author: Long, J.

text:
    Simons v. McDonnell.
    1. Mortgages — Foreclosure—Personal Liability — Pleadings.
    Where a foreclosure bill sets out in full the promissory note accompanying the mortgage in suit, and asks that defendant pay any balance remaining due thereon if the sale of the mortgaged premises should fail to produce sufficient to pay the debt, and that in such case complainant have execution for the balance, a decree declaring defendant personally liable for the payment of the amount found due is within the pleadings.
    2. Same — Form of Decree — Deficiency.
    A decree in foreclosure proceedings finding defendant personally liable for the payment of the amount found due, but not directing the payment of the balance, if any, after sale, is not open to the objection that it constitutes a decree for a deficiency before it is ascertained that a deficiency will exist.
    3. Same — Husband and Wife.
    Although a wife joins with her husband in the execution of a note and of an accompanying mortgage, no personal decree can be rendered against her in foreclosure proceedings, where she signed merely to waive her dower, having no other interest in the property.
    Appeal from ^Oakland; Smith, J.
    Submitted February 9, 1899.
    Decided July 11, 1899.
    Bill by David W. Simons'against Henry P. McDonnell, John J. McDonnell, Nelson K. Riddle, Patrick H. Monahan, and their respective wives, to foreclose a mortgage. From a decree for complainant, adjudging the named defendants personally liable for the payment of the debt, they appeal.
    Affirmed.

      Junius Ten Eyck (Alfred Lucking, of counsel), for complainant.

      Brennan, Donnelly & Van De Mark, for appellants.
   Long, J.

This appeal is taken by Henry P. McDonnell, John J. McDonnell, Nelson K. Riddle, and Patrick H. Monahan, four of the defendants, from a decree in a foreclosure case. The other four defendants in the bill are their respective wives.' The bill prays:

“And that the said above-named defendants herein pay ■to your orator any balance that shall remain due to your orator of the principal and interest of said note and indenture of mortgage, if the sale of said mortgaged premises as aforesaid fail to produce sufficient to pay the whole of said mortgage debt and the costs of this suit, and that in such case your orator have execution for the collection of such balance, and the costs thereon, according to the rules and practice of this court.”
The mortgage in suit was accompanied by a promissory note signed by all the defendants. This note is set out in the bill as follows:
“$13,000.00. Detroit, Mich., April 1, 1895.
“For value received, we severally and jointly promise to pay to the order of David W. Simons the principal sum of thirteen thousand dollars ($13,000.00) on or before the 20th day of January in the year nineteen hundred and two, without grace, with interest at the rate of six per cent, per annum from January 20, 1895, payable on the 20th day of July next and semi-annually thereafter until .the whole of said principal sum is paid,” etc.

The decree of sale recites that:

“ There is due to the complainant at this date upon the note and mortgage mentioned and set forth in the bill of complaint, for principal and interest, the sum of fifteen thousand seven hundred and six dollars and fifty-six cents; and that the said defendants, Henry P. McDonnell, John J. McDonnell, Nelson K..Riddle, and Patrick H. Monahan, are personally liable for the payment thereof,” etc.

It is contended that the decree finds that the four defendants who bring this appeal are personally liable for the whole amount of the mortgage debt, and therefore for any unpaid balance remaining after the sale of the property to satisfy the mortgage. It is therefore contended:

1. That, under the pleadings, the court had no jurisdiction to enter a personal decree at any time.

2. That the personal liability of the defendants could not be established, at any rate, in the original decree of foreclosure'and sale.

3. That, inasmuch as the complainant asked the court to decree that all the defendants pay any balance remaining unpaid upon the sale, the court had no power to enter a decree against any number of the defendants less than all.

We think the averments of the bill as above set out are sufficient to warrant the decree made. The defendants were the mortgagors. The note was signed by all of them, and accompanied the- mortgage. The decree fixed the amount due on the note and mortgage. The decree necessarily involved the determination of the amount due. Haldane v. Sweet, 58 Mich. 431. This the court found to be, by the decree, $15,706.56. The defendants had the right in this proceeding to show that the amount was less, or that there was no personal liability on their part to pay it. These questions are always open in the foreclosure proceedings. Ransom v. Sutherland, 46 Mich. 492; Wallace v. Field, 56 Mich. 3.

Counsel for defendants cite section 6702, 2 How. Stat., and claim that under it the court had no power to establish the liability for any balance until on the coming in of the report of sale, and that the court had no authority to enter a decree for deficiency until it should be ascertained that there would be a deficiency. The decree does not direct the payment of any unpaid balance after sale. It simply determines the amount due from the mortgagors on the note and mortgage, and that the defendants named are personally liable for the amount. It is true that in Vaughan v. Black, 63 Mich. 215, it was held that the personal liability of a party collaterally liable for the payment of a debt secured by a mortgage on real estate could not be absolutely fixed in the original decree of foreclosure. But that is not this case. Here the parties were the mortgagors, and had made the note accompanying the mortgage.

It appears that the wives of the parties appealing had no rights in the property, other than dower, and that they signed the mortgage for the purpose of waiving their dower rights: The court found very properly that they

were not liable on the note. It was the note of the husbands, and no personal decree could be rendered against the wives.

The decree of the court below must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    FRAZEE v. STOTT.

    Master and Servant — Liability eor Injury — Negligence oe Fellow-Servant.
    A mill owner who has furnished an employe with a safe place to work, and with proper machinery and appliances, and who has selected a competent foreman to superintend the mill and competent men to assist about the employment, is not liable for injuries sustained by such employé while operating a roller machine, due to the misplacing of a guideboard by other employés after the latter, by direction of the foreman, had exchanged the rollers in the machine; they being fellow-servants of the injured employé even while engaged in taking out and putting in the rollers.
    Error to Wayne; Carpenter, J.
    Submitted April 20, 1899.
    Decided July 11, 1899.
    Case by Clarence A. Frazee against David Stott for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Defendant owns a flouring mill in the city of Detroit, and is the general manager of his business. Upon the floor of the mill are 28 roller machines, called “roller mills,” of which one is used for grinding feed and the others for grinding flour. The feed mill is composed of two sets of rollers, one above the other, the upper set of rollers being nearer the front of the mill than the other, which is situated about eight inches below. Two sideboards, slanting inwards, one in front and the other in the rear of the upper set of rollers, and extending below it, were placed so as to carry the feed from the upper set of rollers to the lower. The rollers were made of steel, with corrugated surfaces. These corrugations became dull from use, and about every 10 days it became necessary to remove the rollers for sharpening, and replace them by others. An eccentric rod extended in front of the rollers, and between them. Plaintiff had been employed for five years in flouring mills, three of which had been in roller mills. When plaintiff was employed, the defendant’s foreman, Mr. Hargraves, instructed him fully as to the operation of the machine, and he fully understood its mechanism and operation. It required his whole time to run the mill. Plaintiff gave evidence tending to show that the lower edge of the front guideboard was at first above the eccentric rod, leaving a sufficient space between the two for him to insert his hand. One of his duties was to insert his hand to catch the feed as it came from the upper rolls, to see whether the mill was doing proper work. This he was required to do many times daily. This was done by placing the ends of his fingers against the guide-board, and extending his hand under the lower edge a sufficient distance to catch some feed for examination. He had been in the employ of the defendant three weeks doing this work before the accident complained of. During this time the rollers had been twice exchanged. The mill was housed in with wood, and, in order to examine the feed, a door was opened in front of the guideboard. Plaintiff also gave evidence tending to show that, when the rollers were first changed, a small iron rod had been inserted above the eccentric rod for the purpose of strengthening the woodwork; that the guideboard was at that time lowered so as to rest on that rod, but still leaving room for the insertion of his hand above the eccentric rod; that the rollers had been exchanged the day before the accident ; that the front guideboard was then placed so as to rest upon the eccentric rod; that he placed his hand in the usual manner against the guideboard, moved it down and under, and caught his hand between the lower rollers, by means of which all the fingers of that hand were crushed off. The foreman of these mills instructed two other employés, named Enrich and Shafer, to take out the dull rollers and put in the sharp ones. They were chosen for this work because they were more experienced in the work than was the plaintiff, who had nothing to do with making the exchange, and was placed at other work about the mill while the exchange was being made. Enrich and Shafer were engaged in the same room in running the flour mills, whose sets of rollers were not placed one above the other. The negligence alleged is in lowering the guideboard to the eccentric rod, so that, in catching the feed for examination, it brought his hand in dangerous proximity to the lower set of rollers. The change in the guideboard is contested by the defendant, and so is the time of the change of rollers before the accident. The court directed a verdict for the defendant on the ground that Enrich and Shafer were fellow-servants, and, if they were negligent, their negligence is not chargeable to the defendant. A motion for a new trial was made, upon which the learned circuit judge, after a careful examination of the authorities, adhered to his former ruling, and filed an able opinion, giving his reasons.

      S. E. Engle, for appellant.

      Keena & Lightner, for appellee.

       Rehearing denied September 27, 1899.

   Grant, C. J.

(after stating the facts). It appears conceded that plaintiff and Enrich and Shafer were ordinarily fellow-servants, but it is argued that they were not fellow-servants in taking out and putting in the rollers, and that defendant’s duty continued and rested upon him to continually inspect the machine, and that this duty was then the same as though a new machine were being put in place. The following facts are not contested:

1. That the machine was one in common use, was properly constructed, and properly set up.

3. That Enrich and Shafer were competent for the work. (One count in the declaration alleged their incompetency, but this was abandoned upon the trial.)

