author: Hooker, J.

text:
    SANGER v. TOWNSHIP BOARD OF BROWNSTOWN.
    1. Highways — Location—Appeal to Township Board.
    The township hoard has no jurisdiction to hear an appeal from an order of the commissioner of highways laying out a highway until the notices required hy the-statute are properly served.
    2. Same — Insufficient Notice — Effect on Appeal.
    Where persons aggrieved by the determination of the highway commissioner have duly filed their claim of appeal, and have appeared and prosecuted the same at the time and place designated in the notice served upon them by the township-clerk, they have done all that the statute requires of them, and they cannot be deprived of the benefits of their appeal by the failure of the clerk to serve notice upon the commissioner, but are entitled, in case the proceedings on the appeal are set aside for that reason, to another hearing after proper notice.
    Error to Wayne (two cases); Steere and Hosmer, JJ.
    Submitted June 14,1898.
    Decided July 18, 1898.
    Petition by John P. Sanger and others for the opening of a highway in Brownstown township. The township board, upon appeal, reversed the finding of the commissioner that the proposed highway was a public necessity, and Sanger removed the proceedings to the circuit court by certiorari, where the decision of the board was set aside, but “without prejudice to prior proceedings.” Meanwhile the board again decided against the necessity of the highway, and, upon a second writ of certiorari to the circuit court, that decision was affirmed. Sanger brings error from both judgments.
    Affirmed.

      John W. McGrath, for appellant.

      Wisner & Harvey, for appellee.
   Hooker, J.

Between Lake Erie and a road running parallel with the shore, known as the “River Turnpike,” there are four parcels of land upon the south of the projected highway involved in this proceeding, and one to the north of it. Upon the south, Sanger, the plaintiff in certiorari, owns 80 acres of land bordering upon the lake, which is used for summer-resort purposes. West of him are two 80-acre parcels, owned by Wyman, and west of these .a parcel owned by Quick. On the north side Wyman owns the land from the highway to the lake. On January 25, 1897, a petition, signed by 18 freeholders of the township, was presented to the highway commissioner, praying for a highway across the lands of Quick and Wyman, to the line of Sanger’s land. ,A remonstrance, signed by 56 freeholders of 'the township, was presented. The commissioner filed a report that he had heard the proofs of the parties interested, and determined that said highway was a necessary public improvement, and awarded damages to Wyman and Quick, respectively. No plat accompanied the report. Wyman and Quick filed claims of appeal to the township board, with the township clerk, and a meeting of the township board was called for February 27th, to consider the appeals. All members of the township board were present; also Wyman and Quick. Sanger was also there, and was examined on oath. No objection to the proceedings was made on his behalf. The highway commissioner was not present, but the township clerk reported that he had served proper notices of hearing. Upon the hearing, the township board determined that the proposed highway was unnecessary. A writ of certiorari was thereupon taken to the circuit court'by Sanger. The allegations of error were: (1) That no notice of the time and place of meeting to consider the appeals, provided by section 1302, 3 How. Stat., was given to or served upon the commissioner of highways. (2) That at the meeting of the township board no proof of such notice was presented to the board or filed with the township clerk.

The return shows that proper notices in writing of such appeals were served by the township clerk on the appellants and the highway commissioner, by leaving the same at their respective places of residence, except that the notice served on the commissioner, “respondents are informed,” did not show the time and place of hearing the appeals; and, further, that the highway commissioner was not present because, though living and being present in the village at the time the meeting was held, and intending to be present thereat, he was requested by the plaintiff in certiorari to remain away, so that, if the decision of the board should be unfavorable to the opening of the highway, it would be overruled, because there was no proof of service of notices of hearing on file. This statement was based upon affidavits of the supervisor and highway commissioner, which accompanied the return and to which it referred. The cause was heard in the Wayne circuit court on March 31st, and the proceedings of the township board were “set aside for want of jurisdiction, the decision to be without prejudice to prior proceedings.” The cause was then removed to this court by writ of error, by Sanger, whose counsel contends that the decision of the circuit court was erroneous,”,in so far as it declared the reversal of the proceedings of the township board to be without prejudice to the earlier proceedings.

Meantime the township clerk, treating the proceedings as a nullity, called a meeting of the township board for March 31st to consider said appeals, and caused notices thereof to be duly served, and on March 31st the township board met, and heard and determined said appeals, reversing the action of the highway commissioner, as before. On certiorari the Wayne circuit court affirmed this proceeding, and it is now before us upon a second writ of error, issued on the application of Sanger.

The two questions argued are:

1. Whether the first order of the circuit court was erroneous in attempting to declare that the reversal of the decision of the township board was without prejudice to the prior proceedings.

2. Whether the second decision of the township board can stand.

Inasmuch as the only appeal taken from the first order of the circuit court was taken by Sanger, we have no occasion to review the regularity of the first hearing before the township board. Neither party is in a position to claim that it was valid. Sanger has admitted it by claiming that it was not regular. The others are concluded by the judgment, from which they have not appealed. This question, then, resolves itself into the effect of the void action by the township board upon appellants’ rights. They had no further responsibility than to duly make and file their claims of appeal, and appear and prosecute them at such time and place as the board should direct and give them notice of. The failure to give any, or an adequate, notice, was no fault of theirs. But it is contended that the board acquired jurisdiction by the appointment of a time and place, and by meeting at said time and place and hearing the appeals, notwithstanding the fact that the clerk omitted or neglected to give the statutory notice, and that the board might have cured the defect by an adjournment, with direction to the clerk to serve a notice for the adjourned day, and, failing to do this, they would lose jurisdiction. We are cited to cases of loss of jurisdiction by justices of the peace through failure to keep the proceedings alive by proper adjournments, as supporting this contention. This view seems at variance with the decisions in the following cases: In Tefft v. Hamtramck Township Board, 38 Mich. 558, it was said that “notification was a prerequisite to their right to proceed and make the order, and the validity of the order cannot be presupposed for the purpose of proving by its recital that a preliminary step, essential to its validity, was actually taken.” In Brazee v. Raymond, 59 Mich. 548, which was a similar case, it was said: “ The notice was a prerequisite to the right of the board to proceed.”

