text:
    DIAMANT v. CHESTNUT.
    1. Evidence — Written Contract — Parol Evidence — Admissibility.
    A certified check, given by defendant in a replevin suit to the sheriff “as an indemnity bond in action for replevin,” held, to create a contract clear and unambiguous, and that parol evidence was inadmissible to show that the check was received for any other purpose than that of indemnity.
    2. Indemnity.
    To indemnify is to secure, to save harmless from loss or damage.
    3. Sheriffs and Constables — Replevin—Indemnity Bond — Inability.
    Where the sheriff, instead of holding a certified check as an indemnity bond in replevin suit, as recited on its face, surrendered it to the plaintiff in replevin, who cashed it and discontinued the suit, he was liable for the amount of the check, in an action therefor; it being undisputed that he has not been damnified nor sustained any loss in the premises.
    Error to Genesee; Brennan, J.
    Submitted October 22, 1918.
    (Docket No. 97.)
    Decided December 27, 1918.
    Assumpsit by Harry Diamant against John S. Chestnut, sheriff of Genesee county, for the amount of a certified check given as a pledge. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Farley & Selby, for appellant.

      Brownell & McBride, for appellee.
   Stone, J.

The issue in this case is well stated in the pleadings. The claim of the plaintiff, by his declaration, is that on September 20, 1917, a writ of replevin was issued from the circuit court for the county of Genesee wherein the Flint Lumber Company was plaintiff, and this plaintiff was the defendant; that said writ was placed in the hands of the undersheriff of the county, who with said writ went to the place of business of this plaintiff, where the property described in the writ was located; that the officer did not take into his possession the property, nor cause any appraisal thereof to be made as provided by statute, but informed this plaintiff that unless he gave a bond forthwith, he would take the property away from the latter’s premises; that the plaintiff herein, being unable to furnish a bond forthwith, was required by the said undersheriff to place in his hands, and payable to John S. Chestnut, sheriff of said county, a certified check in the sum of $500, to be held by said sheriff in the place and stead of the bond required by statute, said check having on its face the title of the cause in which said writ was issued, and containing in writing on its face the contract between this, plaintiff and the said sheriff; that said check was being held as an indemnity bond in said action; that said sheriff, instead of holding said certified check as an indemnity bond, and in violation of the terms of the contract written on the face of said check, transferred said check and the money represented thereby, by his indorsement thereon, to the Flint Lumber Company aforesaid, which company cashed said check and discontinued said replevin suit; that the plaintiff herein has a good and meritorious defense to the claim of said Flint Lumber Company in said suit, and gave said certified check as an indemnity bond for the purpose of being able to retain the property named in said writ, until he could have an opportunity to make said defense in the court which issued the writ; that by the action of the defendant herein as sheriff, plaintiff has been deprived of the money represented by said certified check, and of his said defense; that by reason of the premises the defendant herein has become indebted to the plaintiff in the sum of $500 and interest thereon from said September 20, 1917, which he has refused to pay although often requested so to do.

The plea was the general issue, with a notice of special defense, that at and before the time of the making and delivery of said certified check, it was agreed by and between the Flint Lumber Company and the plaintiff herein that said John S. Chestnut, sheriff, or his deputies, should not execute said writ of replevin, but that the plaintiff herein would deposit with the undersheriff a certified check for $500 to be held by the latter until 9 o’clock in the morning of September 24, 1917, at which time if a bond in twice the value of said property was filed by the plaintiff herein with said sheriff, the said check was to be returned to the plaintiff herein, and the replevin suit was to proceed to trial, but otherwise said check was to be turned over by said sheriff to the Flint Lumber Company in full settlement of its claim of $538 against the plaintiff herein, on account of the purchase by the latter of the property in question, and said replevin suit was to be discontinued; that said Flint Lumber Company, through its proper agents and attorneys, then and there agreed with the plaintiff herein to settle in full its said claim for $500 upon the condition herein fully set forth; that instructions to that effect were given to the said undersheriff at said time by the plaintiff herein; that thereafter the plaintiff utterly refused and neglected to furnish said bond, and said check was turned over by the defendant to said Flint Lumber Company in accordance with the instructions received from the plaintiff herein, at the time said check was given; and that the defendant herein, in turning over said check to the said lumber company, merely carried out the instructions given by the plaintiff herein to him at the time of the delivery of the said check as aforesaid, which was in accordance with the terms of the settlement aforesaid.

The said check was in the words and figures following :

“Diamond Millinery Co., Inc. No. 712
“Flint Lumber Co.
“vs.
“Harry Diamant
“Flint, Michigan, Sept. 20", 1917.
“Pay to the order of John S. Chestnut, Sheriff Genesee County $500 as an indemnity bond in action for replevin.
“Five Hundred .......................... Dollars
• “Diamond Millinery Co., Inc.,
“Harry Diamant,
“To “Secy, and Treas.
“Union Trust & Savings Bank,
“Flint, Michigan.
“74-53
(On face of check)
“Certified Sept. 20, 1917.
“Union Trust & Savings Bank,
“Flint, Mich.
“W. E. McInnis, Teller.
“Paid 9-25-17.
(Endorsed on back)
“John S. Chestnut,
“Sheriff Gen. Co.
“Homer J. McBride,
“Flint Lumber Co.,
“Per R. Kleinpell, Treas.”

At the trial testimony was offered and received tending to sustain the claim of each party, and there was a sharp conflict in the evidence upon the facts involved.

The case was submitted to the jury, and the trial resulted in a verdict and judgment for the defendant. The evidence offered and received on behalf of defendant tending to show his claim as set forth in his notice under the general issue, was all objected to by plaintiff’s counsel as incompetent and immaterial, and varied the terms of the written contract or check, by parol. The objections were overruled.

At the close of the testimony on behalf of defendant, plaintiff’s counsel moved the court for a directed verdict for the plaintiff for the following reasons:

First. That the certified check which was given to the defendant was a pledge, under the evidence offered by the defendant, that a bond would be given on a fixed day, and that the check on its face contains a written contract.

Second. That the sheriff, having turned over this check to the Flint Lumber Company without notice to the plaintiff, is liable.

The motion was overruled.

The plaintiff’s fifth request to charge was to the effect that, under the undisputed evidence in the case, the verdict should be for the plaintiff for the amount of the said check, with interest from the date of demand, at five per cent, per annum. This request was refused.

The plaintiff made a motion for a new trial for the reasons that the verdict was clearly against the weight of the evidence; that the court erred in admitting testimony to vary and contradict the terms of the written contract on the face of the check, upon which plaintiff based his claim in this action; that the court erred in refusing to direct a verdict in favor of the plaintiff, and against the defendant at the close of the defendant’s testimony; and that the court erred in refusing to give the plaintiff’s fifth request to charge. The motion was denied, and exceptions were duly taken. The plaintiff has brought the case here for review, and by his assignments of error the same questions are raised as in the motion for a new trial.

Counsel for plaintiff and appellant argue the following questions:

(1) Whether or not the certified check delivered to the defendant, with the contract written upon its face, was a pledge.

(2) If the certified check was not a pledge, whether or not it was sufficient, under the statutes of this State, as a replevin bond.

(3) Whether or not parol testimony could be introduced to vary and contradict the terms of the written contract on the face of the check.

1. We will consider the last question first. It is the claim of appellant that the writing on the face of the check, consisting of the title of the case and the words: “as an indemnity bond in action for replevin,” was plain and unambiguous, and could not be varied or contradicted, or the character of the instrument changed by contemporaneous parol testimony, and that it makes no difference whether the instrument constituted a pledge, or a replevin bond, so far as the rule concerning the admission of parol testimony is concerned.

Thomas v. Scutt, 127 N. Y. 133 (27 N. E. 961), is cited. In that case the court, in speaking of the rule which allows parol testimony to be introduced to explain a written contract, said:

“Two things, however, are essential to bring a case within this class: (1) The writing must not appear, upon inspection, to be a complete contract embracing all the particulars necessary to make a perfect agreement, and designed to express the whole arrangement between the parties, for in such case it is conclusively presumed to embrace the entire contract. (2) The parol evidence must be consistent with and not contradictory of the written instrument.”

The following cases in this court, also, are cited: Coots v. Farnsworth, 61 Mich. 497; Morris & Co. v. Lucker, 158 Mich. 518, 520; Sheffler v. Sherman, 167 Mich. 42; Foley v. Railway Co., 168 Mich. 496; Solomon v. Stewart, 184 Mich. 506 (Ann. Cas. 1917A, 942); Holland City State Bank v. Meeuwsen, 192 Mich. 326, 330.