3. That the machine was in the same condition as when purchased, except the alleged lowering of the guideboard.

á. That Hargraves was a competent foreman to superintend these mills.

^Defendant had furnished a safe place, proper machinery and appliances, and competent men to perform the work. Evidently he. could not personally superintend all the details of the work. To sustain the contention of the learned counsel for the plaintiff would result in making an employer responsible for every negligent act of his employe, no matter how extensive his business, when such negligent act related to the necessary fixing of machinery, and that, too, when he himself may not be skilled in such things, and has done all that lay in his power, by furnishing good materials, appliances, and skilled and experienced men. It would result in overturning the well-established rule upon the negligence of fellow-servants. The question cannot be determined by the fact that the work to be done requires skill and experience, or that one servant occupies a position of greater responsibility, or is engaged in a different line of employment. The servant, in order to make his employer responsible for his negligent act, must be engaged in work which belongs to the master to superintend. A locomotive engineer of one train and the conductor of another are fellow-servants. So, also, , are brakeman and engineer. Michigan Central R. Co. v. Dolan, 32 Mich. 510; Conger v. Railroad Co., 86 Mich. 78. A miner and a timberman are fellow-servants. Quincy Mining Co. v. Kitts, 42 Mich. 34. An engineer and a fireman are fellow-servants. Henry v. Railway Co., 49 Mich. 495. Carpenters and other artisans, working in different departments, are fellow-servants. Hoar v. Merritt, 62 Mich. 386; Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (27 L. R. A. 266). A founder in a blast furnace and a locomotive engineer of the' same .company are fellow-servants. Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am. St. Rep. 441). A brakeman and a car inspector are fellow-servants. Dewey v. Railway Co., 97 Mich. 329 (22 L. R. A. 292, 37 Am. St. Rep. 348). A car loader and a shift boss in a mine are fellow-servants. Petaja v. Mining Co., 106 Mich. 463 (32 L. R. A. 435, 58 Am. St. Rep. 505). A fireman and a section man on a railroad are fellow-servants. Loranger v. Railway Co., 104 Mich. 80. See, also, Schroeder v. Railroad Co., 103 Mich. 213 (29 L. R. A. 321, 50 Am. St. Rep. 354). If a master is not responsible for the negligent act of his servant, a carpenter, in erecting an unsafe scaffolding, upon what principle can defendant be held, in this case, for negligently placing the guideboard? The question has been so thoroughly discussed in the authorities above cited that we refrain from discussing it further.

Judgment affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    STARMONT v. CUMMINS.
    Witnesses — Pees—Officers of the Court.
    Under 2 How. Stat. § 9064, providing that any person attending court as a witness on behalf of the people, upon request of the public prosecutor, or upon a subpoena, or by virtue of any recognizance for that purpose, shall be entitled to certain fees, the officer who makes the arrest and brings the prisoner into court, and who receives his fees therefor, is not entitled to additional fees upon being sworn in the case as a witness.

      Certiorari to Ingham; Person, J.
    Submitted April 18, 1899.
    Decided July 11, 1899.

      Mandamus by Adolph M. Starmont to compel Alva M. Cummins, prosecuting attorney • of Ingham county, to countersign a certificate for witness fees. From an order granting the writ, respondent brings certiorari.

    Reversed.
    A warrant was issued by a justice of the peace for the arrest of an offender. The warrant contained a clause directing the officer into whose hands it came to subpoena certain witnesses, among whom was relator. It was ■ placed in the hands of relator, who made the arrest and brought the prisoner before the court. Relator gave testimony, and received a certificate for fees as a witness. Respondent, as prosecuting attorney, refused to countersign the same, on the ground that said relator was an officer in attendance upon said court, for which attendance and services, he was entitled to compensation, and was not entitled to compensation as a witness in addition thereto. Relator applied to the circuit court, and a mandamus was issued, compelling respondent to sign the order.

      L. B. & H. M. Gardner, for relator.

      Alva M. Cummins, in pro. per.

   Per Curiam.

The statute under which relator claims his fees reads as follows: “That whenever any person shall attend any court as a witness in behalf of the people of this State, upon request of the public prosecutor, or upon a subpoena, or by virtue of any recognizance for that purpose, he shall be entitled to the following fees,” etc. 2 How. Stat. § 9064. The relator was in court as an officer in charge of a prisoner, and entitled to receive his fees as such officer. The evident purpose of this stat-’ ute is to compensate a witness to some extent for his loss of time. Most men are engaged in some employment, which they must necessarily leave in obedience to the subpoena of the court. Relator was not subpoenaed as a witness; he had not come as a witness; he had lost no time as a witness. Those who are familiar with criminal trials are aware that the officer making the arrest is frequently sworn as a witness. Is he, under those circumstances, entitled to fees both as an officer and as a witness ? No such rule should be adopted, unless the statute clearly provides it. There is nothing in the statute to indicate it. We think the relator is not entitled to both fees. Com. v. Commissioners of Philadelphia Co., 6 Bin. 397; Board of Commissioners of Montgomery Co. v. Bromley, 108 Ind. 158.

Judgment reversed, and judgment entered for the respondent.


author: Hooker, J.

text:
    MANN v. CARSON.
    1. Taxes — Auditor General’s Petition — Evidence of Filing.
    The fact that the auditor general’s petition in a tax proceeding, comprising a part of the tax record, and found in the office of the county treasurer, where such record is required to be kept by section 67 of the tax law (Act No. 206, Pub. Acts 1893), is not marked as filed in the office of the county clerk, is immaterial, where the filing of such petition is recited in the order of hearing thereon.
    2. Samé — Proof of Publication — Sufficiency.
    An affidavit showing the publication of “the notice of the sale of state tax lands hereto annexed ” sufficiently proves the publication of the auditor general’s petition, the order of hearing thereon, and the list of delinquent lands in a tax proceeding, where it is found among the files of such proceeding in the county clerk’s office, and a printed copy of such petition, order, and list of lands, taken from the newspaper mentioned in such affidavit, is also found among the files, and is the only paper there found to which the affidavit could refer, although such papers are not attached together, and the affidavit is not entitled in any cause.
    3. Same — Publication in Newspaper Supplement.
    Publication of notice of a tax sale in a supplement to a newspaper is a sufficient publication in the newspaper.
    4. Same — Description of Lands — Sufficiency.
    A description of lands in a published tax list as “15 entire” in a column headed “Block,” among descriptions in “Clark’s Addition to the Village of Chesaning,” is sufficient.
    5. Same — Manner of Assessment.
    Under the provision of the tax law that lands shall be assessed “to the owner, if known, and also to the occupant, if any; if the owner be not known, and there be an occupant, then to such occupant,” — the owner of lands occupied by another cannot complain that the assessment was made to the owner alone.
    6. Same — State Tax Lands — Right of Purchase.
    Lands acquired by the State under section 68 of the tax law of 1893, providing that, if the county treasurer shall fail to offer for sale lands included in the decree, they shall be considered as bid off to the State, are subject to private sale, as state tax lands, under section 84 of the act.
    7. Same-Form of Conveyance.
    A deed of state tax lands in the form of a quitclaim is sufficient to pass title to the grantee.* Dawson v. Peter, 119 Mich. 274, followed.
    8. Same — Attempted Payment.
    Where the original owner of land held by the State under a sale to it,for delinquent taxes applies to the county,treasurer to pay all taxes standing against the land, and does pay all taxes which he is advised by that officer are so outstanding, he is entitled to the same relief against á subsequent purchaser of the land from the State as though the taxes for which the land was sold had been paid to the proper officer within the time provided by law; and this though the period of redemption on the sale to the State had expired at the time of such attempted payment.
    9. Same — Remedies — Certificate of Error — Writ of Assistance.
    These facts, however, cannot be set up by the landowner to defeat the issuance of a writ of assistance to the holder of the tax title, but resort must be had to one of the remedies prescribed by sections 70 and 98, respectively, of the tax law, i. e., a motion to set aside the sale (unless barred by lapse of time), or an application to the auditor general for a certificate of error.
    10. Same — Procedure.
    But the Supreme Court will, in its discretion, defer the issuance of the writ of assistance, to enable the landowner to avail himself of the statutory remedy.
    Appeal from Saginaw; Wilber, J.
    Submitted November 16, 1898.
    Decided July 11, 1899.
    Petition by Mary E. Mann against George W. Carson for a writ of assistance. From an order denying the writ,' petitioner appeals.
    Reversed.

      Williams & Wilson, for petitioner.

      G. W. Davis, for respondent.
   Hooker, J.

Mrs. Mann purchased a parcel of land from the State, the same having been bid in for the State for the taxes of 1891 and 1892. In due season she filed her petition for a writ of assistance. The defendant answered, alleging .title, and attacking the validity of the tax proceedings and decrees upon several grounds. The-circuit court denied the relief prayed, and the petitioner has appealed.

The answer raises the following points:

1. That the petitions of the auditor general were not filed, and therefore the court did not obtain jurisdiction of the tax proceedings. This applies to the taxes of Í 881 and 1892. The precise defect appears to be that the petition attached to the tax record, which seems to have been found in the county treasurer’s office, had no filing by the county clerk upon it.

2. That the order of publication was not published as required by law.

3. That no decree was made for the sale of the land in question for the tax of 1892.

4. That on October 21, 1895, the defendant applied at the county treasurer’s office for a statement of all taxes against the premises, that he might pay all taxes and charges against them, and was told the amount by a clerk in charge of the office; and that he then and there paid the * amount given him, and supposed he had paid all taxes and charges against the land.