We are of the opinion that the appeal was properly taken, and that, until the proper notices were served, the township board had no jurisdiction to hear the appeal, notwithstanding the appointment of a day for hearing by the clerk, and that any attempt to do so was futile and a nullity. The action of the board being void, we see no reason why a new day might not be set and notices served. Had the clerk refused to appoint a day or serve notices in the first instance, mandamus would have compelled it, even at the instance of the appellees, who, if the appeal had the effect to vacate the commissioner’s decision, might have no other remedy. Would this right be cut off by an unlawful assumption óf jurisdiction? We think there is no good reason for denying the right to serve a new notice, and that it is supported by the view hitherto expressed in relation to the essentials of jurisdiction. As to the first order, we think it a proper, though unnecessary, expression of the circuit court upon the status of the prior proceedings.

Both judgments are affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WRIGHT v. VILLAGE OF PORTLAND.
    Municipal Corporations — Presentation oe Claims — Verieioation — Waiver.
    A claim for injury to land having been presented to a village council at the request of one of the trustees, a committee was appointed to investigate it, who caused a survey to be made for the purpose of ascertaining the amount of damages, and the council referred the matter to the president for settlement. At his request, the claimant appeared before him, and tried to make an adjustment, objection being made to the amount of the claim. No objection was raised that it was not verified and itemized, as provided by Act No. 3, Pub. Acts 1895, chap. 5, § 7, until the village filed its plea in a suit to enforce the claim. Held, that it was a question for the jury as to whether the council had waived the defense.

      Error to Ionia; Davis, J.
    Submitted June 14, 1898.
    Decided July 18, 1898.
    Case by Guy Wright and Cornelius Franks, infants, against the village of Portland, for injury to land. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Reversed.

      McGarry & Nichols, for appellants.

      B. A. & W. E. Hawley, for appellee.
   Moore, J.

The plaintiffs sued defendant to recover damages for inj ury done to their lands by seepage from a pond owned by defendant, and for entering upon the land of plaintiffs, and removing therefrom about 900 yards of gravel. Defendant pleaded the general issue, and gave notice, by way of defense, that a verified and itemized claim had not been presented to the village council for audit and allowance, as required by section 7, chap. 5, Act No. 3, Pub. Acts 1895, under which act the village is incorporated. At the trial, objection was made to the introduction of any testimony, for the reason that the declaration did not show the claim had been presented as above stated. The objection was sustained. The plaintiffs then asked leave to amend the declaration so as to show that plaintiffs had presented their claim to the village council; that it was presented at the request" of one of the trustees, and was acted upon by the council; that a committee was appointed to investigate the claim, who caused a survey to be made, for the purpose of ascertaining the amount of damages; that the council then referred the matter to the president of the council, to settle the claim, and that at his request the plaintiffs appeared before him, and tried to make an adjustment; that the only objection to the payment of the claim was to the amount, and not because it was not verified or certified to, as required by the statute; that suit was brought, and that it was not until the plea was filed that any notice was given that objection was made to the claim as presented for the reason it was not properly itemized and verified. Counsel offered to introduce proof to sustain the allegations of the declaration when thus amended. The court refused to permit the amendment, not upon the ground of exercising his discretion, but put it upon the ground that the council had no authority to delegate the settlement to its president, and that the declaration as amended would not state a cause of action, and, if sustained by proofs, plaintiffs could not recover.

The only question necessary to be decided is: Did the offered proof raise a question of waiver, which ought to have been submitted to the jury? It is insisted on the part of the village that the village council cannot waive the provisions of the statute. It is said: “The right of waiver is subject to the control of public policy, which cannot be set aside or contravened by any arrangement or agreement of the parties, however expressed,” — citing 28 Am. & Eng. Enc. Law, 538. A reference to this authority shows what the writer had in mind when we read what follows: “Thus, an agreement waiving the defense of usury is void, and so also is the ratification of a forgery, or a waiver of a violation of Sunday laws,” etc. We do not see how any question of public policy is involved here, so as to affect the question of waiver. Had this claim been allowed and paid, we do not think it could be said an illegal claim or one contrary to public policy had been adjusted, simply because the claim was not verified. This requirement of the statute is for the benefit of the village, and is a matter which may be used by it by way of defense. This court has construed a similar statute several times. In Germaine v. City of Muskegon, 105 Mich. 213, where the claim was not rejected for the reason it was not properly verified, it was said the defect was therefore waived. In Canfield v. City of Jackson, 112 Mich. 120, the defense was not set up until the case was tried. It was then raised in an application for a new trial. It was held that was too late. The case of Griswold v. City of Ludington, 116 Mich. 401, is a case much like this. The claim was presented. The council did not do as much nor take as formal action in relation to it as counsel offered to prove was done in this case. The claim was not verified. The court said:

“A waiver is a mixed question of law and fact, and each case must necessarily depend much upon its own peculiar circumstances and surroundings. It is a question for the court to determine whether there is any evidence tending to show a waiver; but, when there is any evidence, the jury must determine what the intent of the party was, as the question of waiver is usually one of intent, as indicated by the acts and declarations of the party.”