Upon this question it is the claim of defendant’s counsel that the writing in this case is not plain and unambiguous, and that parol testimony was admissible to show what was the meaning and intention of the parties, and the following Michigan cases are cited: Powers v. Hibbard, 114 Mich. 533; Mathews v. Phelps, 61 Mich. 327, 332 (1 Am. St. Rep. 581); Switzer v. Pinconning Manfg. Co., 59 Mich. 488.

We are of the opinion that the contract is clear and unambiguous, and admits only of one construction. The check was intended to indemnify the sheriff, a public officer, in the replevin suit. To indemnify is to secure, to save harmless, from loss or damage. He had, at the request of the defendant in that suit (the plaintiff here), deferred the service of a writ of replevin. To save himself harmless he accepted this instrument. We think it was not competent to show by parol evidence that he received it for any other purpose than that of indemnity, and that the court erred in admitting such testimony. This contract cannot be reformed in this suit. The admission of such testimony and its submission to the jury constituted reversible error.

2. It is undisputed that the writ of replevin was never served. Instead of proceeding to serve the process in his hands, as a public officer, the sheriff deferred action thereon, and accepted the check to secure himself from any resulting damage. It is undisputed that he has not been damnified, nor has he sustained tiny loss in the premises. Instead of holding the check as security and indemnity, as was his plain duty under its terms,'he caused the same to be cashed, by indorsing it over and delivering it to the Flint Lumber Company, which company obtained the cash thereon, to the damage of the plaintiff herein. It is undisputed that later, and within a few days, a regular replevin bond was tendered by the plaintiff herein, to the sheriff, and the surrender of the check demanded, but refused.

In any view of the case which we are able to take, on the face of this record, a verdict and judgment should have been directed for the plaintiff for the amount claimed. The judgment below is reversed and a new trial granted with costs to appellant.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SANFORD v. BERTRAU.
    1. Husband and Wipe — Estates by Entireties — Land Subject to Levy.
    Land held by husband and wife as tenants by entireties is not subject to levy under execution on judgment rendered against either husband or wife alone.
    2. Same — Remainders—Survivorship.
    The right of survivorship is merely an incident of an estate by entirety, and does not constitute a remainder, either vested or contingent.
    3. Same — Joint Judgment — Land Subject to Levy.
    A judgment rendered against husband and wife jointly may be satisfied out of an estate in land held by them as tenants by entireties, independent of homestead and statutory exemptions.
    4. Execution — Joint ' Owners.
    Real estate owned jointly by individuals is subject to levy and sale upon an execution running against such owners jointly, in the absence of homestead and statutory exemptions.
    See notes in 9 L. R. A. (N. S.) 1026; 42 L. R. A. (N. S.) 555.

      5. Husband and Wife — Joint Judgment — Execution — Mabbied Women — Common Law Disability — Statutes.
    There is nothing in Act No. 158, Pub. Acts 1917, abrogating the common-law disability of married women in certain cases, to signify that a joint judgment against husband and wife in a suit based upon their fraud in the exchange of real estate may not he satisfied out of real estate held by them as tenants by entireties, independent of homestead and statutory exemptions.
    Appeal from Mecosta; Brown, J., presiding.
    Submitted October 10, 1918.
    (Docket No. 31.)
    Decided December 27, 1918.
    Bill by William M. Sanford and another against Louis F. Bertrau and another to quiet title to certain real estate. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Cogger & Cogger and Broomfield & Worcester, for plaintiffs.

      Travis, Merrick, Warner & Johnson (Butler & Everett, of counsel), for defendants.
   Stone, J.

The bill of complaint in this case was filed to remove an alleged cloud placed upon the title of certain real estate held by the entireties by the plaintiffs, by reason of the sale of the same upon execution in favor of the defendants herein, issued upon a joint judgment against the plaintiffs herein.

Counsel for plaintiffs and appellants state in their brief that the sole and only question presented is whether lands held by a husband and wife as tenants by the entirety are subject to levy and sale by virtue of a writ of fieri facias issued upon a joint judgment against husband and wife. The record shows that on January 7, 1918, in the circuit court for the county of Mecosta, in a suit at law involving the fraud of the defendants there pending, wherein Louis F. Bertrau and Mary A. Bertrau were the plaintiffs, and William M. Sanford and Mary J. Sanford were defendants, a judgment was duly rendered and entered in favor of said plaintiffs and against the said defendants for $5,832, with-costs of suit to be taxed; that after the rendition of the judgment, an execution was duly issued thereon and placed in the hands of the sheriff for service, and that on or about February 2, 1918, that officer, by virtue of said execution, made a levy upon the property described in the bill of complaint, and upon due notice sold the said premises on March 23, 1918, for the sum of $6,046.05 to the defendants herein, and gave to them the usual certificate of sale.

It is undisputed that the title of the plaintiffs herein to the real estate at the time of said levy was vested in them by virtue of a deed bearing date August 11, 1914, executed by Louis F. Bertrau and wife to said “William M. Sanford and Mary J. Sanford, his wife, jointly with the right of survivorship.”

In dismissing the bill of complaint upon the hearing, the learned circuit judge seems, by the record, to have been influenced somewhat by the fact that the judgment had been rendered in a case where the defendants (the plaintiffs here) had been charged' with fraud in obtaining title to the property levied upon, having in mind no doubt the rule that estates in entirety cannot be created at the expense of creditors, and held in fraud of their rights, as was held by this court in Newlove v. Callaghan, 86 Mich. 297 (24 Am. St. Rep. 123).

Upon this record, however, we think we should treat the case as one where a valid judgment had been obtained against husband' and wife, and where lands held by them as tenants by the entirety have been levied upon and sold by virtue of the execution. There is no homestead question here involved, the property levied upon and sold being business property, upon which were located a Store and other buildings. It is stated by counsel, and we think correctly, that this question is a new one in this State, in so far as the holdings of this court are concerned. It is well settled in this State that land held by husband and wife as tenants by entirety is not subject to levy under execution on judgment rendered against either husband or wife alone. The subject of estates by the entirety has been considered in many aspects by this court, as will appear by reference to the following cases, where the earlier decisions have been referred to. Vinton v. Beamer, 55 Mich. 559. In speaking of the estate this court said it was an entirety.

“They both took the same estate, the same interest, and it could not be separated. The right of the one was the right of the other. Neither could by a separate transfer affect the rights of the other, or his own. What would defeat the interest of one would also defeat that of the other.”

In Re Appeal of Nellie Lewis, 85 Mich. 340 (24 Am. St. Rep. 94), this court said:

“The estate created by this deed was not an estate in joint tenancy, but an estate in entirety. A joint tenancy implies a seisin per my et per tout, while an estate in entirety implies only a seisin per tout. 4 Kent. Comm. p. 362.”

See cases there cited.

Dickey v. Converse, 117 Mich. 449 (72 Am. St. Rep. 568). This, case reviews many of the earlier cases and is worthy of examination in this connection. Naylor v. Minock, 96 Mich. 182 (35 Am. St. Rep. 595). See, also, Morrill v. Morrill, 138 Mich. 112 (110 Am. St. Rep. 306, 4 Ann. Cas. 1100), where it is stated that the married women’s act is not applicable to estates by entirety, Justice Carpenter, in writing the unanimous opinion of this court, saying:

“I think it must be conceded that the decisions of this court have determined that this statute has no application to estates by entirety.” Citing numerous cases.

Many more cases, some of them still later in date, might be cited, but we think it unnecessary.

It is urged by counsel for plaintiffs and appellants that, before the death of either of the parties, each holds an estate similar in some respects to that of a contingent remainder, and that it has been held that a contingent remainder is not subject to execution. We think the better doctrine is that the right of survivorship is merely an incident of an estate by entirety, and does not constitute a remainder, either vested or contingent. Davis v. Clark, 26 Ind. 424 (89 Am. Dec. 471); Shinn v. Shinn, 42 Kan. 1 (21 Pac. 813, 4 L. R. A. 224).

It is also asserted by counsel that land held by entireties by husband and wife is not subject to an execution, and the following cases are cited: Carver v. Smith, 90 Ind. 222 (46 Am. Rep. 210); Dodge v. Kinzy, 101 Ind. 102. The first of these cases simply holds that land conveyed to husband and wife is not subject to the levy of an execution against either, while both are living. There the execution against the husband was levied upon the land. Nobody would dispute the correctness of that ruling. The case of Dodge v. Kinzy involved the question of a contract of suretyship of the wife, and her joining in a mortgage on property held by entireties, to secure the payment of an individual debt of the husband, and has no bearing upon the question we are discussing.

