changing the apparent title of the same A preliminary injunction was granted in accordance with the prayer.

It is obvious that, under this bill, if the complainant established his case, he would be entitled to a decree for a conveyance of the lands, from the defendant holding the legal title, on making payment of the amount due; and this payment, on the facts set forth, must be made to Roberts, who, as between the three defendants, would have the legal or equitable right to the moneys. The bill alleged the deed from Lyell to Roberts to be invalid; but whether it was so or not was of no consequence to complainant, except as its legal invalidity might preclude Roberts from setting up and maintaining the claim to have been a bona fide purchaser, not affected by complainant’s equities.

The injunction which was granted was important to prevent new elements of doubt and difficulty being brought into the case by liens in favor of, or grants to third persons who might thereby acquire rights, without knowledge of the complainant’s claim. For this purpose it was proper to grant it, but for any other purpose I am unable to perceive how it could have been either needful, proper, or even justifiable to award it.

After knowledge of the injunction had been brought home to the defendants, Caplis procured Lyell to execute a deed of confirmation of the prior deed, reciting therein the facts which were supposed to render the other defective; and this deed was placed upon record. The procuring of this deed is the act which is alleged to be a breach of the injunction, and for this he was fined by the Circuit Court.

A strict and technical construction of the writ may bring this act within its prohibition; but I have no idea any such act was within the contemplation of the officer who granted it. The writ should have a reasonable construction, in view of the remedy sought by the bill, and of the acts within the power of the defendants which might have a tendency to embarrass its enforcement. Those acts were unquestionably meant to be prohibited; but to suppose that the officer allowing the writ meant to go further and prohibit acts which were purely matters of indifference to the complainant, is to impute to him an abuse of the judicial function by the unnecessary and wanton exercise of arbitrary power.

It was a matter of pure indifference to the complainant, whether the first deed from Lyell to Roberts should be followed by a deed of confirmation or not. Such a deed might prevent Lyell from subsequently contesting the right of Roberts, but it could not affect the right of complainant, make new evidence necessary, introduce any element of doubt, or in any way or manner change the aspect of the case. The facts as they existed when the defendants were subjected to the process of the court, were the facts upon which the right of complainant was to depend, and any change of title as between themselves would only raise questions as to who was entitled to the purchase money; and this question would be one to be settled between the defendants, and would not concern the complainant, who was seeking to pay to whomsoever was entitled.

On the other hand, it might be a matter of great importance, as between Roberts and Lyell, that this deed should be - obtained. A considerable sum of money had been paid, for which nothing had been received, except a deed of doubtful validity. If complainant was defeated in the suit, Lyell might claim the land. If complainant succeeded, ■ Lyell might demand the purchase money. In any event, therefore it was important that any doubt respecting the validity of the first deed should be set at rest as between the parties to it, and the proper mode of accomplishing this was by deed of confirmation. As such a deed could not affect complainant, it may fairly be assumed that it did not occur to Caplis that he was committing any legal wrong by procuring it.

It is said, however, the procuring the deed is .within the words of the prohibition. I do not think we should be diligent to discover a criminal offense in a harmless act; or that, on a question of doubtful construction, we should lean in favor of guilt rather than of innocence. But to me, the construction of this writ does not appear to be doubtful. These defendants — as to all of whom the rights of the complainant were fixed by the filing of the bill and service of process — were enjoined from making any conveyance or creating any lien in favor of third persons. In view of the purpose of the bill, this is the only reasonable construction. The last clause embodies the whole idea of the writ. The defendants are forbid, “in any way changing the apparent title” to the land. Now the apparent title, that is, the title as it appeared, both by the deed and by the record, was in Boberts. The new deed did not in any way change this apparent title. If there were any circumstances not appearing by the papers, which might affect the title, it did not change those. The act was not aimed at the complainant; it did not bolster up a title to his prejudice; so far as its recitals could be of any force, they favored the complainant by formally admitting the prior defects; and Ave need have no other evidence of the harmless nature of the act of procuring it, and the absence of guilty intent, than the fact that no attempt whatever was made to use it against complainant, and that the deed Avas first brought to the notice of the Circuit Judge after he had decided the case between these parties, on the merits, and on the facts existing when the bill was filed.

I think the order should be reversed.

Christiancy J. concurred.

Campbell J.

I concur in holding the order complained of in this case as a final order open to appeal. But I see no error in the action of the Circuit Judge. I agree entirely Avith my brother Graves.

The propriety of the Injunction is not a matter into which we can inquire at all. It Avas a matter purely discretionary, and no appeal Avould lie from an order either granting or dissolving it, The court ’saAv fit to grant it and did not see fit to dissolve it, and a violation of it was therefore a’contempt of court. No party can decide for himself, whether he Avill obey or disobey a valid injunction. Until he obtains a dissolution of it, any disregard is contumacious.