It was held the council might-waive the verification of the claim, and the court should have submitted the question to the jury whether it had done so or not.

In this case, if counsel could show what he offered to show, the question should have been submitted to the jury to decide whether there was a waiver on the part of the council.

• Judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    HUGHES v. JORDAN.
    1. Takes — Collection—Conclusiveness op Decree.
    A valid decree for the sale of land delinquent for taxes forecloses all questions as to the regularity of the prior proceedings; and hence an objection cannot afterwards be raised that no demand for the payment of the tax was made by the township treasurer upon the person assessed, nor any effort made to collect the same from his personal property, as required by the statute.
    2. Same — State Lands — Purchase Price.
    Under section 84 of the tax law of 1898 (Act No. 206, Pub. Acts 1893), providing that any person’may purchase State tax land by paying the amount for which the same was bid off to the State, with interest thereon, together with the other taxes “remaining a lien” on the land at the time of purchase, a deed of State land, issued without the payment of a tax for a subsequent year, which was a lien on the land at the time of purchase, is void, even though such tax had not yet been returned by the collecting officer.
    3. Vendor and Purchaser — Quitclaim Deed.
    A purchaser by quitclaim deed obtains no better title than that held by his grantor.
    Appeal from Muskegon; Russell, J.
    Submitted February 2, 1898.
    Decided July 18, 1898.
    Petition by Edward Hughes against Patrick Jordan for a writ of assistance. From an order granting the writ, respondent appeals.
    Reversed.

      Stephen H. Clink, for petitioner.

      M. C. Kelley and Brown & Adams, for respondent.
   Hooker, J.

Hughes, the petitioner, is the purchaser of the premises in controversy from Clink, who bought them from the State, said lands having been bid in for the State for the tax of 1893. The auditor’s deed was issued to Clink on July 27, 1897, shortly before he deeded to Hughes. On September 20, 1897, application was made by Hughes to the court which rendered the decree for a writ of assistance, to enable him to obtain possession. The defendant, Jordan, purchased the lands from Kelley, by contract dated April 2, 1897. Kelley had possession from April, 1890, under a contract. The defendant alleged in his answer, and offered to prove, that, after the issue of the deed from the auditor general to Clink, Kelley tendered an amount equal to the taxes of 1893 and 1896 to the auditor general, and demanded a deed; that no demand for payment of the tax of 1893 was made by the township treasurer of Kelley, as provided by section 46 of the tax law of 1893 (Act No. 206), although said treasurer knew that Kelley claimed to own the land, and had paid the tax for 1892 to him; that no attempt was made by the township treasurer to collect the tax from the personal property of said Kelley, which might have been done; and that the deed was void for the further reason that it issued without payment of the tax of 1896, which was at that time a lien upon the premises, and which is still unpaid. The answer concluded with a prayer “ that the decree be reopened and vacated, and a rehearing granted,.and defendant allowed to show what portion of the tax for which the land was sold is illegal and void, and that the sale and deed be declared void, and defendant be allowed to pay such taxes as are legal.” The court did not permit such proof to be made, denied a rehearing, and ordered the writ of assistance to issue as prayed.

Most of the questions raised relate to irregularities anterior to the decree under which the State purchased the land, and these are covered by the recent cases of Cole v. Shelp, 98 Mich. 58; Muirhead v. Sands, 111 Mich. 487; Hilton v. Dumphey, 113 Mich. 241; Auditor General v. Hutchinson, Id. 245.; and Auditor General v. Sparrow, 116 Mich. 574. The following questions are, however, open upon this record, viz.:

1. Whether the circuit court had jurisdiction in the tax proceedings under which the State purchased.

2. Whether the proceedings subsequent to decree were void.

3. Whether the purchase by Clink of the State’s title was accompanied by payment of the tax of 1896, and, if not, whether that fact rendered the deed void.

4. Whether a writ of assistance may be issued in case the petitioner’s title is sustained.

5. Whether it should be denied, and a rehearing in the original tax case granted.

We may dispose of the first of these questions by saying that there is nothing in the testimony offered which tended to show a want of jurisdiction in the original proceedings, the questions presented being within the principles recognized in the cases hereinbefore cited.

Whether Clink should have paid the tax of 1896 when he bought the State title involves a question of fact. It does not appear when the money was paid and title purchased, though from the defendant’s brief we infer that it was some time before the deed was issued, and perhaps before the auditor general was advised that the land was returned to the county treasurer as delinquent, and possibly before such return. ■ Inasmuch, however, as the answer alleges a violation of section 84 in that regard, the proof should have been taken, unless we are to say that the failure to pay such tax would not render the deed void. It may be said that, the title being in the State, others have no interest in the amount received by the State for its title, and that subsequent purchasers for value may rely upon the title conveyed by the State. Here, however, the petitioner relies upon a quitclaim deed, and is therefore on no better footing than his grantor; and, as will be seen by section 85, the owner may be interested in having subsequent taxes paid, and it may also happen that he has himself applied to purchase the lands, offering to pay all taxes and charges required by law to be paid by the purchaser. That is said to have been done in this case.