It is well settled that when a judgment is rendered against one of two tenants by entireties, a levy under execution on such judgment cannot be made on the real estate held by them as tenants by entireties. This is because of the peculiar nature of the estate held by them. Both are seized of the whole, and an estate by entireties is inseparable and cannot be partitioned. Therefore, it has been quite universally held that an estate by entireties cannot be sold upon execution on a judgment rendered against either the husband or wife, because neither has any separate interest in such an estate. But after diligent search by counsel, and by the writer of this opinion, a case has not been found which holds that an estate in land held by husband and wife as tenants by entireties is not subject to execution upon a judgment against them jointly. On the contrary, the few cases in which this question is presented hold that a judgment rendered against husband and wife jointly may be satisfied out of an estate in land held by them as tenants by entireties.

In Sharpe v. Baker, 51 Ind. App. 547 (96 N. E. 627, 99 N. E. 44), an action was brought by appellants, who were husband and wife, to quiet their title as tenants by entireties to certain real estate, and to eject appellees from the possession of said real estate. A joint judgment had been taken against appellants at a time when they were owners as tenants by entireties, of the real estate in controversy, and an execution was issued on said judgment against both of said appellants, and levied upon the estate so held by them as tenants by the entireties. Said land was regularly advertised and sold under said execution as the property of appellants, and appellees claimed title and possession to said real estate under and by virtue of a sheriff’s deed; while the appellants claimed that the estate held by them as tenants by entireties was not subject to sale on execution, and that the sheriff’s deed did not have the effect to divest their title, and that they were still owners of the real estate as tenants by entireties. We quote at length from the well-considered opinion of that court:

“The question we are thus called upon to decide is entirely new. The industrious and able attorneys, who have briefed this case and argued it orally before the court, have been unable to cite a case from any court in which the .question has been decided. The writer of this opinion has made diligent search in the hope of finding a decision of some court which might serve as a precedent, but without avail. We must therefore determine this question from a consideration of the legal principles which relate, to the creation of - estates by the entireties, and which govern the rights and liabilities arising therefrom as affecting the holders of such estates.
“It is claimed by appellants that the estate by entireties has been always regarded by the courts as one created for the enjoyment of the husband and wife during coverture, and that such an estate was intended to be preserved for the use of the family as a homestead, and that it should be protected by the courts against the improvidence of either or both, to the end that it may be so preserved. This contention has led us to inquire as to the source and origin of estates by entireties. At common law, such estates were treated as species of joint tenancy. 'An estate in joint tenancy is an estate held by two or more tenants jointly, with an equal right in all to share in the enjoyment of the land during their lives. Upon the death of any one of the tenants, his share vests- in the survivors.' * * *
“By a fiction of the common law, the husband and wife were regarded as one person; the legal existence of the'wife being suspended during coverture, or at least incorporated and consolidated into- that of the husband. Blackstone’s Comm., book 1, p. 442. Upon this legal fiction of the unity of husband and wife rests all of the distinctions and peculiarities which distinguish the estate by entireties from other joint estates. * * *
“By reason of the common law fiction heretofore mentioned, the husband and wife, being one person in law, were each incapable of holding any separate interest in an estate so acquired. * * *
“An estate in joint tenancy may be severed or destroyed by the act of one of the tenants, so as to defeat the right of survivorship of the other joint tenant; but a tenant by the entireties cannot during coverture, by deed, mortgage, devise, or other act of his own, defeat the right of the surviving husband or wife to hold the entire estate. * * *
“There may be other distinguishing characteristics of the estate to which we have not referred; but we think that we have gone far enough to show that every peculiarity incident to such estates, distinguishing them from estates in joint tenancy, can be traced to the fiction of the unity of husband and wife. * * *
“There is nothing in the manner in which such estates have been treated by the courts in later times to indicate that it was the policy of the courts to preserve them to the families. Before the married woman’s act, the husband during coverture had the right to the possession and control of the real estate owned by his wife, and this right was held to extend to land by entireties. (Citing cases.) As the husband was, before the married woman’s act, the absolute owner of the rents and profits of such estates during the joint lives of himself and his wife, this right, according to the weight of authority, could be sold on execution for his debts. * * *
“While the statutes of this State have removed most of the common-law disabilities of a married . woman, the common-law unity of husband and wife is preserved, in so far as that fiction is necessary to uphold the estate by entireties. * * *
“The estate by entireties was not created by statute in this State, but is preserved by statute as it existed at common law. It cannot, therefore, be inferred that the legislature, by the enactment of the statute preserving such estates, intended that it should be exempt from sale on execution to any greater extent than it was by the rules of the common law; but, as we have heretofore shown, the legislature by other statutes has so modified the common law in respect to the right of the husband to possession and usufruct of the separate estate of his wife as to make the husband and wife tenants by entireties in the possession and proceeds of the estate, as well as in the estate itself. * * *
. “From what has been said, we think it is apparent that an estate by entireties is subject to sale on execution, issued upon a judgment rendered against both the husband and wife, unless some reason can be found, arising out of the very nature of the estate, which prevents such a result. The reason that it cannot be sold in satisfaction of a judgment rendered against either of the tenants alone is apparent from the inherent nature of the estate. Neither owns any severable interest therein. But what reason can be suggested, growing out of the nature of incidents of the estate, which could prevent a sale on execution to satisfy a joint debt of both? By their joint deed, they can dispose of their estate, and by their joint mortgage they can incumber it. Jointly they have the complete ownership of the estate, with full power to control and dispose of it at will, and it is a general rule that property so owned is subject to sale on execution to satisfy a judgment against the owner. * * *
“In the case at bar, a personal judgment was taken against Finch Sharpe and, Mintie Sharpe upon a debt for which each were personally liable. The question of suretyship of the wife is not involved. The land sold on execution to satisfy this judgment was owned by the judgment debtors as tenants by the entireties. It is our opinion that the land so held by the judgment debtors was liable to be sold on execution to satisfy this judgment.” * * *

In 1915, the court of appeals of Maryland, in Frey v. McGaw, 127 Md. 23 (95 Atl. 980, L. R. A. 1916D, 113), a similar case, used the following language:

“On the third of April, 1913, a judgment was entered by confession in the Baltimore city court in favor of the appellees against George E. Frey and Jennie E. Frey, for the sum of $270. * * *
“At the time of the entry of this judgment George E. and Jennie E. Frey, his wife, owned as tenants by entireties, but subject to a mortgage, a leasehold lot of ground on Linden, avenue in the city of Baltimore. * * *
“The case as presented is entirely different from what it would have been if the judgment had been against either Mr. or Mrs. Frey alone. This arises from the peculiar nature of an estate by entireties. It has been repeatedly held in this State that where a judgment is recovered against one of two tenants by the entireties no lien can attach to the interest of one (citing cases) but it has never been held in this State or elsewhere that in the absence of statutory exemption, where there is an entire judgment against joint defendants, no lien is imposed upon estates or interests in land held by the entireties.”

In Union Nat. Bank of Muncie v. Finley, 180 Ind. 470 (103 N. E. 110), the supreme court of Indiana, in an action commenced by attachment against husband and wife, used the following language:

“The trial court held that the real estate owned by the Finleys as tenants by entireties is not subject to levy under an order of attachment, in a suit on_ an obligation of such husband and wife, and not subject to execution under a judgment against both. It is claimed by appellant that this holding was erroneous. The case of Sharpe v. Baker, 51 Ind. App. 547 (96 N. E. 627), involved the same principle here in controversy. In a carefully considered opinion, it was held by the appellate court that land held by husband and wife as tenants by entireties is subject to execution under a judgment against husband and wife. On petition to transfer the cause, the holding of the appellate court was approved by this court.
“Here the obligation sued on was executed by the husband and wife and judgment rendered against both, and under the doctrine declared in Sharpe v. Baker, supra, the land owned by them as tenants by entireties is. subject to sale on execution under the judgment; and it must necessarily follow that it is subject to levy under a writ of attachment, where there is statutory ground for such writ, in a suit on a note executed by the husband and wife, and for a consideration binding on both.” * * *

We find no cases to the contrary. Upon principle, we can see no reason why the real estate of husband and wife held by them as tenants by the entireties (independent of homestead and statutory exemptions) should not be subjected to the payment of their joint debts. They own the entire property. The parts cannot be greater than the whole. They may dispose of it by their joint action. Each is liable to pay the whole judgment, and both are liable to pay any part of it.

As a general proposition it may be said that real estate owned jointly by individuals is subject to levy and sale upon an execution running against such owners jointly, in the absence of homestead and statutory exemptions.

If defendants may own and hold this property free from execution, levy and sale for their joint debt, they may, by the same rule, own and hold millions of dollars worth of real estate free from such levy and sale for their joint debt. This rule ought not to obtain as one affecting real estate, unless there is some good reason for it; and we have been unable to discover any such reason. The policy of the law ought to prevent the tying up of vast amounts of real estate in this manner. We do not believe there is any good reason for the rule contended for by appellants.