The injunction prohibited Hugh Lyell, Caplis, Roberts, and Anderson from “making any conveyance of, or creating any lien wpon said premises, or in any way changing the apparent title of the same.” The bill charged, and the evidence showed, that Hugh Lyell had sent over a deed neither stamped nor filled in, and that Caplis had got it filled in with the name of Roberts, as grantee, and that it had been recorded. It Avas distinctly charged in the bill that the deed was .filled in without authority, and this was a matter still open to proof at the time the alleged contempt w,as .committed. If true the deed was a nullity, and the legal title still remained in Hugh Lyell, while the apparent title Avas such as this deed could give, and no more.

The injunction Avas addressed to all the defendants before named, Lyell as well as Roberts and Caplis, and under it Lyeil could not give and the other parties could not receive any additional rights. If the deed was void it could not be made good, and, being disputed, no act could be lawfully done in aid of it, whether valid or nugatory. The injunction commanded that everything should be left in stcdu quo. Even had the proof shown — which it certainly does not — that the deed was beyond doubt valid, yet the case was not then ripe for proof, and the contempt could not be purged by matter ex post facto. It also appears that in the first days of July, 1866, Mr. Lyell had been served with a copy of the injunction, and on that account had deferred executing this second deed. But had he not been so informed, Caplis knew it, and by obtaining this conveyance was as much a party to its being made, as if he had been the grantor.

I think this conduct was a violation of both clauses of the injunction. The deed was a conveyance beyond any question, and it also worked a very serious change in the apparent title. Before it was executed and recorded, the title was apparently derived from a deed from which complainant might, if the bill was true (and, at this stage of the proceedings, it was a matter in controversy), have had no occasion for alarm so long as the facts were attainable. The new deed was one which, in a court of law, at least, would have been valid. A title derived irom one deed is not really or apparently the same as one derived from another, and intervening rights or liabilities might, and in most cases would, rest on very different grounds. And the fact that the misconduct of a party to a suit can not, by reason of its pendency, avail anything, does not make it any less real. A conveyance to a third party, if a notice of .Its pendens was filed, would have no more effect than a transfer to a co - defendant, and would not require such third party to be brought in. The transfer pendente life would be as practically nugatory in one ease as in the other, and no one could get any greater advantage from it to the prejudice of complainant. If we are to regard these proceedings as thus made a part of the public records, which all persons, would notice, the apparent title would be changed still more seriously; for, by the change, Roberts, who was originally brought in only as setting up a cloud upon title under a void deed, became the holder of all the rights of Hugh Lyell, and became the party ostensibly entitled to the redemption money — thus entirely changing the issues as to both.

An injunction to prevent the transfer of property under air invalid deed, or one claimed to be such, is not granted merely to prevent the wrong doer from profiting by it, for the bill can always be made such notice to the public as to prevent this. It is granted to prevent him from making any further annoyance to complainant by changes which will probably be fruitless, but which may nevertheless require or suggest new complications in litigation. No injunction would elude the ingenuity of parties without requiring in most cases absolute inaction, and. if the court so concludes, the parties can not resist its mandate.

I can conceive no ground for supposing the violation was not intentional. Even Lyell waited nearly two months because he understood the injunction as preventing his action. And such is, I think, the natural inference.


author: Christiancy J.

text:
    Polly Ring v. Della Burt et. al.

      Harried women: Disability of. The statutes of this state, securing to a married woman her separate property, have, as to such property, removed her common law disability, and given her all the powers of a femme sole. But those statutes have no application to interests the wife may have in the property of the husband, and as to such interests the common law disability remains, except as it is expressly removed by other statutes.

      Homestead right: Widow not deprived of by contract or deed of husband. A widow is not bound by a verbal contract, made by her husband, in his life time, by which his homestead was to be conveyed to a third person, in consideration of . the support of himself and wife during their life time. And this is so, even though she assented to the contract, and the husband gave a deed in accordance with it, but which was not executed by her.

      Homestead right: Waiver of. A married woman can only waive her homestead right in the manner provided by the statute: that is, by joining with her husband in a deed or mortgage of the land.

      Homestead: Setting off in equity. Where a widow is entitled to a homestead, in forty acres of land, which are worth more than $1,500, her proper remedy is by bill in equity, to have a homestead of the proper value set off.

      Heard and decided January 9th.

    Appeal in Chancery from Clinton Circuit.
    It appeared that Ira Ring, husband of complainant, owned the premises in question, and that he occupied the same as his homestead with the complainant, his wife, till the time of his death; that defendant, Daniel Burt, Della Burt (his wife, and daughter of complainant) and their children also lived with them; that said Ira Ring owned no other lands, and the premises were worth over §1,600. Testimony was introduced, under objection, tending to show that said 4Ira Ring had entered into a verbal agreement with said Daniel Burt, by the terms of which the said Daniel was to move upon the said premises, take charge of the farm, and of the old gentleman and his wife, during their life, and after their death he was to have the farm and any surplus of the personal property; that said Burt went to reside with them upon said premises, and entered upon the performance of the same with knowledge and consent of the complainant, and so continued until his death.
    That subsequently, and a short time previous to his death, said Ira Ring, with the knowledge of complainant, delivered to his daughter, said Della Burt, a deed of the premises, duly executed, but not signed by his wife. The deed was dated and acknowledged October 9, 1865 — about eight months before this — but it was not recorded until some six days after the death of said Ira.
    It further appeared that the said Ira Ring made his will, dated some three weeks previous to his death, devising said premises to said Della after the death of his said wife; which will was duly proven.
    There was also testimony tending to show that defendant had offered to take care of complainant after the death of her husband, but that she refused.
    She also.introduced testimony tending to show that defendants treated her cruelly, and ordered her to leave the premises after her husband’s death.
    The bill was dismissed, without prejudice.