The auditor general has no authority, under section 84, to sell and.deed State lands, except upon receiving the price required by law, and this the purchaser is bound to know. The taxes become a lien upon the land early in December,— a fact that is known to the auditor general, and of which the purchaser must take notice. Before the auditor general is authorized to part with the title of the State, he must be paid all taxes which remain a lien upon the land. After the time that taxes have become a lien, both purchaser and auditor general are aware that taxes have become due and payable which have not been returned. The purchaser can procure and the auditor general may require evidence that they have been paid, if such is the fact. It may be said that this imposes onerous burdens upon the purchaser; but they are not so serious as to justify the disregard of an unambiguous requirement of the statute (section 81). If this was not done, and such taxes remained a lien on the land when the deed was made5 the title was not conveyed to Clink, and the right of other's who might comply with the law to purchase was not cut off. As we have no means of determining the fact (proof being excluded upon this point), the order must be reversed, and the cause remanded for a rehearing, with costs to the appellant.

The other Justices concurred.


author: Montgomery, J.

text:
    DETROIT FIRE & MARINE INSURANCE CO. v. WOOD.
    1. Tax Sales — Effect of Confirmation — Purchase by State-Validity.
    A tax sale to the State, which has been reported to the court and confirmed, will not be set aside because the land was struck oil to the State on the first day of the sale, in violation of a provision of section 70 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), even if the further provision of said section, that no sale shall be set aside after confirmation, except where the taxes were paid or the property was exempt from taxation, is an unlawful restriction on the general exercise of equitable powers.
    2. Same — Procedure—Date of Sale.

      It seems that the further provision of said section, that “the sale and all proceedings thereon shall be the same as if made on the first day fixed therefor,” was designed to fix a time from which the redemption period should be computed, and does not authorize the dating of certificates and reports incident to the proceedings otherwise than in accordance with the facts.
    3. Same — Report to 'Auditor General — Time for Making.
    Under the provision of said section that, as soon as sales are confirmed, the county treasurer shall report the same to the auditor general, the treasurer is entitled to a reasonable time in which to make his report; and 10 days is not an unreasonable time to take for that purpose.
    4. Same — Ineffectual Effort to Redeem — Rights of Owner— State Lands — Purchase Price.
    The owner of land bid in by the State for taxes, after the expiration of the period for redemption, paid to the county treasurer a sum supposed to be sufficient to redeem from the sale and to pay the taxes of a subsequent year. The auditor general, when the transaction was reported to him, rejected the redemption certificate, but did not refund the subsequent taxes, and afterwards sold the land to a third person on payment of the amount of the State’s bid. Held, that he should have treated the attempt to redeem and to pay subsequent taxes as a single transaction, and wholly unavailing, and should have required the purchaser to pay the subsequent taxes, as provided by section 84 of tbe tax law, failing which the deed issued to him was void, under Hughes v. Jordan, ante, 27.
    Appeal from Ingham; Person, J.
    Submitted February 2, 1898.
    Decided July 18, 1898.
    Petition by the Detroit Fire & Marine Insurance Company against Eugene B. Wood and the auditor general to set aside a tax deed, and to apply certain redemption money to the purchase of the land. From a decree dismissing the petition, petitioner appeals.
    Reversed'.

      Moore & Goff {Edward Cahill, of counsel), for petitioner.

      Charles W. Nichols {A. A. Ellis, of counsel), for defendant Wood.
   Montgomery, J.

March 16,1891, Frank S. Bagg and Eva Bagg mortgaged to the Detroit Fire & Marine Insurance Company the parcels 'of land described as situated in the city of Lansing, county of Ingham, and State of Michigan, and described as the “west ninety-nine (99) feet of lot number four (4), and the east eleven (11) feet of lot number five (5), of block number one hundred and four (104), of the city of Lansing.” Said mortgage was foreclosed, and the petitioner (mortgagee) became the owner of the premises, April 2, 1895'. Under date of March 27, 1895, H. J. Bond,.treasurer of Ingham county, where the lands aforesaid are situated, wrote the following letter of information to W. A. Moore, who was president of the petitioner corporation, in response to an inquiry asking for a statement of the unpaid taxes for 1891 and 1892:

“County Treasurer, Ingham County, H. J. Bond, Treasurer.
“Mason, Mich., March 27, 1895.
" Dear Sir: Inclosed please find statement of unpaid taxes as requested, interest computed for payment. Subdivision of section: West three-fifths lot 4, and east 11 feet of lots 5 and 6, block 104, tax for 1891 and 1892, $342.60. The above is the amount if paid this month or next. Yours respectfully,
“H. J. Bond, Co. Tr.”
And again wrote Mr. Moore, under date of April 8,1895:
“County Treasurer’s Office, H. J. Bond, Treasurer.
“Mason, Mich., April 8, 1895.
“W. A. Moore,
“Detroit, Mich.
Dear Sir: You have a complete statement from me of all uncollected taxes against the property in question, and after property is sold for taxes you cannot redeem the State and county without redeeming the whole tax. I send you statements of amount required to pay taxes for the several years, and can’t see how can make it any plainer. Yours respectfuHy,
“H. J. Bond, Co. Tr.”
Thereupon Mr. Moore sent to Mr. Bond the sum of $311.50, which was the amount stated to be necessary to redeem the lands of the petitioner for taxes for 1891 and 1892, and received a letter from the county treasurer inclosing redemption receipts. The letter of the county treasurer is as follows:
“County Treasurer’s Office, H. J. Bond, Treasurer.
“Mason, Mich., April 10,1895.
“W. A. Moore, •
“Detroit, Mich.
‘Dear Sir: Inclosed please find receipts for redemption of ’91 and ’92 taxes. The city treasurer of Lansing has not made his returns to me yet for the 1894 taxes.
“Yours respectfully,
“H. J. Bond, Co. Tr.”
* The certificate of redemption for taxes of 1891 was as follows:
“State Bid.
“ County Treasurer’s Redemption Certificate.— I hereby certify that the sums stated below are due for the redemption of the following described tracts of land, sold for taxes assessed in the county of Ingham for the year 1891: Sales book number 54. Description, west 99 feet lot 4, and east 11 feet lot 5, of block 104, city of Lansing. State tax, $10.35; interest on State tax, $1.44; collection fee, $3.60; expense, $0.68; county tax, $15.55; interest on ■county tax, $2.18; other taxes, $64.20; interest on other taxes, $8.97; amount of bid, $106.97; total bids, $106.97 ; interest from December 3, 1894, to April 10, 1895, five months, at eight per cent, per annum, $3.53; aggregate, $110.50.
“ Given under my hand, this 10th day of April, A. D. 1895.
“H. J. Bond,
“County Treasurer.
“ County Treasurer’s Office, Mason, Mich., April 10, 1895.
‘ ‘ $110.50. Received of William A. Moore, of Detroit, the sum of $110.50, in full of the above.
“H. J. Bond, Co. Tr.
“Countersigned: James Blackmore,
“County Clerk.”'
The certificate of redemption for taxes of 1892 was as follows:
“State Bid.
“No. 214. County Treasurer’s Redemption Certificate. —I hereby certify that the sum stated below is due for the redemption of the following described tracts of land, sold for taxes assessed in the county of Ingham for the year 1892: Sales book No. 103. Description, W. 99 ft. lot 4, and E. 11 feet lot 5, block 104, city of Lansing. State tax, $6.67; interest on State tax, $0.94; collection fee, '$6.57; expenses, $0.64; county tax, $9.63; interest on ■county tax, $1.35; other taxes, $148; interest on other taxes, $20.72; amount of bid, $194.52; total bids, $194.52; interest from December 3, 1894, to April 10, 1895, five months, at 8 per cent, per annum, $6.48; aggregate, $201.00.
“Given under my hand, this 10th day of April, A. D. 1895.
“H. J. Bond,
“County Treasurer.
‘“County Treasurer’s Office, Mason, Mich., April 10,1895.
■“$201.00. Received of William A. Moore, of Detroit, the sum of two hundred one dollars and-cents, in full of the above.
“H. J. Bond,
“County Treasurer.
“Countersigned: James Blackmore,
“County Clerk.”

The county treasurer made an entry on the tax record for 1893 immediately after the description of the premises sold:

“William A. Moore, Detroit, Michigan, redeemed west 99 feet lot 4, and east 11 feet lot 5, block 104, $110.50, April 10, 1895.”

A triplicate of the redemption certificates for taxes of 1891 and 1892 was sent to the auditor general by the county clerk about May 1, 1895. The following copy of a letter of the auditor general was offered in evidence :

“A. J. P. June 20, 1895.
“ Ingham County Treasurer,
“Mason, Mich.
“Dear Sir: We return herewith redemption certificate number 267. The description contained therein is not subject to redemption, but is held by- the State, and is subject to sale as State tax land.
“Very respectfully,
“Stanley W. Turner,
“Auditor General.”

This letter of the auditor general was not received by the county treasurer. The first that the county treasurer knew that the auditor general would not accept the redemption certificate was near August 20, 1896 (cannot give exact date), when defendant Wood came to his office at Mason, Mich. He was surprised, and wrote W. A. Moore as soon as Wood went away. About August 20, 1896, defendant Wood went to the office of H. J. Bond, county treasurer, at Mason, and wanted to look at the tax record for the sales of 1893 (taxes of 1891). After looking at the entry, the county treasurer testified that he said:

“I have just made application to pay that at the auditor general’s office; but there is no harm done yet. I see it is paid, here, and, when I go back, I will withdraw my money.”

At that conversation defendant Wood told the county treasurer he had not received his deed. Defendant Wood testified that he said: “If I am obliged to, of course I will have to take my money back.”

The certificate to the auditor general was dated December 4, 1893, which was the day for the sales to commence, being the first Monday in December.

On the 21st of August, 1896, Wood received a deed of the land from the auditor general, having applied for the same on August 11, 1896. This petition was filed to have the deed set aside, and to have the money remitted by Mr. Moore to the county treasurer applied towards a redemption or purchase of the land by the original owner, the insurance company. Three grounds are urged: First, it is claimed that the proceedings are irregular, in that it, does not appear by, the report of sale that the lands were bid off to the State at a time when the county treasurer had the right to ihake sale to the State; second, that the report of sale was not filed within the time required by law; and, third, that the transaction of the attempted redemption should be treated as an application to purchase.

1. The report to the auditor general of the sale of the land is dated December 4, 1893, which was the first day of sale. Section 70 of the tax law (Act No. 206, Pub. Acts 1893) provides that,' — ■

“ If any parcel of land cannot be sold for taxes, interest, and charges, such parcel shall be passed over for the time being, and shall on the succeeding day, or before the close of the sale, be re-offered; and if on such second offer, or during such sale, the same cannot be sold for the amount aforesaid, the county treasurer shall bid off the same in the name of the State.”