5. That the premises were, during 1891 and 1892, in the care and possession of his brother, who had personal property from which' the taxes might have been collected had the land been assessed to him, as required by section 6, Act No. 200, Pub. Acts 1891; and respondent believed such taxes had been paid until he received notice of this proceeding.

6. That he had regularly paid all previous and subsequent taxes.

7. That the land was offered but once before it was struck off to the State, and there was no formal bid made for the State.

In support of the first point, counsel for the appellee asserts that, not only was there no filing upon the petitions, but there were no calendar entries in the cause, and the petitions were not found in the clerk’s office, but were produced by the county treasurer, and had no word written upon them to indicate that they had ever been in the .offico of the clerk. There is evidence in the record that tax petitions were made, because papers purporting to be •such were produced, being offered in evidence by counsel for the appellee, with proof that they were produced by the county treasurer. Section 67 of the tax law of 1893 (Act No. 206, Pub. Acts 1893) requires that the tax record — which, under section 61, includes the petition— shall be delivered to the county treasurer immediately after the decree is made; and it is further provided that it shall remain in the treasurer’s office, except as needed in the office of the clerk. It therefore appears that the petitions were found in the proper place. It also appears that various papers purporting to belong to such proceedings were found in the county clerk’s office, and, among them, orders of publication signed by the judge of the court. These orders recited the fact of the filing of the petitions. We are therefore of the opinion that there is abundant evidence that these petitions were at some time in the county clerk’s office; and, in view of the language of the order of publication, we must ascribe the failure to mark them as filed to clerical omission, not fatal to the proceedings. In Beebe v. Morrell, 76 Mich. 120 (16 Am. St. Rep. 288), it is said that “a paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.”

The next defect pointed out by the answer is that in neither instance was there proper proof of publication of the order. Among the proper files in the clerk’s office, a paper was found entitled “ Affidavit of Publication.” It was signed by one Whiting, and stated that he was the principal clerk for printing and publication of the Weekly .Courier-Herald, a newspaper published and circulated in the county of Saginaw; that the notice of the sale of state tax lands thereto annexed had been published in said newspaper once in each week for four successive weeks previous to the date of sale mentioned in said notice, and gave the dates of the several issues of the paper containing it. No paper was attached to this affidavit, but in the same files there was found a printed copy of the petition of the auditor general, and list of the delinquent lands, and a copy of the order of hearing; these appearing to be printed on what purported to be a supplement to the Courier-Herald. It is claimed first that the affidavit does not show the publication of the delinquent list, but on its face states that the publication of a notice of the sale of state tax lands was what it was'intended'to prove, and that this was not explained by a reference to the title of any cause. If we cannot say that the presence of the appropriate copy of petition and order in the files raises a presumption that they were originally attached to the affidavit, we must hold that the proceedings were void, under Benedict v. Auditor General, 104 Mich. 274. If, however, such presumption may be indulged, the language of the affidavit should be read with the aid afforded by the accompanying papers, which would show plainly that the publication referred to was the proper one for these proceedings. The only office of the affidavit is to prove the fact of a proper publication, and when it does this it is sufficient. From these papers, taken together, no one could be misled by the statement that notice of sale of state tax lands was published, and the publication actually made would be evident. A closely analogous question arose in the case of Spaulding v. O’Connor, 119 Mich. 45. When it is considered that the copy of the supplement found in the files was devoted to a publication of copies of the very papers that appropriately belonged to the affidavit under consideration, and that it had no other use or apparent reason for being there than as part of such affidavit, coupled with the fact that it was the only paper in the files that could have been referred to by that affidavit, and that the separation of such papers by accident or design is easy, we are justified in conchiding that they were originally attached, especially where put together with mucilage, which so corresponded upon the papers as to furnish some support to the claim that they had been stuck together at some time.

The further claim is made that the publication in a supplement was not such a publication in a newspaper as to comply with the law. Newspapers commonly consist of two or more unbound sheets, which are liable to get separated. The designation of one as supplement does not make it less a part of the newspaper. Had that word been omitted, this question would not be here. It strikes us as a most technical objection.

Defendant’s third proposition is that no decree was made for the sale of the land in controversy. It is claimed that the list as published for the 1892 tax did not sufficiently describe the premises. The figures and word “ 15 entire” were printed in a column headed “Block,” among descriptions in “Clark’s Addition to the Village of Chesaning.” We have no doubt of the sufficiency of this description.

It -is urged by counsel that the amounts adjudicated against the land were inserted, after the decree was signed, by a clerk in the treasurer’s office. No hint of this claim is found, either in the answer or the proof, and we have, therefore, no occasion to pass upon the question.

The fifth ground of defense is that the land should have been assessed to the defendant’s brother, who was in possession. The statute referred to in this connection (section 6, Act No. 200, Pub. Acts 1891) contemplates assessment to the owner where known, as in this case.

The next defect mentioned is that on neither occasion of the sale for taxes was the land offered a second time before it was struck off to the State, nor was there a formal bid made for the State. Counsel does not point us to proof that this was not offered a second time before being bid in by the State. But section 68 of the law of 1893 provides that “if, for any reason, the treasurer of any county shall fail to offer the lands lying therein and included in the decree for sale for delinquent taxes thereon, then so many of such lands so included in such decree as shall not be so offered for sale shall be considered and treated as if bid off to the State by the county treasurer,” etc. It is urged that lands acquired under this section are not subject to private sale by the State under the statute, but we are of the opinion that they are.

This covers all questions specifically raised by the answer except the fourth. A further point is made in the brief upon the petitioner’s deed. Such deed is in form a quitclaim, and it is said to be insufficient, upon the ground that “it is the universal rule * * * that, where the statute does not prescribe the form of the deed to be used in conveying lands to purchasers at tax sales, such a form of deed must be used as would, at the common law, have conveyed title.” Counsel cites in support of this proposition: 2 Blackw. Tax Titles (5th Ed.), §772; Black, Tax Titles, § 396; Waldron v. McComb, 1 Hill, 111. This question is. settled by the case of Dawson v. Peter, 119 Mich. 274, which is upon all fours with the present case upon this point.

The fourth claim contained in the answer relates to the alleged application of the defendant to the county treasurer to pay taxes and charges.. The evidence upon this subject is confined to the testimony of the defendant. He produced a tax receipt for the taxes of 1894, bearing date October 21, 1895, and his examination proceeded as follows:

Q. At the time you received this receipt, with what object or purpose did you go to the county treasurer’s office ?.
‘A. I went there to pay the taxes on that piece of property in town 9, or any taxes which might be against me in the county treasurer’s office.
Q. How about block 15 ?
“A. Well, I asked about that, and they gave me that tax there with it, and I asked if there was anything more against the block, and they said there was not.
Q. Did you ask for a statement of all the taxes against the block ?
“A. I asked for all the taxes against the block, and was there ready to pay all the taxes that was against me in the county, if there was any other at the time when I was there. They said there was no more taxes against me than that receipt covered; and I paid all that-they claimed was against me.
‘ ‘ Mr. Foote: We offer that in evidence. The object of that is to show that in 1894 he applied to pay the taxes against the lot, and they told him the taxes covered by that receipt were all the taxes unpaid against the lot.
“The Court: You knew in 1891 and 1892 you had not paid the taxes for those years ?
“A. I knew I had an arrangement for a man to pay them, and calculated he had paid them. He had control of the property. He had the means to pay them with, and I supposed they were paid until a short time ago.”

He added:

“The one that gave me that receipt was a young man working in the county treasurer’s office, and he is not back • there any more.”

At this time redemption had expired on the sale for the tax of 1891.

My brethren think that this testimony brings the case within the rule laid down in the cases of Hand v. Auditor General, 112 Mich. 597; Wood v. Bigelow, 115 Mich. 123; Hough v. Auditor General, 116 Mich. 663; Kneeland v. Wood, 117 Mich. 174; Kneeland v. Hyman, 118 Mich. 56. But we cannot set aside the sale in this proceeding, as we might perhaps do under a motion seasonably made. But we presume that it is now too late for such a motion, and, if there is any remedy open to the defendant, it is probably by proceedings before the auditor general for a certificate of error. While we cannot deny the writ of assistance, we may exercise a discretion in the 'premises, and defer its issue, to give the defendant an opportunity to make an application to the auditor general, or to the court if that right is not lost by lapse of time.

The order of the circuit court is reversed, and an order will be entered here directing the circuit court to enter an order that a writ of assistance issue at the expiration of 90 days from this date, unless it shall, at or before that time, be made to appear that the petitioner’s deed has been canceled by the auditor general, or that proceedings be pending, in which case it shall be within the power of said court to vacate said order or further stay the issue of said writ, as justice may require. The petitioner will recover costs of this court.

The other Justices concurred.


text:
    MILLER v. CHILDS.
    1. Religious Societies — Loans — Authority to Execute Note and Mortgage.
    At a parish, meeting of an Episcopal church, the vestry submitted a report that it had arranged to purchase lots for a church and rectory, and that the Church Association of Michigan had signified its willingness to advance a certain amount, provided the property should be deeded to the association in trust for the parish, and that interest at 7 per cent, should be paid on the money advanced, and the principal should be paid in §100 installments. The meeting authorized the vestry to carry out the arrangement. Held, that the vestry was authorized to give notes for the amount secured.
    2. Same —Equity —Assignment op Mortgage — Foreclosure — Deficiency.
    Where a religious society, through its vestry duly authorized, borrowed money to purchase lots for church purposes, and gave its notes secured by mortgage upon the property, and the mortgagee subsequently assigned to a third person, having accepted from the vestry a new note, given without the knowledge of the society, equity will treat the transaction as an assignment of the original debt and security,- and, upon foreclosure of the mortgage, will hold the society for a deficiency.
    Appeal from Menominee; Stone, J.
    Submitted April 5, 1899.
    Decided July 11, 1899.