      Spaulding S Cranson, for complainant.
    1. The devise of the premises to defendant, Della Burt, after the death of complainant, who was the wife of the testator, vests a life estate in the complainant by implication. — 2 Bl. Comm. 309.

      2. Defendants can not prove any consideration, additional to that expressed in their deed. — 1 Johns. 189; 7 Id. 341.

    But if defendants can, in this case, prove a further consideration, they must rely on that set up in their answer. 11 Mich. 529; 1 Dan. Ch. Pr. 725, 726; 2 Id. 851, and cases cited.

    3. To constitute a homestead there must be ownership and occupation. In this case the ownership is not disputed.
    As to the occupation:

      a. Complainant and her husband had lived upon the land for many years, and if the character of a legal homestead had ceased, it must have been in consequence of the arrangement under which defendants came upon the premises. This was, that complainant and her husband should continue to hold and own the place, as long as either of them should live; and it would be aiding a gross fraud upon her, to make this contract amount to a waiver of the very right she sought to secure.
    The provision of the constitution, which declares a husband’s deed of a homestead void without the signature of his wife, can not be evaded in this way. —11 Gray (Mass.) 216.

      b. The occupation need not be exclusive, and the party owning premises and living thereon, need not have the management and control of them; especially if such management and control be parted with, under an arrangement made for the express purpose of securing a home for the owner.

      c. But in this case, Ira Ring did not part with such control. The parties lived together as one family, and he was the head of it. He paid the taxes up to the time of his death, and he and his wife continued to work on the place, as they always had done. Defendants’ witness, Gates, says complainant told him that Burt and his wife had'come to help take care of the place; and Della Burt says they, the defendants, were not to have full possession of the premises, until the death of both Ira Bing and complainant.
    4. There is nothing appearing which can be construed to amount to an assent, by the complainant, to the defendants’ claim or estop her from disputing it.

      a. Her assent to the arrangement under which defendants came upon the land, was not an assent to the deed, because the deed was made in pursuancé of such arrangement, but is in conflict with, and repugnant to it.

      b. She is not estopped from disputing the deed.
    If this deed included a homestead, and it was not at the time of its execution contemplated that the wife should sign it, then. such a conveyance as the law recognizes as valid was not intended, and complainant can not be es-topped from setting up her right against an instrument which was never meant, to bind her, and which was for that reason void in its inception. That it was not intended that complainant should sign the deed is conclusively shown by the fact that her name is not mentioned in it, nor does it in any way refer to her. There is no proof that she was ever recpiested to sign it, or that anything was ever said to her in relation to it.
    The testimony does not connect complainant with the deed subsequent to its execution.
    But the positive provision of the constitution can not be evaded by proof of loose statements of this kind, however clearly made out.
    Where a waiver of a homestead exemption is claimed, the party asserting it must show it by affirmative and competent proof. — 7 Mich. 488.

    The law that no deed of a homestead shall be valid without the signature of the wife, is to be strictly construed.— 32 Cal. 117.

    The homestead can not be released, waived or discharged except in the manner expressly provided.— 2 Allen, 202; 6 Id. 404.

      5. The strongest reason that can be urged against granting the prayer of the bill, is that it appears in the proofs that complainant consented to an arrangement under which defendants were to live upon and work the land, and that she now seeks to repudiate it.
    This objection is easily answered :

      a. The complainant asks nothing inequitable, as against the defendants. The consideration for which they were to live upon the land, was that they were to own it after the death of Ira Ring and the complainant. This is secured to them by the will, and we do not seek to affect it in any way.

      1). This is not such a contract as would be enforced against the complainant. She was a married woman, and it was not in relation to her separate property. Again, it was not mutual. There is nothing appearing in proof, which would have prevented the defendants from abandoning the place at any time.

      c. The defendants have themselves repudiated it by claiming title under a deed which is inconsistent with it; and they have violated it by abusive treatment of the complainant, and ordering her to leave the premises, which amounts to an eviction.

      cl. The defendants can not avail themselves of this contract, for they have not set it up as a defense in their answer; but have denied it by charging one inconsistent with and repugnant to it.
    G. The testimony shows that it was not the intention of any of the parties concerned, that defendants should have the title which they set up, but that their claim is an afterthought, arising after the death of Ira Ring.

      a. This appears from the will, made long after the deed, and in strict conformity to the contract as proved.

      b. By the fact that no such claim is shown to have been made during the life of Ira Ring, and that the deed was not recorded until his death.