Counsel for appellants have also called our attention to Act No. 158, Pub. Acts 1917. The title of that act is as follows:

“An act abrogating the common-law disability of married women insofar as to make and render them competent to bind themselves-and become liable with their husbands upon any written instrument, so as to subject the real estate of the husband and wife owned by them as tenants by entirety, or the real estate acquired by either as survivor of the other, and all crops, rents, profits or proceeds thereof or taken therefrom, to the payment and satisfaction of judgments and decrees of courts rendered upon such written instruments and providing for the enforcement of such liabilities, and to repeal all acts or parts of acts contravening the provisions of this act.”

We have examined the provisions of this act with great care, and are of opinion that it has nothing whatever to do with the present case.

Enough, appears in the record in this case to show that the action in which the judgment was rendered, which was the basis of this proceeding, was based upon the alleged fraud of the defendants in that suit (plaintiffs here), in the exchange of certain real estate. We find nothing in the act referred to, by implication or otherwise, to signify that the joint judgment against husband and wife in such a case could not be satisfied out of the real estate held by them as tenants by entireties.

We are of opinion that the decree of the court below in dismissing the bill was both legal and just. We believe the better doctrine is that a joint judgment against husband and wife may be satisfied out of real estate held by them as tenants by entireties; and for this reason the decree of the court below is affirmed, with costs to the appellees.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


author: Fellows, J.

text:
    GARD v. GARD.
    1. Marriage — Fraud—Annulment—Pregnancy.
    Where defendant induced plaintiff to marry her on the representation that he was responsible for her pregnancy, when in fact she was pregnant by another man, plaintiff is entitled to a decree annulling the marriage on the ground of fraud.
    2. Same — Appeal—Good Faith — Attorney’s Fees.
    Defendant’s appeal from the decree annulling the marriage having been prosecuted in good faith, the question being an open one in this State, she will be allowed $200 for attorney’s fees.
    See notes in 18 L. R. A. 375; L. R. A. 1916E, 650.

      Appeal from Berrien; Bridgman, J.
    Submitted October 16, 1918.
    (Docket No. 71.)
    Decided December 27, 1918.
    Bill by John Jay Gard against Margaret C. Gard to annul a marriage on the ground of fraud. Defendant filed a cross-bill for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      O’Hara & O’Hara, for plaintiff.

      Gore & Harvey, for defendant.
   Fellows, J.

Plaintiff, a young farmer about 29 years old, lives in Berrien county. Defendant, a woman 31 years old, resided in Chicago prior to her marriage to plaintiff. Plaintiff files this bill to annul the marriage between the parties on the ground of fraud in its procurement. Defendant denies the fraud, and, claiming the benefit of a cross-bill, asks for a decree of divorce. The prayer of plaintiffs bill was granted and defendant appeals. Without detailing the testimony it will suffice to state that from a careful perusal of this record we are convinced that the following facts are established beyond peradventure: (1) That the parties were married February 17, 1916; (2) That they had sustained illicit relations prior to marriage; (3) That the day before the marriage defendant came from Chicago to St. Joseph in this State, there met plaintiff by appointment and there falsely represented that she was pregnant by defendant, which representation was believed by plaintiff who married her to so far as possible repair his wrong; ("4) That defendant was delivered of a full-term child March 6, 1916; (5) That said child was not begotten by plaintiff but was the child of another man who was in the Philippines at the time defendant charged plaintiff with its paternity, and that defendant well knew this to be true; (6) That upon learning that the child was a full-term child and could not be his, plaintiff repudiated defendant and the spurious offspring and has not since lived or cohabited with her.

We therefore have before us for solution the question of whether a bill will lie to annul a marriage procured by the false representation of the wife before marriage that she is pregnant by the man she marries, which misrepresentation is known by her to be untrue, but is believed by the husband and the marriage relation is contracted in such belief, the parties theretofore having sustained illicit relations, when it is established beyond question as matter of fact that the child was begotten by a stranger. In Sissung v. Sissung, 65 Mich. 168, this court by an equal division sustained such a bill. Sylvester v. Sylvester, 180 Mich. 512, was also affirmed by an equally divided court; the court was not in accord upon the facts in that case. The precise problem before us must therefore be regarded as one not heretofore solved by this court. It has arisen in other jurisdictions and a want of harmony in these decisions directly and by analogy applicable is at once apparent to one who examines the cases.

In the early case of Reynolds v. Reynolds, 3 Allen (Mass.), 605, a case similar in principle to Harrison v. Harrison, 94 Mich. 559 (34 Am. St. Rep. 364), the libellant was induced to enter the marriage upon the representations that the woman was a chaste and virtuous woman, when as matter of fact she was pregnant of another. He had had no illicit relations with her. The court upon that state of facts speaking through Chief Justice Bigelow said:

“As has been already stated, one of the leading and most important objects of the institution of marriage under our laws is the procreation of children, who shall with certainty be known by their parents as the pure offspring of their union. A husband has a right to require that his wife shall not bear to his bed aliens to his blood and lineage. This is implied in the very nature of the contract of marriage. * * *
“A man therefore who has contracted a marriage with a woman under such circumstances, if he could not obtain a divorce on the ground of fraud, would be subjected to the painful alternative of disowning the child, and thereby publishing to the world the shame of her who was still to remain his wife, or suffer the presumption of legitimacy to stand, and admit the child of another to share in his bounty and receive support in like manner as his own legitimate children. There is no sound rule of law or consideration of policy which requires that a marriage procured by false statements or representations and attended with such results upon an innocent party should be held valid and binding on him.”

The court, however, did not have before it the precise .question here involved, viz.: what rule should be applied if the relations of the parties had been illicit prior to the marriage, and expressly reserved that question. In Foss v. Foss, 12 Allen (Mass.), 26, however, that question arose. This case is quite frequently cited as authority for. denying relief and is a leading case upon the subject. An examination of this case leads to the conclusion that the court was impressed that under the circumstances the libellant was not as vigilant as he should have been in ascertaining before marriage whether her representations were true. It is said:

“He took no steps to ascertain the truth of her statements concerning the paternity of the child, but, relying solely on her assurances on that subject, he entered into the contract of marriage. It seems to us that on these facts he was guilty of a blind credulity, from the consequences of which the law will not relieve him. His knowledge of the respondent’s unchastity and of her actual pregnancy was sufficient to put a reasonable man on his inquiry.”

It was followed in Crehore v. Crehore, 97 Mass. 330 (93 Am. Dec. 98), the opinion in which case in full is as follows:

“The facts show that the libellant had full knowledge that the libellee was unchaste, before he entered into the marriage contract, and was thereby put on his guard so that- he cannot allege that he was induced to contract the marriage by such fraud and deceit on the part of the libellee as will enable him to avoid the contract.”

• — and Foss v. Foss is cited as authority for the holding.

In the late case of Safford v. Safford, 224 Mass. 392 (113 N. E. 181, L. R. A. 1916F, 526), the same question again arose, and again upon the authority of Foss v. Foss, the relief was again denied, the court among other things saying:

“In view of the undisputed facts as disclosed by the record, it seems, plain that he is not entitled to a decree declaring the marriage void in the absence of evidence to show that he made any inquiry or investigation to ascertain the truth of her statement that he was the father of the child.”

These holdings of the Massachusetts court are noas persuasive to us as the holdings of that court usually are, due to the fact that this court has repeatedly held in cases involving fraud that it does not lie with one charged with fraud, who assumes to have knowledge of a subject of which another may well be ignorant, to claim that such other should have used greater diligence to discover the fraud, should have been more vigilant, less credulous. Eaton v. Winnie, 20 Mich. 156 (4 Am. Rep. 377); Smith v. McDonald, 139 Mich. 225; Yanelli v. Littlejohn, 172 Mich. 91; Lewis v. Jacobs, 153 Mich. 664; Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406); John Schweyer & Co. v. Mellon, 196 Mich. 590; Johnson v. Campbell, 199 Mich. 186.

In Carris v. Carris, 24 N. J. Eq. 516, the New Jersey court had before it a case upon the facts similar to Reynolds v. Reynolds, supra, and it was disposed of in the same manner, the court saying:

“The fraud charged in this case is extraordinary, peculiar, and of the most flagrant character, entering into the very essence of the contract, and if allowed to succeed, either compelling the husband to disown the child for his own protection, or imposing upon him the necessity of recognizing and maintaining the fruit of his wife’s defilement by another, and having it partake of his inheritance. In either event, shame and entire alienation are the inevitable consequences. Surely, there can be no good policy in such action as will either compel parties to live together under these circumstances, having only the shadow of marriage, or compel them, as would be more likely, to live totally separated, a continual annoyance to each other, and a source of the greatest unhappiness. If the contract is repudiated as soon as the fraud is discovered, so that there is no acquiescence in it, good morals and the protection of the integrity of the marriage relation require that an innocent man should be relieved from so great a fraud.”