      Bill by Sidney D. Miller and others, executors of the last will and testament of Helen L. Frue, deceased, against George A. Childs, warden, and others, vestrymen, of Grace Church of Menominee, the Church Association of Michigan, and Grace Church of Menominee, to foreclose a mortgage. From a decree awarding foreclosure, but finding defendant Grace Church not liable for any deficiency, complainants appeal.
    Modified.

      Frederick T. Sibley (Sawyer & Waite, of counsel), for complainants.

      B. J. Brown, for defendant church.
   Hooker, J.

The complainants foreclosed a mortgage which their testatrix received under the following circumstances :• Grace Church, in Menominee, contemplated the erection of a rectory, and had negotiations with the Church Association of Michigan in relation thereto. Both are corporations. At a meeting of the parish, the vestry submitted a report that it had arranged to purchase two lots for church and rectory; that the Church Association' had signified its willingness to advance such an amount of money, up to the amount of $3,300, as was necessary to complete the payment for the lots and erect a rectory, provided the property should be deeded to that association in trust for the parish, and that interest at 7 per cent, should be paid on the money advanced, and the principal should be paid in $100 installments. The meeting authorized the vestry to carry out the arrangement. Thereupon the deed was made by Grace Church to the Church Association, and a note was given for $900, which was paid, upon the purchase, by the Church Association, which gave its guaranty for payment of the balance of the purchase price. Subsequently the church gave the association another note for $1,300, being the balance of the loan of $3,300, which it received. This money was used in building the rectory. Some weeks after the giving of the second note, at a meeting of the vestry, a communication was read from the secretary of the Church Association, asking the vestry to sign a note for $2,200, in favor .of Helen L. Frue, to take the place of the former notes. This note was executed by the vestry, and reads as follows:

“$2,200. Detroit, Michigan, 1st January, 1889.
“For value received, we, the undersigned, vestry of Grace Church, Menominee, Michigan, promise to pay to the order of Helen L. Frue, of Detroit, Michigan, the principal sum of twenty-two hundred dollars, on or before the first day of January, eighteen hundred and ninety - four, without grace, with interest at the rate of seven per centum per annum, payable on the first day of J uly next, and semi-annually thereafter, until the whole of said principal sum is paid; both principal and interest being payable at the office of the Detroit Savings Bank, in Detroit.
‘‘ This note is secured by a certain real-estate mortgage, of even date herewith, made by the Church Association of Michigan to said Helen L. Frue, and collateral thereto, the terms and conditions of which are made a part hereto.”

It was sent to the secretary, and the Church Association thereupon executed to Helen L. Frue a mortgage for $2,200 upon the premises to secure this note. A deed was thereupon executed and delivered by the Church Association to Grace Church, and was accepted by its vestry, and it continued to occupy the premises for 10 years or more.

No opposition was made to the entry of a decree of foreclosure, but Grace Church contended that it is not liable for any deficiency. A decree for foreclosure and sale was made, but the court refused to hold Grace Church liable for a deficiency, and held that it was not so liable, and the complainants have appealed. It is contended that the parish did not authorize the giving of any note by the vestry, and that there is no evidence that it knew of the giving of the note to Helen L. Frue.

The testimony shows that Grace Church, at a parish meeting, directed its vestry to make a loan from the Church Association of $2,200, at 7 per cent., and to deed to the association, in trust, the lots which it had bought. This was done, and there is no doubt that this deed was no. more than a mortgage. Two notes were given, representing the payments made by the Church Association to the vestry. It does not appear when they were payable, and the defendant Grace Church claims that the vestry had no authority to give them, and it is also claimed that it had no authority to execute the note to Helen L. Frue, which was given to take the place of the notes first given. The effect of the resolution adopted at the meeting was to instruct the vestry to make a loan, and deed the property to the Chux’ch Association, and it was impliedly authorized to give the necessary evidence of indebtedness. The deed could not be expected to be adequate, for it would contain no covenant to repay the loan, and therefore would not support a decree for deficiency in case of foreclosure. 1 How. Stat. § 4665.

We are justified in assuming that the church expected the vestry to give some evidence of indebtedness, and it appears to have done so. Whatever we may think of the last question, the fact remains that Grace Church borrowed $2,200 of the Church Association, and gave its trust deed, i. e., mortgage, and two notes, to secure its payment. If no other writing had been made, on foreclosure of such trust deed Grace Church would be liable for the debt; and the fact that another note was after-wards substituted for them, which was unauthorized and void, as the defendant Grace Church contends, would not release the church from the duty of paying the debt, or its liability for the deficiency on foreclosure of the trust deed.

It may be said that the notes originally given were not in conformity to the resolution, which accepted a proposition to have them payable in $100 installments. This point is not made in the brief in behalf of Grace Church, and our attention is not called to any proof that they were not so made payable. The point is made that the resolution did not authorize the giving of any note; but we think otherwise, as already stated.

The Church Association had a right to assign its mortgage, and, if the note which it delivered to Helen L. Frue was void, equity will treat the transaction as an assignment of its debt and security. The defendant Grace Church itself has been willing to treat the transaction as binding upon its interest in the land, but apparently seeks to avail itself of a technical point to shift the burden of paying a deficiency upon the Church Association. It is not made clear to us that this effort to saddle a portion of its debt upon another is equitable. The bill alleges all of the facts, and contains a prayer for general relief. We think the complainants were entitled to a decree establishing the obligation of Grace Church, and the decree of the circuit court will be modified in that particular, and affirmed, with costs.

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


author: Moore, J.

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    COOKBURN v. AUDITOR GENERAL.
    1. Taxes — Purchase of State Lands — Nonpayment of Liens— Void Deed.
    Under section 84 of the tax law of 1893, requiring a purchaser of state tax lands to pay all taxes remaining a lien thereon at the time of his purchase, a deed issued without the payment of such a tax is void, even though the tax had not been returned to the office of the auditor general at the time of such purchase. Hughes v. Jordan, 118 Mich. 27, followed.
    2. Same — Cancellation of Deed — Refunding—New Purchase —Mandamus.
    The holder of a deed of state tax land, void for failure to pay a tax constituting a lien upon the land at the time of purchase, is entitled, on application at the office of the auditor general, to have such deed canceled and the amount paid refunded, or instead, if no other rights have intervened, on paying an amount which, together with that previously paid, will equal the’ amount due the State and all taxes then a lien upon the land, to have such deed canceled and a new one issued; and, in case the auditor refuses to take such action, mandamus will lie to compel him to do so.

      Mandamus by George A. Cockburn to compel Roscoe D. Dix, auditor general, to cancel a tax deed and issue a new one.
    Submitted February 15, 1899.
    Writ granted July 11, 1899.

      James H. McFarlan, for relator.

      Bacon & Palmer, amici cufice.

      Horace M. Oren, Attorney General, and Fred A. Maynard, ex-Attorney General, for respondent.

      Stephen H. Clink, amicus curice.

   Moore, J.

On February 12, 1898, the petitioner made a written application to the auditor general to purchase the land in question, and paid to the auditor general, with such application, the sum of $236.18. On March 11, 1898, the auditor general executed a deed to the petitioner, conveying the land in question for the taxes of 1894, and issued tax receipts for the taxes of 1895 and 1896. On July 28, 1898, the petitioner, in order to complete the purchase of said land, paid to the auditor general $72.10, the amount of taxes of 1897 assessed upon said land, for which tax' the auditor general issued a receipt to him for $71.62, and returned the balance of 48 cents. August 3, 1898, the petitioner made application for the cancellation of the deed and receipts issued to him, and for refunding thereon, and with such application paid to the auditor general the sum of $81.30, and asked that the refunding upon the deed and receipts, and the amount paid with the application of August 3d, be applied to the purchase of the land, and that a new deed issue therefor; which was refused by the auditor general, and mandamus is asked for to compel the cancellation of the- first deed and the issue of a new deed on the last application. The auditor general refused to issue this deed on the ground that, as the taxes of 1897 had not been returned to his office, they were not included within the terms of the tax law, and the purchaser was not obliged to pay them as a condition precedent to the issuing of the deed, and that such sale was valid; and, in fact, seeks to have the case of Hughes v. Jordan, 118 Mich. 27, overruled by this court.

The case of Hughes v. Jordan has been reargued. We have had the benefit of most excellent briefs by the attorney general and by a number of other able lawyers. We are all agreed that the decision in that case must stand. Under that decision, the deed issued to the petitioner was void, and should be so treated in this proceeding. The amount paid to the auditor general when this deed was issued, supplemented by the payment of $72.10, equaled the amount due the State and the amount of taxes which were then a lien upon the land. The petitioner asked the auditor general to apply these amounts as a payment for the land. If no intervening rights accrued between the dates of these payments, the request should be complied with, and the deed should be issued; and it is so ordered.

The other Justices concurred.