      7. If the complainant can not have the relief prayed for, she is deprived of her homestead, without her consent, and is left wholly without remedy. .

      a. If the defendants own the land by virtue of their deed, they can at any time mortgage or sell it to whom they please.

      1). If complainant has waived her homestead rights, she has waived her right of dower as well.
    She claims an undetermined portion of the premises, and can not recover such portion in an action of ejectment; but requires the aid of a Court of Equity to ascertain and set it off to her.

      StricJdand & Stout, for defendants.
    1. The bill in this case was filed for the purpose of having the land therein described, declared to have been under the laws of this state the homestead of one Ira Eing at the time of his death, and complainant, his widow, entitled to the possession of the same.
    If the land in question had been owned and occupied by the said Ira Eing at the time of his death, as a homestead under the laws of this state, and complainant, as his widow, entitled to the possession of the same, she has a full and complete remedy at law. — Har. Mich. 1; 9 Mich. 15; 12 Id. 22.

    The evidence in the case clearly shows that the defendants entered into the possession of the land in question by virtue of an arrangement or agreement, by and between them, the said Ira Eing and complainant, several years before the death of the said Ira Eing; that defendants remained in possession of the same until the death of said Ira Eing, and still continue in possession.
    The arrangement was that the defendants 'sh'ould support and take care of the said Ira Eing and complainant during life, and have the land for so doing.

      That said Ira Ring carried out the said agreement by conveying said land to Della Burt, one of these defendants.
    This state of facts entirely precludes the idea of a homestead, as applied to the land in question..— 3 Mich. 448; 6 Id. 456; 10 Id. 291; 11 Id. 527.

    2. The arrangement or agreement of the parties named, had been so far executed by defendants going into possession and taking care of the said Ira Ring and complainant, for the time shown by the proof, that equity would enforce the agreement if no conveyance of the land had been executed.
    If the complainant has the right to dower in the premises, she has a full and adequate remedy at law, to recover the same. — 6 Mich. 470.

   Christiancy J.

The deed of October 9, 1865, from Ira Ring to his daughter, Della Burt, without the signature of complainant, then his wife, was, both by the constitution and the statutes, void, as against the complainant’s right to a homestead. See Const. Art. 16, § 2; Comp. L. Oh. 132, §§i, 2.

This is not denied so far as the question depends upon the deed alone. But defendant insists that the deed was made in consideration and pursuance of a verbal agreement between Ira Ring and complainant, then his wife, on the one side, and the defendants on the other, by which the defendants were to support and take care of said Ring and complainant, during their lives in case they should live with defendants on the place; that the defendants went into possession under said deed, and that complainant and her husband continued to live with, and were supported by defendants till the death of said Ira, June 26, 1866, and that they were ready and willing to continue to support complainant according to the agreement, but that she left them of her own accord, etc.

Admitting this agreement, and its part performance, to be fully proved, and that the deed was made in pursuance of it, we are unable to perceive how it can, in any manner, affect the right of complainant to a homestead in the premises.

At common law, a married woman is incapable of entering into any binding contract affecting any right she may have in her husband’s property, and the common law disability still continues in this state, except as it has been removed by statute. The statutes, securing to her her separate property, have, as to such sole or separate property, removed the disability and given her all the powers of a femme sole.

But the right to a homestead in her husband’s lands is no more in the nature of such sole property, than the right to dower; and there is a striking similarity between them, as to the question here involved. The only mode in which she can convey or encumber (or in any manner affect by contract) either of these rights during coverture, is by joining in a deed or mortgage with her husband, according to the statutes. Her agreement therefore, if made as claimed, was simply void. The defendants being in possession, and the forty acres of land with the dwelling house and improvements being admitted to be worth more than $1,500, this bill is the proper remedy for having the homestead ascertained and set off to her. — Beecher v. Baddy, 7 Mich. 488.

The decree of the court below dismissing the bill must be reversed with costs of both courts, and a decree must be entered in this court giving to her the right to a homestead to be ascertained and set off according to the prayer of the bill, and declaring the deed of Ira Ring to Della Burt, void and of no qffect as against complainant’s rights to such homestead. And the case must be remitted to the court below for such further proceedings as may be necessary to carry this decree into effect.

The other Justices concurred.


author: ClIRISXIANCY J.

text:
    William H. Proctor v. William C. Prout.

      Fraudulent Debtor Act; Evidence on which warrant may issue. In. a complaint under the fraudulent debtor act, Hie complainant must set forth such facts and circumstances, within his own knowledge, as will authorize the officer who is to issue the warrant to find such a state of facts as required by the statute to authorize the proceeding. And if the complainant is not himself personally cognizant of the facts and circumstances relied upon, he must procure the affidavit of some one who is thus cognizant of them.
    Such a warrant can not be issued upon hearsay, nor upon any statement, however positive, founded upon hearsay.
    The affidavit ought to show upon its face, with reasonable certainty, that the affiant is personally cognizant of the facts set forth.