And it is urged that the date of the certificate as of the first day of the sale negatives any presumption that this provision of the statute was complied with. Counsel for defendant call attention to a clause of the same section providing that “the sale and all proceedings thereon shall be the same as if made on the first day fixed therefor,” and urge that this provision justifies dating all the sales as of the first day. There is force in the petitioner’s contention, and it is doubtful if the provision last quoted was intended to authorize a dating of the proceedings not according with the facts. The chief purpose of this provision was, as we construe it, to fix a time from which the year of redemption provided in section 74 will begin to run. But, however this may be, the sale was reported to the court, and confirmed. Section 70 provides that no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation. Counsel for the petitioner raise the question whether the general exercise of equity powers can be legitimately restricted by such a provision. We need not affirm or deny the legislative power in the premises. We think the irregidarity ought not to avail after confirmation, even if the power of the court is not restricted by this provision. The decree and sale under it are ordinarily final, and, if the petitioner has in this case been subjected to any wrong, it does not arise out of any irregularity attending .the sale.

2. Section 70 of the law provides as follows: “As soon as sales are confirmed, the county treasurer shall make full reports of the same to the auditor general.” The report was received at the auditor general’s office January 10,1894, some 10 days after the sale stood confirmed. No precise time is fixed for making this report. A reasonable time must of necessity be allowed for making this report, and we think the time taken in the present case not unreasonable.

3. The main question discussed by counsel in this case is not free from difficulty. The payment made by Mr. Moore to the county treasurer, and by him forwarded and credited to the auditor general, was intended to be used to accomplish two things: First, the redemption of the land from the sale for taxes of 1891; second, the payment of the taxes of 1892. A sum was remitted, sufficient, as was supposed, to accomplish this purpose. Both the county treasurer and Mr. Moore were mistaken as to the right to redeem from the 1893 sale. The whole transaction was reported to the auditor general, and he, without setting aside the attempt to redeem and pay the taxes of 1892, preferred to treat the payment to the county treasurer as insufficient to entitle the petitioner to a deed on the 1893 sale (as it probably was not). The result, therefore, was that not only was the intent and desire of the petitioner not accomplished, but, by treating the payments as separate transactions, the payment of the taxes of 1892 not only failed to relieve the lands of the petitioner as intended, but made it possible for Mr. Wood to become purchaser on payment of $132.27, instead of paying the whole tax due, as he would have been bound to do if the transaction between the petitioner and the county treasurer had been treated as an entirety, and the whole payment declined. The inequity of such a result is apparent. True, the county treasurer had not the right to accept redemption of the lands from the 1893 sale, and he did have the right to accept payment of the 1892 taxes; but Mr. Moore, as was well known, did not intend or attempt to pay this tax to discharge a burden resting on the lands of the State. The State, then, had the benefit of $201 of petitioner’s money, which it was not entitled in equity to retain. Before Wood took his deed, he had notice of the facts sufficient to put him on inquiry; and not only is this true, but it is also true that it is only by reason that the State has made an application of the money of petitioner not intended by it that Mr. Wood was enabled to obtain a deed of the land for the small sum paid. We think it is only equitable to hold that the auditor general should have treated the effort of Mr. Moore as wholly unavailing, and that he should have required payment of the taxes of 1892 as a condition to deeding the lands to Wood. Wood, having paid only a portion of the amount due, was not entitled to a deed. See Hughes v. Jordan, ante, 27.

The decree will be reversed, and the deed to Wood set aside, on payment of the amount paid by him, with interest.

The other Justices concurred.


author: Long, J.

text:
    SULLIVAN v. McGRAW.
    Surgeons — Operation on Wrong Limb — Negligence—Question for Jury.
    Plaintiff, who had treated with defendant, a physician and surgeon, for a disease affecting particularly his right leg, upon defendant’s advice, went to the hospital for an operation. Under plaintiff’s directions, the right leg was prepared by a nurse, and he was placed under the influence of chloroform. Defendant, believing the wrong leg had been prepared by mistake, asked plaintiff’s brother which leg plaintiff wished operated on. The brother, being unable to tell, requested defendant to wait until he could telephone plaintiff’s family, which defendant consented to do. While the brother was at the telephone, plaintiff’s father arrived, and said that the left leg was the one, and defendant proceeded to operate on that leg. There was evidence that the right leg was discolored and inflamed, while the left one was not. Held, that the question of defendant’s negligence was for the jury.
    Error to Wayne; Carpenter, J.
    Submitted June 14,, 1898.
    Decided July 18, 1898.
    Case by James P. Sullivan against Theodore A. Mc-Graw, a surgeon, for malpractice. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Frank C. Cook and B. E. Van Syckle (M. J. Lehman, of counsel), for appellant.

      Keena & Lightner, for appellee.
   Long, J.

This action is brought to recover damages for the wrongful operation by defendant upon the plaintiff’s left leg, — the claim being that defendant was employed to operate upon the right leg; that, after putting the plaintiff under the influence of chloroform, the defendant wrongfully and carelessly operated upon the left leg, thereby causing plaintiff great pain and suffering. Defendant is a practicing physician and surgeon in the city of Detroit. The case was tried before a jury, and the court directed the verdict in favor of defendant. Plaintiff brings error.