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    CARD v. FOWLER.
    1. Appeal —Evidence—Hearsay —Inconsistent Positions op Counsel.
    Counsel for an appellee cannot insist upon the Supreme Court’s rejecting, in order to sustain the verdict, hearsay evidence used by them to obtain the verdict in the court below.
    2. Chattel Mortgages — Possession op Mortgagee — Claim op Ownership — Waiver op Lien.
    One taking possession of x>ersonal property, claiming absolute ownership, where in fact his rights are those of a mortgagee, does not thereby waive his mortgage lien.
    3. Same — Liability in Trover — Necessity por Tender.
    While a chattel mortgagee who sells sufficient of the property to satisfy his lien may be sued by the mortgagor in trover upon his claiming ownership of and refusing to deliver the remainder of the chattels, no tender in such case being necessary, a claim of absolute ownership of chattels exceeding in value the amount of Iris lien will not of itself subject him to liability in such an action, without a tender of the amount his due being previously made.
    4. Witnesses — Weight op Evidence — Instructions.
    Though courts are properly reluctant to -call attention to the testimony of a particular witness, it is desirable to give some instruction on the weight of evidence where there was but one witness to the transaction in controversy, and his evidence is contradicted by a single witness, much of whose testimony is of a hearsay character.
    5. Executors and Administrators — Authority to Sue.
    Authority of an administrator to sue in behalf of the estate was recognized, though nearly four years had elapsed since his appointment, where no plea to the jurisdiction was filed, and no showing was made that the estate had been closed or that the administrator had been discharged.
    Error to Hillsdale; Lane, J.
    Submitted April 21, 1899.
    Decided July 11, 1899.
    Trover by David S. Card, administrator of the estate of Fremont W. Fowler, deceased, against Frederick Fowler. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Stone & Twiss (T. E. Barkworth, of counsel), for appellant.

      Corvis M. Barre (F. A. Lyon and Watts, Bean & Smith, of counsel), for appellee.
   Hooker, J.

Frederick Fowler and Fremont Fowler were father and son; and the record indicates that the son, Fremont, was unsuccessful in business, if not profligate, and that for many years he made heavy draughts upon his father’s patience and generosity. He was in debt to him as well as to others. He died on February 9, 1891, at his home,: — a farm owned by his father. A short time before his death he procured some money from his father. Eli Rogers, the father’s brother-in-law, who was present at the interview, testified that the property in question was purchased by Frederick Fowler for $2,000, which was paid by Rogers at Frederick Fowler’s request. The administrator attempts to dispute this by alleged statements of Frederick Fowler to the effect that decedent’s property was sufficient to more than pay his debts, and that, if there was more than enough to pay him, he would pay other creditors; but the briefs of plaintiff’s counsel assert that Frederick Fowler always claimed to be absolute owner of the property, and nevér claimed to be holding it as mortgagee. A bill of sale was produced, which Rogers said he induced Fremont to' give to his father at a time subsequent to the loan, but that Frederick Fowler had nothing to do with that transaction. The only evidence that tended to controvert the testimony of Eli Rogers was given by Kate Fowler, Fremont’s widow, upon cross-examination. She was called by the plaintiff to prove that the defendant took the property from the farm after Fremont’s death. Upon cross-examination she said:

‘ ‘ I knew at the time he was making this disposition of this property that he was claiming that he was doing it in accordance with a claim that he had purchased it from my husband. * * * I knew in the fall of 1890 that my husband was in debt. I knew that he got some money from his father during the winter. I knew that he got $1,200. I knew that he got it, by his telling, and by Eli Rogers. * * * I knew my husband made a list of property for the purpose of obtaining the money. I wrote it down myself as he told it to me. * * * I knew Mont, was going to get the money from his father, and I knew he did obtain it. My husband told me that he got the $1,200, and gave a mortgage.”

She also testified that she knew where most .of the money was paid out by her husband.

The principal question in the case was whether the defendant purchased the property, or took a mortgage upon it for $1,200 or more. It was left to the jury, and it is manifest that they found that the defendant did not purchase the property; for, if they had not, their verdict could not have been in favor of the plaintiff. The claim is made by the counsel for the plaintiff that we should say that there was no evidence tending to show that the defendant had a lien upon the property, and that his defense necessarily rested upon his alleged purchase. That there was a transaction of some sort, there is no room to doubt; and if, as is now claimed by plaintiff’s counsel, the testimony of Kate Eowler was hearsay, and should not be considered for that reason, and for the further reason that she should not have been allowed to testify against her husband’s administrator, by reason of her being disqualified to testify against the husband without his consent, there would seem to be little, if any, testimony contradicting the defendant’s proof. The contention that we should disregard this testimony does not impress us favorably, for it places the plaintiff in the position of using it to obtain a verdict, and insisting upon disregarding it to sustain ■the verdict. We must say, therefore, that it was proper to submit the question to the jury, and that it conclusively appeared in the case that the defendant had a lien upon some or all of this property, his claim of ownership having been denied by the jury.

The court was requested to instruct the jury to render a verdict for the defendant. This was upon the theory that, whether he was owner or mortgagee, he had a right to the possession of the property. The court instructed the jury as follows:

“The contention of the plaintiff is that it was a mort-. gage for $1,200 only, and, if you find that it was a mortgage for that amount only, then I think the defendant would have a right, even though it were not for such an amount as equaled the value of the property, to take possession of the property, under the evidence in this case, and that his possession would not be wrongful, unless he went so far as to deny the right of the estate in that property; and, if he did go so far, notwithstanding he had a mortgage upon the property, as to say or to insist that there was no right left in Fremont W. Fowler, that he had no rights in the property, that his personal representative, the administrator, had no right in the property,— was insisting th^,t he was the owner of it entirely^ — then there would be a right of recovery here -in the administrator for so much as the value of this property which he was insisting he owned was in excess of the lien which he actually had upon it. And, in determining the amount of that lien, you would figure the interest upon it from the time when it was given up to the present time, at 6 per cent.”

It was contended by the plaintiff that the defendant had sold sufficient property to more than pay his claim, and that, therefore, no tender before suit was necessary. If the defendant had sold sufficient to pay his claim, the lien was discharged, and there was no occasion to make a tender; and upon a refusal to deliver the remainder, accompanied by a claim of ownership, trover would lie. In the case of Brink v. Freoff, 40 Mich. 613, 44 Mich. 69, trover was sustained where, an installment being overdue, more than sufficient property was sold to pay it. Iler v. Baker, 82 Mich. 226. But in the present case the defendant claimed that the mortgage was not paid by a sale of the property, and that, until it was paid or tendered, he had a right to the possession, and the court so instructed the jury. Had he stopped there, the defendant would have no cause for complaint; but he did not. They were told further that if, under such circumstances, the defendant claimed to hold as owner, and denied that the plaintiff had any title whatever, there would be a right of recovery for the excess over and above the amount necessary to pay up the mortgage. Counsel for the defendant contend that until the defendant’s mortgage was paid or tendered, or he had, through sale of the property, realized sufficient to pay his claim, he had a right to retain the possession; and this seems plain enough, unless, as counsel for the plaintiff contend, his claim of absolute ownership and denial of plaintiff’s title deprive him of such right. Plaintiff’s counsel assert that such claim should be treated as a waiver of the lien; but we think otherwise. In the cases of Ball v. Cook, 77 Mich. 681, and Iler v. Baker, 82 Mich. 230, the right of the mortgagee to receive the amount due him was recognized, notwithstanding such a claim. In the latter case, at least, the claim was made upon the trial, and the question went to the jury, as it did in this case. There is much in this record that tends to support the claim of the defendant, and, though the issue was found against him, if made in good faith, it would be rather severe to require him to lose his entire debt because he had not succeeded in establishing the identical claim made. As we have seen from the cases cited, such a penalty was not imposed in other cases. If the lien was not.lost by such claim, it would seem to follow that he had a right to enforce it by taking possession of and selling the property; and, if so, it is hardly consistent to say that an immediate right of replevin or to recover in trover arises because of the claim of ownership.

In Brink v. Freoff, supra, it was held that trover would lie for a wrongful sale of the property, and that a tender was unnecessary, because the sale had put it out of the power of the mortgagee to return the property wrongfully sold. In Rail v. Cook, supra, it was said a tender was unnecessary. That case is thought to support plaintiff’s theory, and it is said that the property had not been sold, yet the court sustained the action, and held that a tender was unnecessary. It is true that the report fails to show that the property was sold, but the record discloses that the action was brought some four years after the demand, which, taken in connection with the statement in the opinion that “ I think the tender would be unimportant, as is pointed out in Brink v. Freoff, supra,” would indicate that it had been sold. In that case the statement that a tender was unnecessary was put upon the express ground that, by reason of a sale of the property, it could not be complied with. Again, in Rall v. Cook the court used this language:

‘ ‘ He knew then that the bill of sale afforded no protection to Cook, but he also knew that Cook had valid liens upon the property, placed thereon by his. own act, and that Cook had the right to retain possession under them; and it was as much his duty to make a tender in one case as in the other.”

This would indicate that the right to possession was not lost, and that the duty to make a tender would have existed, had it not become unimportant for the reason mentioned. But the matter was set at rest in a later case, written by the same distinguished judge, from which we may infer still more strongly that the property had been sold in the case of Rail v. Cook. In Iler v. Baker, 82 Mich. 230, Mr. Justice Champlin said:

“His position with reference to the property was that of a pledgee or mortgagee in possession. If the testimony of plaintiff was entitled to credence, then there was an extension of time for the payment of the money due to Mr. Baker. But the time was indefinite; and, had he retained possession of the goods, it would have been necessary for the plaintiff both to have made a tender of the. amount due, and to have made a demand for the delivery of the property, before he could maintain an action of trover for its conversion. But Baker, being in possession as pledgee of the property, as the testimony shows, sold sufficient, and more than sufficient, to pay the debt due to him from Her, in which case he became bailee for Iler of the remainder of the goods, and also it was his duty to pay over the surplus money realized on the sale, over and above the debt due to him, on request; and in such case neither tender nor demand was necessary before bringing action, where the pledgee asserted absolute title to the goods, and denied all right of property in the pledgor to them.”