      What affidavit is insufficient. An affidavit by the complainant that his debtors, W. and 0., refuse to pay their debt; that O. has left the county, and taken all or a part of his property with him to parts unknown to the complainant, or concealed the same; and that W. stated he would not pay the debt, and had taken notes in his mother’s name for money belonging to him, and stated that he did it to keep it from his creditors, and that he keeps his property secreted in the name of his wife, as the affiant has been credibly informed, to prevent paying his debts —does nob show with reasonable certainty that the affiant is personally cognizant of the facts set forth, and is insufficient.

      Heard and decided January 7th.

    Certiorari to Martin Hawley, a Justice of the Peace in Bran cb County.
    This was a proceeding under,. the Fraudulent Debtors Act — Gomp. L. § 5890 — and was based upon tbe following affidavit:

    William O. Prout, being duly sworn, deposes and says that William H. Proctor and Oliver A. Proctor are justly indebted to this deponent in the sum of $170, upon a judgment rendered by Martin Hawley, Esq. a Justice of the Peace, of the Township of Quincy, in said County, on the 14th day of December, 1867, upon a contract for goods and personal property, sold and delivered to the said William H. Proctor and Oliver A. Proctor, for which demand the said William H. Proctor and Oliver A. Proctor can not be arrested or imprisoned according to the provisions of Gomp. L. Oh. 166 of this state, entitled ‘ of the punishment of fradulent debtors; ’ and this deponent further says that he has good reason to believe, and does verily believe that the said William H. Proctor and Oliver A. Proctor are about to remove their property out of the jurisdiction of the court in which said suit is brought with intent to defraud their creditors, and that said defendants have property and rights in action which they fraudulently conceal, and that they have money and evidences of debt which they unjustly refuse to apply to the payment of said judgment which was rendered against them, and in favor of this complainant; also, that they have assigned, removed and disposed of their property with intent to defraud tlieir creditors; and the grounds for that belief are that they refuse to pay said debt or judgment, and that Oliver A. Proctor has left said county and taken all or a part of his property with him to parts unknown to this complainant, or concealed the same; and that William H. Proctor stated that he would not pay said judgment, and has taken notes in his mother’s name for moneys belonging- to him, and stated that he did it to keep it from his creditors, and that he now resides in the City of Coldwater in said county, and keeps his property secreted or in the name of his wife, as this complainant has been credibly informed to prevent paying his debts.
    WILLIAM C. PROUT.
    Sworn and subscribed to this 3d day of April, 1868, before me.
    M. HAWLEY.

      Justice of the Peace."

      Parher é Parsons, and Moore & Griffin, for plaintiff in error.
    The affidavit in this case is upon information and belief, and gave the commissioner no jurisdiction.— 10 Wend. 421; 14 Id. 237; 21 Id. 672; 6 Hill, 429; 7 Id. 187; 3 Barb. 175; 17 Id. 179.

      Shipman & Loveridge, for defendant in error.
    Cited — 14 Wend. 237; 20 Id. 77, 145; 6 Hill, 429; 6 How. Pr. 109; 9 Id. 255; 1 Barb. 552; 5 Id. 575; 15 Id. 546; 16 Id. 367; 14 Mich. 346, 498.

   ClIRISXIANCY J.

This was a proceeding instituted by Prout before the justice against William II. Proctor and Oliver A. Proctor, under the act for the punishment of fraudulent debtors, Gomp. L. Oh. 166 — and the defendant, William II. Proctor, brings the case before us .upon a certiorari to the justice.

Prout’s claim purports to be based upon a judgment recovered by him before the justice against both the Proctors upon contract. The warrant was issued against both, but served only upon William II., and all the proceedings before the justice under the warrant were against him alone.

On the hearing before the justice, ho objected to the sufficiency of the affidavit on which the warrant issued, because- it did not state any sufficient evidence to give the1 justice jurisdiction as against him.

By the fourth section of the act the warrant is not to be issued “without satisfactory evidence by the affidavit of the plaintiff, or some other person,” of the facts required by the statute, and while the affidavit may state generally the grounds of the application upon belief only, we understand the rule to be well settled that, to show the grounds of his belief, he must set forth such facts and circumstances within his own hnowledge, as will authorize the officer who is to issue the warrant to find such a state of facts as required by the statute to authorize the proceeding. And if the plaintiff is not himself personally cognizant of the facts and circumstances relied upon, he must procure the affidavit of some one who is thus personally cognizant of them. The warrant can not be issued upon hearsay, nor upon any statement, however positive, founded upon hearsay.

And in the ex parle application for this extraordinary remedy, there being no opportunity for cross-examination as to the matters set forth in the affidavit, we think the true and only safe rule is that the affidavit should show upon its face, with reasonable certainty, that the affiant is personally cognizant of the facts set forth. And that if, from the nature of the facts under the circumstances disclosed, such personal knowledge can not fairly be presumed, then it ought, in some manner, to be affirmatively shown in the affidavit.