In Seilheimer v. Seilheimer, 40 N. J. Eq. 412 (2 Atl. 376), and Fairchild v. Fairchild, 43 N. J. Eq. 473 (11 Atl. 426), that court had before it the question here involved. In both cases the parties had sustained illicit relations before marriage, and in both cases the woman had represented that she was pregnant by the man induced to marry her when in fact she was pregnant by another. In both cases the relief was denied. Both cases seem to go upon the theory that the parties were in pari delicto and must abide the consequences.

The forceful language of Mr. Justice Field, then a member of the supreme court of California and later Justice of the Supreme Court of the United States, in the case of Baker v. Baker, 13 Cal. 87, may well be considered. He said:

“A woman, to be marriageable, must, at the time, be able to bear children to her husband, and a representation to this effect is implied in the very nature of the contract. A woman who has been pregnant over four months by a stranger, is not at the time in a condition to bear children to her husband, and the representation in this instance was false and fraudulent. The second purpose of matrimony is the promotion of the happiness of the parties by the society of each other, and to its existence, with a man of honor, the purity of the wife is essential. Its absence under such circumstances as necessarily to attract attention must not only tend directly to the destruction of his happiness, but to entail humiliation and degradation upon himself and family. We can conceive no torture more terrible to a right-minded and upright man than an union with a woman whose person has been defiled by a stranger, and the living witness of whose defilement he is legally compelled to recognize as his own offspring, as the bearer of his name and the heir of his estate, and that, too, 'with the silent, if not expressed, contempt of the community.”

Later, however, the supreme court of California in Franke v. Franke had before it a case where illicit relations had been indulged in prior to the marriage. The wife was pregnant of another at the time of the marriage. The opinion is not reported in the official reports of the court (see 96 Cal. XVII) but is found in 31 Pac. 571 and 18 L. R. A. 375. An examination of the opinion discloses that the husband was a man of 40 years, father of five children by a former wife, who claimed he was seduced by a 17-year-old girl, daughter of a neighbor, and who married the girl to avoid a lawsuit, and rather than “give money away,” and with the further assurance from the attorney of the girl that if the birth of the child did not correspond with “plaintiff’s reckoning” he would get him free “without a cent.” Under these facts the relief was denied.

Let us now turn to the North Carolina cases. The case of Scroggins v. Scroggins, 3 Dev. (N. C.) 535, is a much cited case. It was written in 1832 when that court was made up of Henderson, Ruffin and Daniel, and the great learning of these eminent jurists entitles it to more than ordinary consideration. In that case the child born to the woman was a mulatto and could not have been begotten by the husband; the birth occurred about five months after the marriage; the relief was denied. But the force of the opinion is minimized if not entirely negatived by the case which follows it in the same volume, that of Barden v. Barden, 3 Dev. (N. C.) 548, decided at the same term. In that case the man was induced to marry a woman, with whom he had been intimate, upon the representation that a child she had was his; the child was the offspring of a negro and the relief was granted. By way of explanation it was said that the case was a concession to the “deep-rooted prejudices” of the community on the subject. It may be well to understand the legislative policy of that State upon the subject of marriage and divorce at the time the Scroggins Case was written. An examination of the legislation of the State indicates a strong inclination to regard the marriage relation as indissoluble. The act of 1827, before the court in the Scroggins Case, contained some general language considered fully by Mr. Justice Ruffin, but specifically enumerated but two grounds of divorce, being the same grounds found in the act of 1814, viz.: (1) impotency at the time of the marriage and still continuing: and (2) separation by one party from the other and living in a State of adultery. That the legislative policy was deliberate and fixed is evidenced by the further fact that although the court called attention of Hie legislature to the construction put upon the added general words of the act of 1827 no change was made for nearly half a century and it was not until 1871 that adultery, unless amounting to lewd and lascivious cohabitation, was made grounds of divorce. That the courts followed the legislative policy is evidenced by the case of Moss v. Moss, 2 Ired. (N. C.) 55, where the court declined to dissolve the marriage, even though the wife was living in open adultery with another; the court basing its decision on the ground that the husband had without cause driven the wife from his home without providing for her support and had thereby submitted her to the temptations to which her weakness and necessities exposed her. Indeed in the Scroggins Case it clearly appears that the court viewed the rules of the ecclesiastical law as preferable to the common law, as it was expressly stated that, “There is no member of the'court who is not strongly impressed with the conviction that divorces ought in no cases be allowed, but in that already mentioned (impotency) and near consanguinity.” It was in this atmosphere that Scroggins v. Scroggins was written. The North Carolina court has followed it but not without dissent; see Long v. Long, 77 N. C. 304 (24 Am. Rep. 449); Bryant v. Bryant, 171 N. C. 746 (L. R. A. 1916E, 648, 88 S. E. 147). Whether the legislative policy of that State is better than the legislative policy of this State is a question upon which publicists may differ, but it is not a question for our solution.

In Scott v. Shufeldt, 5 Paige (N. Y.), 43, the marriage was procured on the representation that the child was the child of the husband. Both the husband and wife were white. The child was a mulatto and could not have been begotten by the husband. It was held that if the husband married in the belief that the child was his the marriage should be annulled on the grounds of fraud.

Three courts of last resort have recently spoken on this subject with definiteness and precision upon facts substantially on all fours with the instant case. Lyman v. Lyman, 90 Conn. 399 (L. R. A. 1916E, 643, 97 Atl. 312); Di Lorenzo v. Di Lorenzo, 174 N. Y. 467 (67 N. E. 63, 63 L. R. A. 92, 95 Am. St. Rep. 609); Wallace v. Wallace, 137 Iowa, 37 (114 N. W. 527, 14 L. R. A. [N. S.] 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761). In two of these cases the opinion by Mr. Justice Morse, concurred in by Mr. Justice Campbell, in Sissung v. Sissung, supra, is expressly approved. In Lyman v. Lyman, supra, the court, after quoting from that opinion, says:

“We can conceive of few graver frauds than this, nor one which, if successful, is attended with more serious results; and we can see no good reason why, if the essentials of a fraud, as respects the representations by the one party and the reasonable reliance thereon and action induced thereby by the other, are present, the one thus defrauded should be compelled to endure in silence the situation which has thus been brought upon him, with all the consequences that it entails, and all by reason of his efforts to play the manly part and repair his supposed wrong to the best of his. ability. That seems to us to be imposing a grievous punishment for a purely laudable action. The punishment attaches to the marriage, and not to the earlier impropriety, and subjects a man to penalties for an act which had in it no semblance of wrongdoing, either legal or moral.
“In view of the new trial which must be ordered and the prominence which has been given to the opinion in Foss v. Foss, supra, and to the subordinate propositions it advances, we ought to add that we are unable to agree with that case in all of its subordinate propositions, or with its ultimate conclusion as to the duty, in the matter of independent and searching investigation, of a man in the position that Foss and this plaintiff found themselves when the partners in their illicit relations made to them the representations they did as to their pregnancy and the paternity of their children before being justified in accepting those representations, as true and acting upon them.”

In Di Lorenzo v. Di Lorenzo, supra, the facts do not as fully appear as they do in the report of the case in the appellate division (see 71 App. Div. 509, 75 N. Y. Supp. 878). From the facts it appears that defendant’s equities were much greater than in the instant case. In the unanimous opinion of the court of appeals it was said:

“In this case, the representations of the defendant was as to a fact, except for the truth of which the necessary consent of the plaintiff would not have been obtained to the marriage. It was designed to create a state of mind in the plaintiff, the operation of which would be to yield a consent to marry the defendant, in the belief that he was rectifying a great wrong. The minds of the parties did not meet upon a common basis of operation. The artifice was such as to deceive a reasonably prudent person and to appeal to his sense of honor and of duty. The plaintiff had a right to rely upon the defendant’s statement of a fact, the truth of which was known to her and unknown to him, and he was under no obligation to verify a statement, to the truth of which she had pledged herself. It was a gross fraud and, upon reason, as upon authority, I think it afforded a sufficient ground for a decree annulling the marriage contract. The jurisdiction of a court of equity to annul a marriage, for fraud in obtaining it, was early asserted in this State by the court of chancery, at a time when the limited powers of courts of law were inadequate for the purpose. This jurisdiction was expressly rested upon the general power to vacate contracts in all cases, where they had been procured by fraud. From this general jurisdiction of equity a contract of marriage was not regarded as being excepted, when the assent to it was the result of artifice, or of gross fraud.”