We are of the opinion that the learned circuit judge was not justified in the instruction that trover would lie for property in the lawful possession of the defendant, which he had a right to retain for the satisfaction of his lien. Had a tender of any balance due him been made, the case would be different. Under this instruction the jury may have found for the plaintiff, notwithstanding the possible fact that the mortgage was not fully paid. '

Allusion has been made to the character of the testimony in support of the claim that the transaction amounted to a mortgage. The testimony of Rogers clearly showed that the property was purchased' by the defendant. There was no other witness to the transaction, and the contrary was made to appear, if at all, by testimony of doubtful admissibility, in the main, because much of it was hearsay. A perusal of the record satisfies us that this was one of the cases where some instruction upon the weight of evidence would have been proper. Counsel presented the following requests:

“4. You are instructed that the uncontroverted testimony of a credible witness ought not to be lightly disregarded, and you have no right to substitute a fanciful hypothesis to account for facts which are explained by direct testimony. Your verdict should be based on the evidence, and that alone; and it is the duty of the jury to harmonize all proven facts, if possible, with the conditions found surrounding the case, and the circumstances proven to have existed at the time of the occurrence. ”
“6. If thé jury believe the testimony of Eli B. Rogers, there can be no further inquiry. The defendant is entitled to a verdict upon that finding.”

Judges are properly reluctant to call attention to the testimony of particular witnesses, and doubtless in this instance the trial judge thought the subject sufficiently covered by the charge. We think, however, that it would have been better to have given the fourth request, if not the sixth.

It is contended, further, that the administrator had no authority to commence this action, because nearly four years had elapsed after his appointment. There was no plea to the jurisdiction; nor any showing that the estate had been closed, or that the administrator had been discharged. We have recognized the necessity for the extension of the authority of executors and administrators for a period longer than the statutory one, and their acts at a later date have often been sustained. Larzelere v. Starkweather, 38 Mich. 96; Church v. Holcomb, 45 Mich. 37; Norman v. Olney, 64 Mich. 561; In re Beniteau, 88 Mich. 154.

There are other points raised, but, as most of them pertain to the admissibility of testimony of witnesses and the conduct of counsel, we do not discuss them. They raise questions which are governed by rules which should be well understood.

The judgment is reversed, and a new trial ordered.

The other Justices concurred. -


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    JUCHATZ v. MICHIGAN ALKALI CO.
    Master and Servant — Inspection oe Machinery — Elevator Accident — Discernible Defects.
    An employé who is injured by the sudden release of an elevator, due to a defective spring, cannot recover damages from his employer because of the latter’s failure to inspect the appliance, where such employé was a constant, and almost the only, user of the elevator, and the mechanism of the same was simple and in plain view, rendering the defect discernible to him had he exercised ordinary care.
    Error to Wayne; Donovan, J.
    Submitted April 19, 1899.
    Decided July 11, 1899.
    Case by August Jucbatz against the Michigan Alkali Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Charles C. Stewart (J. De Lisle Wakely, of counsel), for appellant.

      Edwin F. Conely and Orla B. Taylor, for appellee.
   Moore, J.

Plaintiff sued defendant to recover for personal injuries received by him while in its employ. He appeals from the judgment of the court below in directing a verdict for defendant.

The record shows plaintiff worked for defendant on a tramway, about 45 or 50 feet high, for nearly or quite eight months. The plaintiff was required to go from the tramway to the ground and returh frequently. To do so, he used an open elevator, which was about 2 feet square. A model of the elevator is before us. The upright posts of the elevator were 3 inches by 6 in size. Grooves in the elevator fitted around these upright posts. The posts were connected at the top by a beam, in which there were pulleys. A rope reached from the top of the elevator to, and passed over, a pulley in about the middle of the overhead beam, and then passed over a pulley near the end of the beam, and to that end of the rope was fastened a heavy iron weight as a counterpoise, which would counterbalance the weight of the car and the person using it. This counterpoise had a groove in the side of it, which fitted around the sides of the upright post. It -was not cased in. Reaching from the bottom of the frame below the elevator to the beam at the top was another rope, upon which the'person in the elevator.pulled, to overcome the small difference between the weight of the counterpoise and the elevator when the person was on it. The uprights of the frame of the elevator were made of oak. Into one of them a notch was cut. Fastened to one of the upright posts between which the elevator ran was an oak dog about a foot long, an inch thick, and a little more than an inch wide. An oak spring about 13 inches long, about an inch wide, about a half inch thick at the top, and much thicker at the bottom, pressed against the side of the oak dog. When the elevator reached the bottom, the oak dog was thrown by the spring into the notch in the frame of the elevator, and kept the elevator at the ground until the dog was released. This dog and spring are also before us. Upon the dog there is a knob, which was pushed by the person using the elevator, to press the dog back. The elevator could not be used except the person using it pressed the dog back, so as to throw it out of the notch. The record discloses that plaintiff, for several months, was in the habit of using the elevator, and was almost the only one who did use it. Upon the day of the accident, he had descended from the tramway, leaving the elevator at the bottom. He procured a pail of water, and, as he stepped partially upon the elevator, it was released without any apparent cause, plaintiff was thrown to one side of the elevator, the counterpoise fell upon him, and he was severely injured. It is claimed for him that he was entitled to a safe place to work; that it was the duty of the master to inspect the appliance; and that, if it had done so, it would have discovered that the spring had lost elasticity, and was defective; that, as a result thereof, the accident occurred, giving plaintiff a right of action.

It will appear, from what we have already said, that the mechanism which held the elevator in place was a simple contrivance. It was in plain view. The plaintiff used it constantly. He was the last person to use it before the accident occurred. He had the same opportunities to know its condition that any one would have. If it was defective, the plaintiff, if he had exercised the care, prudence, and observation which the employe should use in relation to the machinery he uses, would have seen the defect.

“It is the duty of the servant to exercise care to avoid injuries to himself. He is under as great obligation to provide for his own safety from such dangers as are known to him, or are discernible by ordinary care on his part, as the master is to provide for him. He must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work, where there is danger. He must inform himself. This is the law everywhere.” Bailey, Mast. Liab. 159.

See Deer. Neg. § 210; Pilucki v. Spring Works, 117 Mich. 111; Lamotte v. Boyce, 105 Mich. 545; Sakol v. Rickel, 113 Mich. 476; Soderstrom v. Lumber Co., 114 Mich. 83.

The accident was an unfortunate one, and greatly to be regretted; but it did not occur under such circumstances as to give plaintiff a cause of action against the defendant.

Judgment is affirmed.

The other Justices concurred


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    WEIDMAN v. SYMES.
    Bills and Notes — Filling Blanks after Execution — Bona Fide Holder — Liability of Maker.
    One who executes a promissory note by filling in all the blanks upon a printed form except the one designed for the rate of interest, which blank is thereafter filled without his knowledge, is liable to a bona fide holder without notice of the alteration.
    Error’’ to Shiawassee; Smith, J.
    Submitted April 18, 1899.
    Decided July 11, 1899.

      Assumpsit by,-William Weidman against George B. Symes on a promissory note. From a judgment for de- . fendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Sellen 8. Miner, for appellant.

      Watson & Chapman, for appellee.
   Long, J.

This case was in this court at the April term, 1898. It is reported in 116 Mich. 619. On the trial of the case in the court below from which that appeal was taken, the defendant had judgment. The case was reversed in this court, and remanded for a new trial. The new trial has been had, and judgment has again passed for defendant, under the direction of the court, and plaintiff brings error.

It appeared that on September 27, 1890, one John McBride borrowed of plaintiff $100, and gave the note in question as security, .with the defendant as joint maker. The note was drawn up by defendant, and signed by him, in the Exchange Hotel, in Owosso. He handed it to McBride, who took it to the plaintiff, who was only a short distance away, and received from plaintiff $100. The defendant testified that, at the time he signed the note, no interest was stated in it. The note was put in evidence, and appears, upon its face, to draw 10 per cent. There were two blank spaces, and one is filled with the words “ten (10) per cent.,” and the other with the figures “10,” indicating 10 per cent. The plaintiff testified that, when he received the note, these spaces were filled as the note now appears, and that there was nothing on its face to indicate that it had been altered or changed; that, about three months before this suit was commenced, he met the defendant, and informed him that the note had not been paid, when defendant .asked, him if the interest had been paid, and said he would see McBride in regard to the note; that the interest had been paid uppn the note each year until about the time suit was commenced. McBride was not called as a witness. The plaintiff''further testified that, on the trial in the justice’s court, defendant testified thatj when he drew the note and handed it to McBride, he left the interest spaces unfilled, and knew'-, that McBride was to get the money on it from the plaintiff.