The only question here is whether there was any evidence in the case under which it should have been submitted to the jury for their determination. It appears from plaintiff’s testimony that he met the defendant professionally in October, 1896; that his right leg was then very sore. Defendant gave him some medicine from time to time during the following winter, but there seemed to be no improvement. Defendant then advised him to go to the hospital, and he would operate upon it. On Tuesday, May 11, 1897, plaintiff went to the hospital. He was then very lame, using' a pair of crutches, and walking with them and using his left leg. The next morning the nurse prepared him for the operation by shaving the right leg from the knee down, as the operation was to be upon the shin bone. After it was shaved, some wash was put on and the leg bandaged. Nothing was done with the left leg. Plaintiff was then taken to the operating room of the hospital by the hospital doctor, and given chloroform. He testifies that he never told the defendant, or any one else, that he wanted his left leg operated upon; that, when he came out of the influence of the chloroform, he found his left leg was paining him, and then for the first time found that the defendant had operated upon that one; that he was in the hospital five weeks, and suffered great pain from that operation; that the defendant came to see him after the operation, and told him he would operate on the right leg on the following Saturday, which was done; that the right leg did not pain him after the operation on that. On his cross-examination, he testified that both legs had troubled him for several years; that in 1893 sores came out on the shin bone of the left leg; that since 1893 it had not broken out, though it had troubled him, and he took medicine for it; that it was healed, and was not bothering him, at the time of the operation, but that the right leg had continued to be sore. He was asked if the defendant had not advised his going to the hospital and having both legs operated upon, and denied that he was so advised. He further testified that a week before the operation, when the defendant advised him to go to the hospital for the operation, he showed him both legs, so that he could compare them; that there had always been an enlargement of the shin of the left leg.

The nurse testified that ,he prepared plaintiff for the operation; that he had a swelling on both legs, and witness asked him which leg was to be operated upon, and he said the right leg, so he prepared that; that the flesh on the right leg was a little discolored. Dr. Hackett was sworn for plaintiff, and testified that he examined his legs in February, 1897, and prescribed for the right one; that it was swollen and discolored; that it showed symptoms of inflammation, heat, redness, pain, and swelling; that there was no evidence of inflammation in the left leg, but that it appeared to be in a healthy condition. William Sullivan, a brother of plaintiff, was called, and testified that he was present at the operation; that he held plaintiff’s pulse while the chloroform was being administered by Dr. Atridge; that, when plaintiff was put on the operating table, both legs were exposed to the defendant; that the defendant then said: “See here! you fellows have made a mistake; you have prepared the wrong leg for the operation;” that Dr. Van Slyke, who was present, said he did not think it possible, and defendant repeated, “You have prepared the wrong leg. ” Witness then testified:

“ He asked me which he wanted operated upon. I told him I was confused, and I did not know. * * * He said he was sure it was the left one, and that they had prepared the wrong leg. He then asked Dr. Steinbrecher, who was standing there, to prepare the left leg. * * * Whiletheywerepreparing.it, I said, ‘You better wait a minute, until I go and telephone my folks, so we will be sure.’ And he asked me how long it would take. • I said, ‘A couple of minutes.’ He said, ‘All right.’ So I said, ‘Will you wait?’ and he nodded his head yes. I called up the ’phone, and had to wait, and Dr. Troy came * * * and said, ‘They are operating on his left leg.’ ”

The witness further testified that, a short time after the operation, the defendant went into the plaintiff’s room, and asked him which leg he wanted operated upon, and plaintiff told him his right leg, and defendant then said: “ Why, I thought it was the left leg. * * * You told me down stairs that it was the left leg.” And plaintiff then said, “I must have been asleep.” Witness further testified that the defendant spoke to the plaintiff when he was on the operating table. He told Dr. Atridge to stop giving him chloroform, and then asked plaintiff which leg he wanted operated upon, but plaintiff made no. answer. He asked again, “ Is it the left leg ? ” and plaintiff groaned a little, as though he said ‘ ‘Yes,” but that he was entirely unconscious at the time. This was just before the witness went to the telephone.

The father of plaintiff was called as a witness, and testified that he arrived at the hospital after plaintiff had been put on the operating table; that they showed him both legs, and the defendant said, pointing to the right leg, “Is that the right leg?” “ ‘No,’ I said, ‘the other leg.’ I had.my mind on that leg all the time. I thought Dr. McGraw could not make a mistake. ” Witness further testified that he did not go to the hospital at plaintiff’s request; that he told him not to come.

At the conclusion of the plaintiff’s proofs, the court, at the request of counsel for defendant, directed the verdict in favor of defendant. The court stated to the jury, among other things:

“ It seems to me that this case turns upon the question of whether or not the doctor was negligent in operating upon the left leg, instead of upon the right leg. ' If I should leave this to you, I would have to say to you, if the doctor made these inquiries, and was told by the father that that was the leg to operate upon, that would justify him. Now, there is no doubt that he did; there is nothing to leave to you on the question of negligence, it seems to me. It is earnestly insisted upon the part of plaintiff that this case does not depend upon the doctor’s negligence, but does depend upon the want of consent or absence of consent upon the part of the plaintiff. I do not so understand the law. Of course, if there had been no consent at all to any operation, it would have been clearly trespass to have touched the plaintiff’s person. But plaintiff had gone there for the purpose of having an operation performed upon him. To touch his person was not technically a trespass; but in this case a mistake was ‘made in the choice of legs to be operated upon. The liability, in making that mistake, must depend upon whether or not the doctor was negligent; and, as I say, there was nothing in the case which would warrant you in finding a verdict on that theory.”