In the case of Wallace v. Wallace, supra, the supreme court of Iowa, speaking through Chief Justice Ladd, and considering the claim that prior relations barred the relief, said:

“But this would leave the unsophisticated and unwary without protection and condemn him who, with the best of motives, undertakes reparation for his supposed victim and compel him to suffer the consequences and burden of her deception. If the proof be of that character exacted in such cases, there can be no objection on grounds of public policy to granting a decree of divorce whenever it is made to appeal that the wife at the time of her marriage was pregnant by another than her husband, of which fact he was unaware. As said by Morse, J., in the Michigan case:
“ ‘The essence of the marriage contract is wanting when the woman at the time of its consummation is bearing in her womb knowingly the fruit of her illicit intercourse with a stranger; and the result is the same whether the husband is ignorant of her pregnancy and believes her chaste, or is cognizant of her condition, but has been led to believe the child is his.’ ”

The court then considers the rule permitting proof as to illegitimacy of children born in lawful wedlock, a rule this court has recognized, at the same time holding that the proof must be convincing (People v. Case, 171 Mich. 282), and continues:

“Inquiry is permitted into the parentage of children born in wedlock, and inquiries into the paternity of a child begotten prior thereto can be fraught with no greater danger to the parties interested, to society, or the State. On the contrary, it may operate to shield the confiding who, though guilty of moral wrong, has not violated the law, and has acted with the best of motives in entering into the marital relation, induced by deception and fraud. Because of this he ought not to be condemned to consort with her whose dupe and victim he is proved to be during life and to bear the burden of supporting her spurious offspring.”

We have considered the decisions of the various States to which our attention has been challenged in the briefs together with such as our time for independent research would permit, where the question has been presented with any degree of frequency or considered at length. Many other cases bearing either directly or indirectly on the subject have also been examined, among them being Morris v. Morris, Wright (Ohio), 630; Hoffman v. Hoffman, 30 Pa. St. 417; Todd v. Todd, 149 Pa. 60 (17 L. R. A. 320, 24 Atl. 128); Allen’s Appeal, 99 Pa. 196 (44 Am. Rep. 101); Ritter v. Ritter, 5 Blackf. (Ind.) 81; Steele v. Steele, 96 Ky. 382 (29 S. W. 17).

We are persuaded that we should adopt the doctrine advanced by Justices Morse and Campbell in Sissung v. Sissung, supra, and the three recent cases heretofore adverted to. That this plaintiff has been defrauded, deceived and tricked into this marriage we entertain no doubt. It is intolerable to believe that he should be compelled to continue through life as the husband of defendant, caring for, as his own, this bastard child of another, with its constant reminder of his wife’s perfidy before marriage, because in attempting to right a supposed wrong he entered into the contract of marriage. That a man may have a true parental affection for the child that sprang from his own loins even though conceived before marriage is natural; but, that he should have such affection for one that sprang from the loins of another man and was foisted upon him by a designing woman is unbelievable. It has been said in many of the cases cited that one of the great purposes of marriage is procreation. It is evident that a wife pregnant by another cannot carry out that purpose and hence that purpose of marriage must fail. All true, but there are other purposes of marriage beyond the perpetuation of the species. One of the purposes is the maintenance of the sacred institution called home. It has been said that there are three parties to the contract of marriage, the two contracting parties and the public. Can it be that a wise public policy requires in the name of home the maintenance by the husband of an establishment presided over by one who has deceived him as to the paternity of the little one who daily sits at his board, who bears his name, who will in the absence of testamentary disposition inherit his property, the offspring of another, a stranger to his blood? Most assuredly not. We do not palliate plaintiff’s infraction of the moral code. Society will visit its penalties upon him. We are not the keepers of his conscience or the censors of his morals. We can only administer the law, imposing penalties only that are imposed by the law, granting relief only as the law affords relief. Under the law this plaintiff is entitled to be relieved from this contract of marriage, procured by fraud, and a fraud well calculated to deceive under all the facts in the case, and which did deceive the plaintiff and caused him to do the only thing an honorable man could do after his transgression of the moral code with its supposed result.

We do not overlook the claim most earnestly pressed by defendant’s counsel at the argument and in the brief that during the acquaintance of the parties defendant informed plaintiff that she had had intercourse with another. It is urged that this should have prompted more vigilance on the part of plaintiff. We have already called attention to the holdings of this court upon this subject, and certain facts to which we shall presently refer will demonstrate that the circumstances would readily prompt a reasonably prudent man to believe defendant’s claim as to the paternity of the child. If plaintiff was seeking annulment of the marriage on the sole grounds of want of chastity of his wife he could not successfully assert he had been defrauded if he had knowledge on the subject before the marriage. Nor under the authorities could he assert her want of chastity as grounds of annulment, where he himself had been a party to her unchaste conduct. The gist of the action here, the right to relief is based upon the ground that she has falsely represented herself to be pregnant by plaintiff, when as matter of fact she was pregnant by another; as was said by the supreme court of Texas in McCulloch v. McCulloch, 69 Tex. 682 (5 Am. St. Rep. 96, 7 S. W. 593):

“It is settled law that the husband cannot have the marriage annulled because the wife was with child by him at the date of the marriage. If a condition of pregnancy at that time is, under any circumstances, an impediment to marriage, it must be because it will impose upon the husband a spurious offspring.”

The plaintiff might have been willing to protect the woman with whom he had been intimate and who he supposed was pregnant by him, even though she had been unchaste before he ever saw her, but at the same time no right-thinking man would be willing to take as wife a woman pregnant by another.

Nor do we overlook defendant’s claim made in her testimony that plaintiff had agreed to marry her and that the marriage took place pursuant to that agreement rather than as a result of fraudulent statements. While she testifies that he spoke to her of love and “all that stuff,” and it is admitted that he addressed her in his letters as, “My dear Margaret,” it is a significant fact that none of the letters passing between them were preserved by either party. Their correspondence seems to have been somewhat desultory, their meetings and illicit relations infrequent until the occasion when defendant claims the child was begotten, and which must have been some time after she became pregnant, if the child was a full term child as testified to by the physicians and as we believe it was. On July 17, 1915, defendant came over from Chicago. She telephoned plaintiff and he came down and met her at the hotel. It is admitted by both that, they sustained illicit relations that evening. Shortly thereafter they went on a camping trip together at. Stevensville near the lake. Here they lived together in a tent for about a week, without a chaperon, and. apparently without restraint. Defendant was then pregnant by another man. She returned to Chicago and there is no testimony from her or any one else that she ever claimed plaintiff was the father of her child until the occasion of her trip to St. Joseph the following February, which was about three weeks before her confinement. In view of the relations of the parties during the previous summer it is not to be wondered that plaintiff accepted at par defendant’s claim that he was the father of her unborn child, and married her the following day to so far as possible right the wrong he supposed he had inflicted upon defendant, and to give his name to the child he supposed to be his. We are satisfied that there was no promise of marriage, no thought of marriage between them until this February meeting. Defendant’s claim in this regard does not ring true.

It follows from what we have said that the decree of the court below must be affirmed. The appeal has been prosecuted in the utmost of good faith. The question was an open one in this State. Defendant had the right to take the judgment of this court upon it. An allowance of $200 for her attorney fees will be made. Frith v. Frith, 18 Ga. 273 (63 Am. Dec. 289). The calendar entries in the record indicate that the cost of transcript and printing the record has already been provided for. If not it may be brought up on the settlement of the decree.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.


text:
    MARUSSA v. TEMEROWSKI.
    1. Specific Performance — Vendor and Purchaser — Equity—Decree for Damages.
    In a suit for specific performance of a land contract, where plaintiffs were entitled to a decree, hut defendants could not perform because the premises involved had been sold to a tona fide purchaser, a decree for the amount of plaintiffs’ damages, held, equitable and should be affirmed, on appeal, unless there are insuperable legal objections:
    2. Appeal and Error — Saving Questions for Review — Conditional Decree.
    Where objection was made to the admission in evidence of a land contract, in a suit for specific performance, because the specific tax provided for by Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.), had not been paid, but the court did not dispose of the question, suggesting that it might be brought up again, which was not done, this court will require the payment of the tax as a condition of affirmance of the decree.
    Appeal from Wayne; Chester, J., presiding.
    Submitted October 23, 1918.
    (Docket No. 103.)
    Decided December 27, 1918.
    Bill by Boleslaw Marussa and another against Frank Temerowski and others for the specific performance of a land contract. From a decree for plaintiffs, defendants appeal.
    Affirmed, conditionally.

      William Friedman, for plaintiffs.

      Anthony Nelson, for defendants.
   Fellows, J.