The portion of the affidavit which purports to set forth the reasons for the plaintiff’s belief is as follows: “And the grounds for that belief are that they (William H. and Oliver A. Proctor) refuse to pay said debt or judgment; that Oliver A. Proctor has left said county and taken all or a part of his property with him to parts unknown to this complainant, or concealed the same; and that William H. Proctor stated he would not pay' said judgment, and has taken notes in his mother’s name for money belonging to him, and stated that he did it to keep it from his creditors, and that he now resides in the City of Coldwater, in said county, and keeps his property secreted in the name of his wife, as this deponent has been credibly informed, to prevent paying his debts.”

Of this affidavit, it will be noticed: First, That it does not show that the two Proctors had any joint property, nor anything from which such an inference can be drawn. Second, The statement that “Oliver A. Proctor has left the county and taken his property, etc.,” has no possible tendency to show that William H. Proctor has done the same, nor does it tend to sustain any of the charges contained in any part of the affidavit as against him.

• The statement that William PI. Proctor keeps his property secreted in the name of his wife, etc., is expressly declared to be upon information and belief, and need not, therefore, be noticed.

The only remaining portion which can possibly be claimed to prove facts and circumstances sustaining any ground upon which a warrant could issue, is, “'that William H. Proctor stated that he would not pay said judgment, and has taken notes in his mother’s name for money belonging to him, and stated that he did it to keep it from his creditors.” In form, this is a positive statement of facts, but when carefully examined and construed, with reference to its object and purpose, it is so in form only. As to the statements here attributed to Proctor, there is nothing in their nature from which we can reasonably presume that, if made, they were made to or in the hearing of the affiant, and he has not stated them to have been so made, nor to whom nor on what occasion they were made. If these statements were made to the affiant, or in his hearing, he would naturally have said so, instead of merely saying, in the most general form possible, that “he stated” so and so, without mentioning to whom, or where, or when. This singular silence and reserve, in a case where, if the statements were made to him or in his hearing, it would much better and more certainly have effected his purpose to have said so, seems to indicate special care and caution on the part of the affiant, to avoid saying that the statements were made to him, or in his hearing, or to whom, or on what occasion they were made.

As he was making the affidavit ex parte, to satisfy the Justice of the necessary facts on which to obtain a warrant, we may take it for granted that he stated his case as strongly as he thought the facts would warrant; and that if the statements had been made to him, or in his hearing— as this would make out his case beyond dispute, while the general statement might leave it at least doubtful — we may take it for granted he would so have stated his case, if the facts would warrant it. Under such circumstances, in giving a construction to his affidavit, we can not properly construe this general statement as a declaration on his part, that he was personally cognizant of the statement alluded to. Hence we can not treat these general statements as proper evidence upon which the justice could act in granting the warrant.

There is another reason why the affidavit in giving any statements of the defendant should state to whom or on what occasion they were made. By the seventh section of the act, the defendant on being brought before the justice, “may controvert any of the facts ancl circumstances on which the warrant issued, and may, at his own option, verify his allegations by his own oath.” How could defendant produce witnesses to disprove these general allegations? However false they might be, they do not admit of contradiction by witnesses. And even if he is to .controvert them by his own oath — which he cannot be compelled to resort to — fairness to him requires that the allegations of his statements should be more specifically made.

The allegations of the affidavit as to defendant’s statements being rejected, the other allegation that “the defendant took notes in his mother’s name for money due to himself,” if not equally open to the same objection, has no bearing upon any case made by the affidavit for a warrant; as there is no allegation that defendant had ever been requested to apply this money or the notes upon the judgment.

We think the justice acquired no jurisdiction by the affidavit as against William H. Proctor, and that all the proceedings under the warrant were void.

The judgment or determination of the justice must therefore be reversed, with costs of both, courts to the plaintiff in the certiorari.

The other Justices concurred.


author: By the Court: '

text:
    Simeon B. Smith v. First National Bank of Tecumseh.

      Tax upon capital stock, of national banks. A specific tax, laid by the state ‘'upon the capital stock paid in ” of the national banks, is directly opposed to the law of Congress upon that subject; and is, therefore, void.

      Costs in an amicable suit. In an amicable suit to test the validity of a statute, it is proper to deny costs to the prevailing party.

      Heard and decided January 11th.