At the close of the testimony the plaintiff askted the court to charge the jury:

“In this case, it appears from the undisputed evidence that defendant drew and signed the note in question, except the words ‘ten (10) per cent.,’ and also the figuress ‘10,’ which spaces he permitted to remain in blank; that\ the note was then handed to the other maker of the note, John McBride, who took it and delivered it to plaintiff, and received the full amount of the note, $100; and that, at the time it was delivered to plaintiff, the blank spaces had been filled by writing in the words ‘ ten (10) per cent.’ and the figures ‘10.’ This being true, the defendant would be guilty of negligence; and, it appearing that the plaintiff. did not know that the note had been changed since Symes had signed it, — there being nothing upon the face of said note to indicate that the note had been changed, — the plaintiff would be a bona fide holder, and would be entitled to recover the amount of the note at the present time.”

This request was refused, and the court directed the verdict in favor of defendant. Counsel for plaintiff contends that the rule is that, where one delivers a writing containing blank spaces meant to be filled, the transferee, at least in the case of negotiable paper, has implied authority to complete the instrument by filling the blanks, in the way contemplated by the maker, with matter in general conformity to the character of the instrument.

This request should have been given. The rule is laid down by 2 Daniel, Neg. Inst. § 1405, that:

“ There is a general principle which pervades the universal law merchant respecting alterations, — a principle necessary to the protection of the innocent and prudent from the negligence and fraud of others. That is that when the drawer of the bill or the maker of the note has himself, by careless execution of the instrument, left room for any alteration to be made, either by insertion or-erasure, without defacing it or exciting the suspicions of a careful man, he will be liable upon it to any bona fide holder without notice, when the opportunity which he has afforded has been embraced, and the instrument filled up with a larger amount or different terms than those which it bore at the time he signed it. The true principle applicable to such cases is that the party who puts his paper in circulation invites the public to receive it of any one having it in possession with apparent title, and he is estopped to urge an actual defect in that which, through his act, ostensibly has none. * * * The inspection of the paper itself furnishes the only criterion by which a stranger to whom it is offered can test its character, and, when the inspection reveals nothing to arouse the suspicions of a prudent man, he will not be permitted to suffer when there has been an actual alteration. ”

See, also, Garrard v. Haddan, 67 Pa. St. 82 (5 Am. Rep. 412); Visher v. Webster, 8 Cal. 109; Rainbolt v. Eddy, 34 Iowa, 440 (11 Am. Rep. 152); Harvey v. Smith, 55 Ill. 224, — all of them holding to the.rule laid down in Daniel on Negotiable Instruments.

The note in suit reads, as defendant claims it was drawn and left his hands, as follows:

“ Owosso^Sept. 27, 1890. ■
“ On or before one year after date, I promise to pay to the order of William Weidman one hundred dollars at -. Value received, with interest at- per cent, per annum.
[Signed] “John McBride.
“Geo. B. Symes.”

As the note was produced on the trial, it appeared that the first blank space was filled by words and figures as follows, “Ten (10) per cent.,” and the second blank space by the figures “10.” The plaintiff may well have been deceived when the note was handed him by McBride with the blank spaces so filled. The defendant was negligent in leaving these spaces blank. The note was a printed one, except the date, date of payment, name of payee, and amount. The rule contended for should have been applied by the' court. The learned judge, in his charge to the jury, however, seemed to think that the cases of Holmes v. Trumper, 22 Mich. 427 (7 Am. Rep. 661), Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306), and Bradley v. Mann, 37 Mich. 1, laid down a different rule. In this the court was in error. In Holmes v. Trumper there was no blank space left to be filled. The words “10 per cent.” were added at the end of the note. In Miller v. Finley the alteration was by procuring another signer to the note. And in Bradley v. Mann the words “with interest at 10 per cent.” were added at the end of the note, after the words “Value received.”

The court was also in error in directing the verdict in favor of defendant. It is true that the defendant testified that these spaces were not filled when the note left his hands, yet there were circumstances surrounding the case from which the jury might find that the defendant was mistaken in this. ' He knew that McBride was negotiating a loan with the plaintiff, and that this note was given as security for it. When the plaintiff was pressing for payment, it is claimed that he asked if the interest had been paid upon it. If this is correct, it might raise a question in the minds of the jury whether the spaces were not filled at the time the note left defendant’s hands, or whether the filling in of the spaces was not authorized by him. This was a question for the - jury, as we held in the former opinion.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    PEOPLE v. TOWNSEND.
    1. Criminal Law — Assault by Shooting — Provocation.
    On a prosecution for an’ assault by shooting, respondent is not entitled to an instruction that the jury may consider, on the question of provocation, the alleged fact that the complaining witness had boasted that he would betray respondent’s flaneé, where it conclusively appears that respondent learned all that-he knew upon that subject nearly a month before the shooting, and that complainant and he had parted friends the previous night; especially if his own testimony negatives the theory that it was the information in question that moved him to commit the assault.
    3. Same — Information—Intent.
    A conviction of assault with intent to do great bodily harm less than murder may be had, on proper evidence, under an information charging assault with intent to kill.
    Exceptions before judgment from superior court of Grand Rapids; Burlingame, J.
    Submitted May 3, 1899.
    Decided July 11, 1899.
    Edward L. Townsend was convicted of assault with intent to do great bodily harm, less than the crime of murder.
    Conviction affirmed.

      William F. McKnight and L. E. Knappen, for appellant.

      Horace M. Oren, Attorney General, and Frank A. Bodgers, Prosecuting Attorney, for the people.
   Moore, J.

An information was filed against respondent, charging him with an assault upon Charles Hufford with intent to kill and murder. Respondent was convicted of an assault with intent to do great bodily harm, less than the crime of murder. The case is here upon a bill of exceptions before sentence.

The record discloses that respondent, at the time of the commission of the offense, was a little more than 20 years old. Prior to April 28, 1898, he had been paying attentions to Miss H., and they finally became engaged to be married. They had occasional estrangements, though the engagement continued. April 28th respondent left Grand Rapids for a few days. Upon his return he was informed by one Blum that during his absence Charles Hufford and Miss H. had been riding with each other. He claims he was also told that Hufford said his purpose in going with Miss H. was to betray her. Mr. Hufford denied he had ever made such statement. The respondent expostulated with Miss H., and, she says, threatened to shoot Hufford and one Russell. He also had an interview with Hufford, and proposed they should fight a duel, Hufford to have the choice of weapons. Hufford disclaimed any knowledge of the engagement, and he, the respondent, and Blum went to the house of Miss H., and called her to the window, where she says she was asked if they were engaged, and she]’: replied, “Yes.” As early as April 28th, Miss H. says, though still engaged to respondent, that she had told him “enough times” she would not marry him. After respondent’s return to Grand Rapids, and his expostulating with Miss H., the engagement was broken off. The respondent felt very badly about this, and sought to have it renewed. For the purpose of talking over the engagement, he invited Miss H. to ride with him; and she says, when she told him she would not renew the engagement, he presented her a revolver, and asked her to kill him. He says the engagement at that time was renewed. On the 29th of May, respondent attended the funeral of the father of a friend of his. After the funeral, he drove to the park. Just before getting there, he passed Miss EL, who was with a friend, Miss G., but said nothing to them. Near the entrance of the park, he saw Blum, and inquired of him if he had seen Hufford. Miss H. and her friend continued on to the entrance of the park. Hufford was in the park, with an acquaintance, Miss E. He came to where Miss H. and Miss G. were, and invited them to go into the park and meet Miss E. They accepted the invitation. The respondent’s version of what occurred is as follows:

“I think I met Blum at the park before I spoke to Miss H. I have no recollection of asking him about Hufford. All that I did was to pass the time of day with him. I didn’t ask any questions, that I remember of. I am sure I didn’t. I next saw Miss H., Miss G., and Mr. Hufford as they started to go up the steps towards the pavilion. Hufford was assisting Miss H. The other ladies were going along singly. I walked around awhile. Then I went up in that direction, and saw them as they were about to sit down, or were sitting down. I called Miss H. aside, and asked her if I could speak to her a moment. I wished to ask her if I could spend the afternoon with her. She did not come with me when I asked her to step to one side. She took, I should judge, four or five, six or seven, steps from that place, in a western -or northwestern direction, towards the pavilion. After going this distance, she said, ‘ If you want to say anything to me, you can say it right here.’ I think those were the words. I said, ‘All right, I will.’ At that moment I glanced towards Mr. Hufford, who was at the south end of the bench. I saw him walk around the bench and step towards me. He had his hand — I think it was the left hand — in his hip pocket, and he gave me what I considered a very threatening look. His manner and attitude frightened me somewhat. It looked very strange. I thought that he was going to shoot me. I really believed that. I pulled my revolver and shot at him, — in that direction. When I did so, I still believed he Was intending to shoot me. I believe so yet. I had no design of injuring him. I had not, up to that moment, any design of shooting at him or using any violence towards him. I shot because I thought it was the only way to protect myself. I felt bad and nervous and worried, but I am not what I consider excitable. I would not have fired at him at that time but for that belief that he was going to shoot me. I thought at the time that it was necessary to do that in .order to protect myself, and I think so yet. When I saw him fall, I thought perhaps I might have killed him, and I started, not thinking what I was doing, and ran towards the southwest part of the woods.”

The testimony of Huff or d is that he was standing near the bench which he had procured for the young ladies, with his hand lying on the back of the behch; that he was not advancing towards respondent, and did not put his hand in his pocket, and had no revolver; that, when respondent raised his arm and fired, Hufford flung up his left arm, the bullet passing through it.