On the 2d day of September, 1913, defendants as vendors and plaintiffs as vendees entered into a land contract for the sale of the premises located at No. 1621 Jos. Campau Street, in the city of Detroit. The contract was in the usual form. The purchase price was $4,200, of which $1,000 down payment was acknowledged. Interest was to be paid semi-annually, December 10th and June 10th of each year; $100 on principal was due and payable at each interest period with the privilege of paying more, and the whole sum was payable in five years. There was a mortgage on the premises held by the Union Trust Company for $1,500. December 10th following, $73.05 was paid; this slightly exceeded the interest then due; $96 was paid June 10, 1914. Some time in May or June, 1914, the store building on the premises was practically destroyed by fire. The adjustment of the insurance does not appear to have been completed until the following fall when a check of the insurance company for $1,884.77 was turned over to the trust company. It deducted the amount due on its mortgage, $1,531, and the balance of $353.77 was applied on the land contract and a receipt therefor given. To this point the parties seem to be agreed as to the facts.

From this point on there is a decided conflict in the testimony, which largely revolves around the question of whether a forfeiture of the contract had been declared. We are clearly satisfied, however, that the parties themselves treated the contract as fully in force and binding upon them; that the defendants personally never took any steps to forfeit it, and regarded it as in force. Mrs. Temerowski, who appears to have acted for herself and husband, was called as an adverse witness under the statute and cross-examined at some length. Her testimony in many regards is unsatisfactory and not convincing. She does, however, testify that this transaction was a loan and frequently speaks of it as a mortgage. She says: “What I wanted to get was six per cent, interest on my money, and so long as I got my six per cent. I was satisfied.” Whatever steps were taken looking to the forfeiture of the contract were taken by a man named Dornzalski, a real estate agent, who seems to have acted for the defendants in loaning money. His testimony conflicts with that given by the plaintiffs in material matters ; it is also self-contradictory and differs from that given by Mrs. Temerowski in some regards. That he was desirous of forfeiting this contract is apparent as he had a cash customer for the premises at a sum considerably in advance of the amount due on the contract. He sent to plaintiffs by registered letter notice of forfeiture of the contract but the letters were not received by them and were returned to the writer. He commenced proceedings to recover possession before a circuit court commissioner and secured a judgment for restitution, but it is admitted plaintiffs were not personally served, and we are satisfied knew nothing of the proceedings. Other claimed attempts to forfeit the contract are denied by the plaintiffs. It is not seriously disputed but that a tender was made to Mrs. Temerowski of $1,470, the amount due on the contract, and a demand made for a deed and abstract, which was contracted to be furnished. Whether the money to make the tender was furnished by plaintiffs themselves or was advanced by one who expected to purchase of them after they had acquired title is unimportant. The abstract was then in the hands of Domzalski and it is quite probable he at that time had a power of attorney to transact business for the defendants. Shortly after the tender, the premises were sold by the defendants through Domzalski to defendant Krause for $2,400. Mrs. Temerowski testifies they only received $1,600 of this sum, the balance being retained by Domzalski. Domzalski denies this, but is unable to tell either from his books or his memory how much he got out of the transaction.

The bill as filed originally, as appears from the files in the clerk’s office, was against defendants Temerowski alone. The relief sought was specific performance. Later the sale of the property to Krause was learned and the amended bill making him a party was filed. Outside the question to which we shall presently refer, the questions involved must be determined upon disputed and conflicting testimony. Time was not made the essence of the contract, and the question here is not so much a question of whether there had been default in some of the provisions of the contract, as it is whether there had been a, forfeiture of the contract, and whether the parties themselves did not treat the contract as in full force until Domzalski found a customer at a price nearly $1,000 above the amount due on the contract. The trial judge was of the opinion that plaintiffs had made a case for specific performance against defendants Temerowski, and that defendant Krause was a bona fide purchaser of the premises. With both of these conclusions we agree. The defendants Temerowski, having parted with their title to the premises, could not specifically perform their contract with plaintiffs. The court therefore entered a decree for the amount of their damages. We do not understand it to be claimed that such a decree was not proper under the findings of the court. Nor is it pointed out, and we do not discover, that it is incorrect in amount. The court, having acquired jurisdiction of the case and the parties, should dispose of the controversy. The decree was a most equitable one. Unless there are insuperable legal objections it should be affirmed.

When plaintiffs’ counsel offered the contract in evidence it was objected to by counsel for defendant Krause. The ground of objection being that the specific tax provided for by Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.), had not been paid. There was some discussion of the question, but the court did not dispose of it and suggested that it might be brought up again. The record does not disclose that the attention of the court was again challenged to it. It is here urged by the appealing defendants that the court should have declined to receive the contract in evidence and that the decree based upon it should not stand. Plaintiffs are seeking the enforcement of this contract and we are not here concerned with the question of which party should pay the specific tax provided for in this act; nor have we a case before us where the court Has finally decided against objection that an instrument within the purview of that act is admissible in evidence without the payment of a specific tax, and that it furnishes the basis for affirmative relief. Undoubtedly, had the objection been insisted upon, the trial court on the authority of Nelson v. Breitenwischer, 194 Mich. 30, would have required the payment of the specific tax before the case was proceeded with. In Lake Erie Land Co. v. Chilinski, 197 Mich. 214, we declined to. consider this question where it was raised for the first time in this court in a reply brief. Here the point was made in the court below but the decision of the question was postponed. We think under the circumstances the tax should be paid as a condition of affirmance of the decree, and that the case should not be reversed on this question alone.

The decree of the court below will be affirmed on the payment of the specific tax within 30 days, otherwise it will be reversed. No costs will be allowed.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.


author: Fellows, J. Brooke, J.

text:
    CZARNISKI v. SECURITY STORAGE & TRANSFER CO.
    1. Negligence — Personal Injuries — Children — Question eor Jury.
    In an action for injuries to a 5-year-old girl caused by defendant’s moving van running over ber hands, evidence that the van had stood for three hours while being loaded, that in the meantime plaintiff and other children were playing around it and in the yard, that defendant’s servants, without any attempt to discover the whereabouts of the children or whether they were dangerously situated with reference to the van, started it while plaintiff was under it getting a ball, held, to present a question for the jury as to defendant’s negligence. Ostrander, C. J., and Brooke, J., dissenting.
    2. Same — Unanticipated Act — Liability.
    Where an accident results from the sudden and unanticipated act of a child of immature years which could not be foreseen or guarded against, there is no liability.
    Error to superior court of Grand Rapids; Dunham, J.
    Submitted October 16, 1918.
    (Docket No. 55.)
    Decided December 27, 1918.
    Case by Katie Czarniski, an infant, by her next friend, against the Security Storage & Transfer Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Hatch, McAllister & Raymond, for appellant.

      Smedley & Linsey, for appellee.
    Defendant owns and operates moving vans in the city of Grand Rapids. One Jankowski, who lived at 348 Indiana avenue, employed it to do his moving. Mike Czarniski lived at 346 Indiana avenue. Plaintiff is his daughter aged about five years. The distance between the two houses is about eight feet. Defendant’s moving van was backed into this space handy to the Jankowski’s front porch and the household effects of that family were loaded into the van. It took about three hours to do this work. During this period plaintiff and five other small children of the two families were playing about the van, in front of the house, and in the back yard. The back yard was a small space about 30 or 35 feet wide and 43 feet long. When the work of loading the van was completed the driver and his helper got up on the seat in front, but under the cover and within the sides of the van. Neither of them was produeéd as a witness although their absence was excused. One of them was in the army, and the other could not be found when service of subpoena was attempted. The only eye-witness to the accident was a brother of plaintiff, a lad about 11 years old. He testified that the driver and helper rolled cigarettes and lighted them before driving out of the yard. The questions asked him by both counsel were quite leading, and in answer to such questions he stated at one time that this occurred after they were up on the seat, and at another, that it occurred before they got up on the seat. The children were playing ball in the back yard and the ball had rolled under the van. Plaintiff went under the van to get it. Her brother, seeing her danger, testifies he “hollered” to her. As she was coming out on her hands and knees the van started, the back wheel going over both her hands, dismembering the little finger on one of them, and seriously injuring both. Plaintiff had verdict and judgment and defendant brings the case here for review.
   Fellows, J.

(after stating the facts). It is most strenuously urged by defendant’s counsel that a verdict for the defendant should have been directed; that the evidence made no jury question of negligence of defendant’s employees; and that in any event error was committed in failing to instruct the jury as requested.

The plaintiff at the time of the accident was but five years old. Her movements were controlled more by the caprice of childhood than the exercise of judgment.

“Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly.” Powers v. Harlow, 53 Mich. 507.

The case before us is novel and differs from Powers v. Harlow, supra, Anderson v. Newport Mining Co., 202 Mich. 204, and kindred cases. There is no question but that plaintiff was lawfully upon the premises, nor was the accident occasioned by an instrumentality naturally calculated to attract children. Cases of the line above noted may therefore be dismissed from our consideration and makes it necessary in a considerable degree to seek our authorities outside of those cited in the brief; authorities which by analogy are applicable, however, are not wanting.