    Error to Lenawee Circuit.
    The legislature of 1867, passed an act- — Sess. L. 1867, vol. 1, p. 168 — which provided that each bank and banking association, organized under the laws of the United States, doing business in the State of Michigan, should pay an annual specific tax, to the state, of one per cent, upon the capital stock paid in of said banks, less the value of the real estate owned by said banks, which should be in lieu of all other taxes upon said banks, or the shares thereof held or owned by individuals; except that the real estate held or owned by said banks should be subject to taxation like other real estate.
    The defendant in error in this suit refused to pay the tax assessed under this act, and the Auditor General issued to the plaintiff in error, who was sheriff of Lenawee County, his warrant for the collection thereof. Thereupon the plaintiff in .error, by virtue of such warrant, levied upon currency belonging to the bank, sufficient to satisfy the tax and the fees for collection, and in order to test the legality of this levy, a case was agreed upon by the parties, and submitted to the court below, presenting the question whether the bank was entitled to recover of the sheriff the amount of the currency levied upon as in an action of trespass. The court below gave judgment for the bank.

      D. May, Attorney General, for plaintiff, in error.

      A. L. Millerd, for defendant in error’.
   By the Court: '

This case is too plain for argument. The Act of Congress under which the national banks are organized allows the taxation by the States of the shares of stock in the banks, but not of the capital stock itself. The decisions by the Supreme Court of -the United States in Van Allen v. The Assessors, 3 Wall. 573; People v. Commissioners, 4 Id. and Bradley v. People, Id. 459, fully cover the case. The judgment must be affirmed.

Mr. Millerd, asked for costs, but the Court held that in an amicable suit like this to determine the validity of a statute it was proper not to award costs.

Motion denied.


author: Campbell J.

text:
    The People v. Alfred Treadway et al.

      County Clerk: When, liable on bond for Jury and entry fees: Presumption. The county clerk is only responsible for the entry and jury fees actually paid to him; and while the entry of a cause upon the calendar is prima fade evidence of the payment of the fees prescribed by law, yet if it is made to appear that no such payment was made, the presumption ceases.

      Jury Fee: Demand for Jury: Presumption. As regards jury fees, there is no room for presumption for or against the jury having been claimed by a party, or summoned at the instance of the court without such claim, since the record must show all the facts; and presumptions are never allowable when better evidence of a primary nature is required by law to be preserved.

      County Clerk: Official bonds: Sureties. When the county clerk fraudulently countersigned and filled up a warrant upon the treasury, which had been signed in blank by the chairman of the Board of Supervisors, and drew the money thereon: Beld, that while this was a misuse of his official authority, it was nevertheless an official act, and the sureties of the clerk were liable upon his official bond, to pay the amount overdrawn.

      Heard January 7th.

      Decided January 11th.

      Error to Oakland Circuit.
    This was an action of covenant brought on a bond, given by defendant Treadway, ■ with sureties, as County Clerk of Oakland County. The bond on which suit was brought, was dated December 16, 1852, conditioned that “if the said Alfred Treadway shall faithfully, truly and impartially perform all the duties of his said office, and shall pay over all moneys that may come into his hands as such clerk, etc.”
    The pleadings and record show that Treadway entered upon the duties of his office in January, 1853, and held the same until December 31, 1855, and while he held the office he received public money to the amount of $600 and upwards, which he had neglected, and refused to pay over, being money received as entrance and jury fees.
    Also, that said Treadway, as such County Clerk, filled out an order, payable to himself, for $100; and on such order drew the sum of $100 from the County Treasurer: And that the same was an overdrawing of his salary, as County Clerk, for that sum.
    Upon the trial of the ca.use, the plaintiff proved that Treadway had received a large amount of money as entrance fees and jury fees, which he had not paid over, as is required by law. And, also, that he overdrew his salary to the amount of $100.
    The errors assigned are:
    1. That the court charged that the legal presumption was that the clerk received the fees in all cases where the law required an entrance fee to be paid; and, also, in all cases tried by jury in which the law required a jury fee to be paid.
    2. That the court charged the jury, that the act of Treadway in overdrawing his salary ($100) was an official act for which Treadway was liable, and also his bail.
    Judgment was rendered for the plaintiff.

      A. G. Baldwin, for plaintiff in error.
    1 The payment of _ the comity fee may be deemed a pre-requisite to the entry of a cause on the calendar, and if found there, probably conclusive as to the liability of the clerk. But in the 'case of the jury fee, it is different. The Laws of 1858, p. 187, gave' the court power in all actions of tort, to order the cause to be tried by a jury.— See Gomp. L. 999, § 1.

    It will not be contended that in case the court order a jury, that the plaintiff shall pay the jury fee, when he is willing to submit the case to the court. If he demands a jury, then he is presumed to pay for it, but if the court order it, then the payment of the jury fee is to abide the event of the suit.- — 19 Johns. Sift-

    2. By the laws of this state, the County Clerk is made the Clerk of the Board of Supervisors. His duties as such clerk are clearly defined, and any act of his, outside of his prescribed duties, are unofficial acts, for which, though he may be even criminally prosecuted, his bail would not be liable. There is no law of this state authorizing him to issue warrants for money, as was done in this case.
    In all actions upon bonds of this nature, the instrument is to be strictly construed. — See 8 Leigh, 703, cited in 1 U. S. D. 449; 17 Ohio, 554.