Counsel for respondent group the assignments of error as follows:

1. Refusal to submit to the jury certain of respondent’s requests relating to the right of self-defense.

3. Refusal to instruct the jury upon respondent’s theory of provocation, as reducing the offense to assault and battery.

3. Permitting a conviction for assault with intent to do great bodily harm, less than murder.

4. Permitting the prosecuting attorney to put to respondent and his witnesses improper and prejudicial questions, and to address to the jury improper and prejudicial remarks.

Counsel for respondent presented to the court 53 written requests to charge. Many of them were given just as presented by counsel. The substance of others was given in the general charge. Others of them were refused.

As to the first group of assigned errors: The court charged the jury very fully and fairly as to respondent’s right of self-defense, and his right to act upon appearances, even though he was mistaken as to the fact. Each phase of this feature of the case was fully covered.

As to the second group of assigned errors: The court was requested to charge the jury as follows:

“It is claimed on the part of respondent that, a short time before the assault complained of, respondent had been informed that Hufford was attempting to alienate from respondent the affections of the woman with whom respondent was under engagement to marry, and had boasted of his intention to have sexual intercourse with such woman, and that, at the time of the commission of the assault, respondent was laboring under the influence of passion and excitement produced by such alleged misconduct on the part of Hufford. The seduction of one’s wife is regarded in the law the highest provocation which can be given a man. It is for you to determine, under all the evidence in the case, whether the alleged alienation of the affections and the alleged attempted seduction on the part of Hufford of respondent’s affianced wife was an adequate and reasonable provocation, sufficient to disturb respondent’s passion to an extent which might render an ordinary man, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion rather than judgment.”

There were other requests based upon the same theory, and expressing the same idea in different verbiage. Because the court refused to give these requests, it is said he committed error. We cannot agree with counsel in this contention. The record does not disclose any,act or language on the part of Hufford that should have led the respondent to believe Miss H. was likely to be betrayed by him. Whatever he had learned as bearing upon that question occurred nearly a month before the shooting. According to his testimony, the anger which resulted from this information had disappeared. In his testimony, he said of Hufford that he had seen him and visited with him the night before the shooting. “We were good friends at that time. Just a short time before that I took him to the opera-house.” There was no claim in the testimony of respondent that he did the shooting before “cooling time ” had elapsed, and in the heat of passion. His theory was that he thought Hufford was about to shoot him, and would do so unless he shot Hufford. The court very properly refused these requests. Even if the requests were a fair statement of the law, — and we do not express the opinion that they are, — there is no testimony in the case upon which to base them. People v. Finley, 38 Mich. 482; People v. Mortimer, 48 Mich. 37; People v. Durfee, 62 Mich. 487.

The next group of errors is, “Permitting a conviction for assault with intent to do great bodily harm.” It is said the jury should have either convicted of the main offense charged, or of assault and battery, or should have acquitted, and that there was no room for a conviction of an assault with intent to do great bodily harm, less than murder. It is true, the prosecuting attorney, when seeking a conviction of assault with intent to murder, argued to the jury that, under the evidence, they must convict of that offense, or acquit the respondent. That, however, was but the expression of the opinion of counsel as to the effect of the testimony. It was not the opinion of the trial judge, who charged the jury fully, as it was his duty to do, as to what constituted the offense of assault with intent to do great bodily harm, less than the crime of murder, as well as what constituted the main charge and the offense of assault and battery. We have held that, under an information like this, the accused may be convicted of the lesser offense of an assault with intent to do great bodily harm, less than the crime of murder. People v. Prague, 72 Mich. 178. There was an abundance of testimony from which the jury were warranted in finding the respondent guilty of the offense of which they convicted him.

It would not be profitable to discuss the assignments of error in relation to the admission and rejection of testimony, further than to say that, if the court erred at all, it was error in favor of the respondent, rather than against him. So far as any of the argument of the prosecuting attorney was objectionable, the error was cured by the prompt action of the court. We think the respondent has had a fair trial.

The conviction is affirmed, and the case is remanded to the court below for further proceedings.

The other Justices concurred.


author: Montgomery, J.

text:
    CADOTTE v. CADOTTE.
    1. Decrees — Time op Enforcement — Modification.
    While the court has not, after enrollment, power to amend the decree without a rehearing, it retains the power to modify by a subsequent order the time of its enforcement.
    2. Same — Extension of Time.
    A showing that defendant’s delay in making certain payments to complainant, as provided in a decree of divorce, was due to the latter’s failure to furnish a promised abstract of title to the property involved, justifies an order extending the time for making such payments.
    3. Same — Modification in Substance.
    An order requiring the complainant, who has been granted a decree of divorce, to furnish defendant with an abstract of title to land which he was decreed to turn over to her, is a modification in substance of the original decree containing no such provision.
    Appeal from Wayne; Donovan, J.
    Submitted May 4, 1899.
    Decided July 11, 1899.
    Bill by Frank J. Cadotte against Jobanna Cadotte for a divorce. Decree for complainant. From orders extending tbe time for defendant to make certain payments, denying complainant a writ of assistance, and charging him with the cost of an abstract, complainant appeals.
    Modified.

      James M. Goodell, for complainant.

      Howard B. Bloomer, for defendant.
   Montgomery, J.

This is an appeal from orders of the court made subsequent to the granting of the decree. The decree of the court, dated March 16, 1898, filed May 4, 1898, granted a divorce to complainant on the ground of extreme cruelty. It provided for a division of the property of complainant, both real and personal, between the parties, in the following manner: Within 10 days after service upon her of a copy of the decree, the defendant was required to make an inventory of the personal property (which was in her possession), and divide the same into two parcels, and give notice of the same to the solicitor for complainant, and also at the same time give notice to said solicitor of the amount which she would give or take for the one-half interest in the equity of complainant in the real estate. Within five days thereafter, complainant should make his choice of one of the two said parcels of personal property, and also notify defendant, within the same time, of his option to give or take the amount proposed by her for said half interest in said equity in the real estate. In case the defendant should not comply with the above terms within the time limited, the household goods should belong to the defendant, and the real estate to complainant. In case of division of said household goods as provided, defendant should immediately deliver to complainant the parcel selected by him. Should complainant elect to pay defendant for her interest in said equity, she should surrender possession of the real estate within 10 days after payment of the amount to be paid as aforesaid. In case defendant gave notice within 10 days of what she would give or take .for the half interest in said equity, and complainant elected to accept the money, the defendant was required to pay such sum within 30 days after complainant made his election to accept the same, and her failure to pay the'same within such time should operate as an abandonment of her offer to give or take as aforesaid, and should entitle complainant to have all of said equity, and defendant to have all of the household goods. In such case, if one-half of the household goods had been delivered to complainant, they should be returned to defendant.

May 6, 1898, a copy of decree was served on defendant. May láth, defendant served lists of two parcels of personal property, and gave notice that she would give or take $1,000 for the half interest in the equity in the real estate. May 18th, complainant served on defendant notice of acceptance of her offer to give $1,000 for the equity, and selected parcel No. 1 of the personal property. On the same day the personal property was divided, and complainant removed the parcel selected by him. June 20th, the 30-day limitation fixed by the decree for the payment by the defendant of the amount offered by her for complainant’s equity having expired on the 17th, and she having failed and neglected to pay the same, complainant caused a tender to be made to defendant of the amount of her lien on said real estate, viz., $961.75, under the decree in cause No. 17,437. She was at the same time requested to state when she would vacate the premises, and where • she desired complainant to return the personal property.

June 22d, defendant filed a petition for an order extending the time to pay the $1,000, and requiring complainant ’to allow certain set-offs, and to furnish an abstract of title of the premises in question. July 13th, Judge Carpenter, before whom said petition was heard, denied the said application of defendant, without prejudice. July 15th, complainant filed a petition for a writ of assistance as against defendant and Ernest Cobb, a tenant under her. July 27th, Judge Donovan, who heard the above application, made an order dismissing the same, and also requiring complainant to furnish an abstract of title, and extended the time for payment of the amount offered by defendant for complainant’s interest in the real estate 20 days from the date of the order. August 10th, the opinion of Judge Donovan was filed, authorizing the defendant to deduct $26.80 for the abstract of title procured by her from the $1,000, and allowing her to tender the balance into court. August 11th, an order was made by Judge Donovan granting leave to defendant to make a tender to complainant’s solicitor of the amount offered by her, and directing complainant to deliver to defendant a deed of his interest in said premises.

From these orders denying the writ of assistance, ex tending the time to make payment, and charging complainant with the cost of an abstract, complainant appeals.

It is contended by appellant that the court cannot, after enrollment, alter or amend its decree, and that, therefore, the orders in question were unauthorized. Judge Donovan recognized the general rule contended for. In his opinion he said, “The court’s decree to give or take so much for the property, made by Judge Aldrich, can in no way be disturbed, except to aid in executing and performing it, which power we claim to possess. ” We think Judge Donovan did not mistake the power of the court. While the court has not, after enrollment, power to amend the decree without a rehearing, it retains the power to modify by a subsequent order the time of its enforcement. 5 Enc. Pl. & Prac. 1057, and cases cited in note. The case shows that defendant was entitled to the real estate on payment of $1,000, and there is enough to show that she was delayed in her negotiations for the money by the assurance of complainant’s attorney-in-fact that he would furnish an abstract of the property, which he later declined to do. The case was a proper one for an extension of time for performance of the decree. We do not, however, find that the original decree required complainant to furnish an abstract, and think that this requirement was a modification in substance of the decree.

The order will be so modified that the defendant may have 30 days from the entry of the decree in this court to make tender of the $1,000. No costs will be awarded on this appeal.

The other Justices concurred.