In the case of Oster v. Traction Co., 195 Pa. 320 (45 Atl. 1006), a child six years and eleven months old had been run over in the street adjoining a schoolhouse. The motorman saw children in the streets. The court said:

“He knew the school house was there, and seeing the children in the road was notice to him that it was recess, or, at least, that the school was not in session. These circumstances put on him the duty of at once getting his car under special control. Whether he did all that was reasonably proper for that purpose was necessarily a question for the jury. The cases of this kind, where it is for the court to direct the verdiet, are confined to those in which the uncontested evidence leads to the conclusion that the child ran in front of the car so quickly and under such circumstances that the driver or motorman had no reasonable ground to apprehend such action, and no time after it to avoid the collision.”

In Paducah Street R. Co. v. Adkins’ Adm’r, 14 Ky. L. Rep. 425, the decedent was five years and four months old. He, with other children, were in the street as defendant’s street car approached. He broke away from the others and ran across the street in front of the approaching car, then turned around and in an attempt to run back was struck by the car, causing his death. In disposing of the case the court said:

“Whether the child had, just before it was struck, run across the track, and whether from that circumstance the motorman should have anticipated that he would turn and attempt to re-cross, and whether, after thus seeing the danger which the child was about to place himself in, he could, with the appliance at his command, have stopped, or so retarded the speed of the cars as to have avoided injuring the child, were proper questions for the jury. Therefore, following the rules so often laid down by the court of appeals, and which show such a reluctance to withdraw from the jury cases presenting questions of negligence, we cannot say that the court erred in refusing the peremptory instruction.”

It is not necessary that we subscribe to all that was said in this case; it is illustrative, however, of the tendency of the courts to require a high degree of care for the protection of those of tender years and immature judgment.

In Citizens’ Passenger R. Co. v. Foxley, 107 Pa. 537, the child, aged four years, was injured in the street by a horsecar of the defendant. There was some testimony that the driver was conversing with some one on the platform and was inattentive to the track in front of him. In holding that a case was made for the jury the court-said:

“The parties were equally privileged in the use of the highway, and it was the duty of the defendant’s driver, in the enjoyment of his right, to exercise ordinary and reasonable care for the safety of such as he might meet or pass on the way. Whether, if his attention had been wholly given to his business, he might have seen the child in time to avert the injury was, under all the circumstances, clearly for the consideration of the jury. The child, at the time of the injury, being of the age of four years only, no question of contributory negligence can arise.”

In Hearn v. Railroad Co., 34 La. Ann. 160, the driver on a street car drawn by a mule had stopped the car, set his brakes and gone to the rear to drive off some boys who were jumping on the steps. While he was gone, deceased, a child of 22 months, came from the front steps of her home where she had been left, and was at the front legs of the mule when the driver returned. She was not where she would be seen by the driver, and she had not been playing in the streets. He started the mule forward, and the child was killed. It was held under these facts no negligence was proven. But the same court in the later case of Barnes v. Railroad Co., 47 La. Ann. 1218 (17 South. 782), had before it an injury to a 3-year-old child in a public street. There was evidence that the motorman was making change for a passenger and was not attentive to the track ahead of the car. In deciding the case the court quoted the following from Gallaher v. Railroad Co., 37 La. Ann. 288:

_ “If the accident happen from a sudden and unanticipated act, which is the result of the thoughtless impulse of a child, of which human forethought could not be prescient, no liability attaches to the driver or to his employer.”

And then said:

“The rule thus formulated is undeniably correct, and does not differ from the rule we have quoted from Thompson and Beach. But is this one such a case? Evidently not. For instead of the motorman of defendant’s car being on the lookout while his car was slowly descending the switch to the main track, propelled by its own momentum, he was engaged in making change for a passenger; and, in consequence of his attention having been thus diverted, he failed to observe the perilous situation of the child in time to arrest the progress of the car, and prevent the happening of the untoward event.”

In Passamaneck’s Adm’r v. Railway Co., 98 Ky. 195 (32 S. W. 620), the child killed was but 16 months old. After considering the authorities the court said:

“If the driver of the car could have discovered the presence- of the child on the track, by proper care and diligence, in time to have avoided the injury, it was his duty to do so. If he failed to do this, then the contributory negligence of the parents, if they were guilty of any, was canceled by the negligence of appellee’s servant.
“A greater degree of vigilance and caution must be observed in controlling the movements of street cars, to prevent injuries to children, than is required for the safety of adults not laboring under disabilities.”

In Rosenkranz v. Railway Co., 108 Mo. 9 (18 S. W. 890), the child was four years old. Holding that a case was made for the jury the court said:

“The street was a public highway open to the use of all persons, children as well as adults, at all places and not alone at intersections and crossings of other streets. This point on the street being much frequented by children demanded the greater vigilance on the part of the driver, and the fact that it was growing dark did not release him from watchfulness and caution, but rather demanded increased vigilance.”

See, also, Levy v. Railroad Co., 12 N. Y. Supp. 485; Healy v. Johnson, 127 Iowa, 221 (103 N. W. 92); Bergen County Traction Co. v. Heitman’s Adm’r, 61 N. J. Law, 682 (40 Atl. 651); Wallace v. Railway Co., 26 Or. 174 (25 L. R. A. 663, 37 Pac. 477); Zuponcic v. Brewing Co., 131 Minn. 112 (154 N. W. 790).

When we take into consideration all the facts and circumstances of this case; the fact that these six children of immature age were playing around this van, and in the front and small back yard during the three hours defendant’s agents were loading the van; that without any attempt to discover the whereabouts of the children, or to ascertain whether they were dangerously situated with reference to the van; that under one version of the transaction they remained under the cover of the van long enough to roll and light cigarettes and started without any outlook; the outcry of plaintiff’s brother; the immature age of the plaintiff with her childish instinct and impulses, which must have been known by defendant’s agents; when all these things are considered we are impressed that we cannot say as matter of law that a case was not made for the jury, or that the jury was not authorized in finding that the negligence of the defendant’s agents was the proximate cause of the injury. It was not error to refuse to direct a verdict.

While we are satisfied that the jury would be authorized in finding that defendant’s negligence was the proximate cause of the accident, we are also satisfied that the jury would be authorized in finding that the accident was due to the sudden, unanticipated and unforeseen act of the plaintiff in running after the ball and going under the van to get it. The defendant requested the court to charge the jury:

“5. In this case the defendant claims that the plaintiff and other children were playing ball in the back yard of the house where these goods were being moved out;'that after the van was loaded up the defendant’s servants got on the wagon to drive away and just at the time the driver was about to start the horses the ball was thrown by someone from the back yard and went under the back end of the van, and that this little girl, the plaintiff, suddenly and unexpectedly ran from the back yard to and under the back end of the van to get the ball, and that her hands were caught under the back wheel, and that this was a sudden and unexpected act on the part of this child, which the driver did not anticipate.
“6. Now, I charge you as a matter of law that if this injury and accident was due to the sudden, unanticipated and unforeseen act of this child and the defendant’s agents did not know or did not have reason to anticipate that this plaintiff was going to suddenly run under the back of the wagon, she cannot recover in this case. The law does not impose any duty on another to guard against sudden, unforeseen and unanticipated acts of another.”

Other requests of similar purport to the sixth were also preferred. The trial judge gave the fifth request but refused the sixth and similar requests. In general terms he instructed the jury as to what constituted negligence. The fifth request stated defendant’s claim, the sixth stated the law applicable to such' claim. Where the accident results from the sudden and unanticipated act of a child of immature years which could not be foreseen or guarded against, there is no liability. Baldwin on Personal Injuries (2d Ed.), § 198; Hoover v. Railway Co., 188 Mich. 313; Eichkern v. Brewing Co., 181 Mich. 1; Greenberg v. Railroad Co., 35 App. Div. 619 (55 N. Y. Supp. 135); Callary v. Transit Co., 185 Pa. 176 (39 Atl. 813); Chilton v. Traction Co., 152 Pa. 425 (25 Atl. 606). The sixth request should have been given either specifically or in substance. It was not sufficient to give in general a definition of negligence. The court gave to the jury defendant’s claim. It was entitled to have this done if the facts justified it as they did in this case. It was also entitled to have the law applicable to such claim given to the jury. This was not done. For this error we are constrained to reverse the case. A new trial will be granted, with costs to appellant.

Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred with Fellows, J.

Brooke, J.

(dissenting). I am of opinion there was no evidence of defendant’s negligence and a verdict should have been directed.

Ostrander, C. J., concurred with Brooke, J.