    3. In this case, if the clerk had no authority to issue the order, the County Treasurer is the one liable to the people for the money. This latter officer is bound to know by what authority any money is paid out of the treasury; and if he pay any on orders improperly or improvidently issued, he must take the consequences. If the money was paid by the treasurer without authority of law, or without a proper warrant, the only recourse for the county is upon the treasurer, and his bail, and not upon the person who received it. Certainly the bail of the recipient is not h olden.

      G. & G. 8. Draper, for defendaiit in error.
    1. Every officer is presumed to have done what the law required he should do. The records of the Circuit Court for Oakland County, exhibited in proof, showed affirmatively that while Treadway held the office of County Clerk, he received, or he should have received, for the county, as entrance and jury fees, $616, a large amount of -which he never paid over to the County Treasurer.
    “When a person is bound to do a certain act, the omission of which would be a culpable neglect of duty, the performance of it will be presumed unless the contrary is shown.” — 19 Johns. 345.

    After the plaintiff had shown that Treadway, while County Clerk, entered causes, thus prima facie showing the receipt, by him, of entrance fees, and that civil causes were tried by jury, and thus jury fees were in his hands, the onus of proof shifted to the defendants, to show payment, or 'such facts as would make a defense.— 1 Greenlf. Mo. 51, 105; 17 Ga. 624.

      2. The second error assigned is, that ■ an order issued under the hand and signed by Mr. Treadway, as County Clerk — and which Avas the only mode by which the salaries of the county officers could be draAvn by them — Avas not an official act for which the bail are liable.
    In reply, Ave say this point is to be tested by the averments in the plaintiff’s declaration".
    The act of the clerk, in signing the order upon which he dreAY money, is an official act.
    The only Avay by which he could have obtained the sum of $100, Avas to fill up and sign an order for that sum, and he must act officially, or under color of office, to do it.
    The rule on this point is, that if the act done by the officer is performed under color of his office, his sureties are responsible. — 3 Incl. 1J11.

      3. Did Treadway faithfully and truly perform the duties of his office as clerk, when he signed his name to the order, and thus fraudulently obtained the $100 ? We think not. It was a breach of a condition of the bond on which this suit was brought.
    The design of all official bonds is to secure from losses those who are, or may be, interested in the faithful discharge of the duties mentioned in them. Such bonds are given to protect against damage occasioned by unfaithfulness, negligence, or dishonesty in such offices. — 7 Greenlf. 820; 2 Blackf. 192.

   Campbell J.

Defendants below were sued upon the official bond of Treadway, as County Clerk, and recovery was sought for three different classes of charges for money received by him and alleged not to have been accounted for. These consisted of entry fees and jury fees, and a sum of $100 drawn by him, without authority, as extra salary.

The court held as to the entry and jury fees, that he was answerable for them whether the money was received by him or not, and that the law presumed in every case entered in the docket that the money for entry or jury fees had been received by him, and also presumed that every jury was claimed by one of the parties and not ordered by the court.

This charge was incorrect. The clerk is responsible for all entry and jury fees received by him in fact. But we have recognized the fact that entry fees are not always paid, and that proceedings are not 'thereby rendered void; and have held that in such cases, when brought to the notice of the court, there should be no dismissal if the fees are then promptly paid.

As the entry on the calendar shows payment prima facie, of course there need be no other evidence as against the clerk; but if it is then by him made to appear that no such payment was made, he may thus overcome the presumption of payment, and no recovery can be had for money as received, which, as a matter of fact, .he never did receive.

In regard to jury causes, the files and records must always show how the jury came to be called, and the proof can be had without difficulty. There is no room for presumption for or against their having been summoned at the instance of the court, when there is record proof. Presumptions are never allowable when better evidence of a primary nature is required by law to be preserved.

It was also alleged against the judgment that the sureties of the clerk could not be properly held for his act in drawing extra salary, because that act was entirely unlawful, and the treasurer had no right to pay it.

But, under the law, the money in the treasury is drawn upon warrants signed by the chairman of the board of supervisors, and couutersigned by the clerk. In this instance, one of these warrants, signed in blank by the chairman, was filled up and completed by the clerk, who appended his official signature, and thus obtained the money. It certainly is very plain that this money was obtained by a misuse of his official authority to sign warrants, and that wrongful act was an official act. If such an officer is to be regarded as acting unofficially whenever he violates his duty, it is not easy to see what object there can be in requiring official bonds. They are not meant to be mere formalities, and they can only be made to secure against the consequences of some sort of misdoings. Their object is to obtain indemnity against the use of an official position lor wrong purposes, and that which is done under color of office, and which would obtain no credit except from its appearing to be a regular official act, is .within the protection of the bond, and must be made good by those who signed it. If the warrant in question was so suspicious on its face as to render the treasurer culpable for paying it, that does not lessen the 'fault of the clerk, or render his act any less official. It may involve another party in fault,, but it leaves his own act unchanged. There was no error in the charge of the court on this item, but the instructions given on the others were erroneous.

Judgment must be reversed, and a new trial granted.

The other Justices concurred.