There is no claim in the present case that the doctor did not have the skill and knowledge necessary for the operation. The declaration avers negligence on the part of defendant in operating upon the left, instead of the right, leg. We think the court below was not in error in saying that the only question in the case for determination was whether or not the defendant was negligent in operating upon the wrong leg. That is the averment in the declaration, and the only case which the plaintiff’s proofs tended to establish. We cannot, however, agree with the court below that there was no evidence tending to establish that fact. Plaintiff had put himself under the care of the defendant, and, as he says, for the purpose of an operation upon his right leg. According to plaintiff’s statement, .the doctor knew which leg was to be operated upon. The right leg was prepared by the nurse, under the plaintiff’s direction. When in the operating room, the defendant himself disputed the fact that the leg so prepared was the one to be operated upon. He asked the brother, who says he got confused, and was unable to state, but asked time to make the inquiry by telephone, and started to do so; but the defendant, instead of waiting, operated before the brother returned. The only excuse given, so far as this record shows, is that the father came in at that moment, and directed the left leg to be operated upon. The father was not there at the plaintiff’s request; on the contrary, he was told to remain at home. It may be true that the doctor might be excused for the operation upon the wrong leg if he had waited until the brother returned, and had been advised that the family said that it was the left leg to be operated upon. Perhaps that, in connection with what the father said, might show that he was in the exercise of due care, if there were no other testimony which had a tendency to show the want of such care as he should have exercised. But there is some testimony tending to show that the left leg was not discolored or inflamed, while the right leg was. In addition to this, the plaintiff testifies that, at the time the doctor advised him to go to the hospital, it was for the purpose of an operation upon the right leg, and not upon the left. The case should have been submitted to the jury for their determination whether the defendant exercised that degree of care which, under the circumstances, he was bound to exercise.

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

Montgomery, Hooker, and Moore, JJ., concurred. Grant, C. J., took no part in the decision.


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    YOUNGS v. PETERS.
    1. Tax Sales — Validity—Enrollment of Degree.
    A tax sale is not void because made before enrollment of the decree; the general provisions of the statute and court rules in relation to enrollment not being applicable to tax proceedings.
    2. Same — Report to Auditor General — Time for Making.
    A report of a tax sale, made by the county treasurer to the auditor general 12 days after confirmation of the sale, is a sufficient compliance with the requirement of section 70 of Act No. 206, Pub. Acts 1893, that such report be made “as soon as the sale is confirmed.”
    3. Same — Constitutionality of Agt — Stare Decisis.
    Certain objections to the constitutionality of the tax law of 1893 are overruled, upon the authority of Ball v. Ridge Copper Co., ante, 7.
    Appeal from Marquette; Stone, J.
    Submitted October 8, 1897.
    Decided July 18, 1898.
    Petition by Clark W. Youngs against Robert Peters and others for a writ of assistance. From an order granting the writ, respondents appeal.
    Affirmed. ■

      W. S. Hill (M. J. Sherwood and J. E. Ball, of counsel ), for petitioner.

      Clark & Pearl, for respondents.
   Long, J.

Petition' for writ of assistance. Petitioner became the purchaser of the lands in controversy at the annual tax sale in 1896, under a decree made in the'circuit court, in chancery, for Marquette county. He petitioned for a writ of assistance; and the respondents, in answer to an order to show cause, replied :

. 1. That it was an attempt to eject respondents from their possession of the property without their having had their day in court before a jury, and in contravention of section 27 of article 6 of the Constitution of this State.

2. That the court of chancery acquired no jurisdiction to render a decree against the land, because no personal service of notice was given to the owner of the land, though he resided within said county, and that the law providing for publication of notice, and thus attempting to give the court jurisdiction, is in contravention of the fourteenth amendment to the Constitution of the United States.

3. That the decree had not been enrolled before sale.

4. That the county treasurer did not make a report of sale to the auditor general within the time prescribed by the tax law.

5. That the owner of the land had personal property from which the tax might have been collected.

On the coming in of the answer, the court below granted the order issuing the writ of assistance.

The questions raised by respondents in the first and second points above stated are fully discussed, and decided adversely to respondents’ contention, in Ball v. Ridge Copper Co., ante, 7.

"We think the proposition that no sale could be made until after enrollment has no force. The statute prescribes a time for the sale to take place, which precludes the application of 2 How. Stat. §§ 6648, 6649. Chancery Rule No. 24 cannot overrule the tax law, which provides when the deeds may issue. See, also, Hochgraef v. Hendrie, 66 Mich. 561.

The point that the county treasurer did not make his report to the auditor general in time is decided contrary to the view of counsel in Detroit Fire & Marine Ins. Co. v. Wood, ante, 31. In the present case it appears that the time taken by the treasurer was not unreasonable.

The" order below must be affirmed.

The other Justices concurred.


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    CHRISTIAN v. SODERBERG.
    1. Tax Deeds — Setting Aside — Parties.
    The auditor general is not a necessary party to a bill to set aside a tax deed on the ground of fraud and collusion between the purchaser and the county treasurer.
    3. Same — Fraudulent Sale.
    A tax deed is fraudulent and void as to a mortgagee of the premises, who purchased under foreclosure of his mortgage after the execution of the deed, where the mortgagor, in his capacity as county treasurer, fraudulently informed the mortgagee that there were no unpaid taxes on the land, and the grantee in the deed colluded with the mortgagor in the attempt to cut off the mortgagee’s interest by a sale of the land for taxes.
    Appeal from Muskegon; Russell, J.
    Submitted June 15, 1898.
    Decided July 18, 1898.
    Bill by Antoine Christian against Sam A. Soderberg and Charles Backstrom to set aside a tax deed. From a decree dismissing the bill, complainant appeals.
    Reversed.

      James E. Sullivan, for complainant.

      Jones & Kennedy, for defendant Backstrom.
   Moore, J.

Complainant filed a bill to set aside a tax title held by defendant Backstrom upon lands belonging to complainant, upon the ground of fraud and conspiracy between the two defendants. The circuit judge was of the opinion that the auditor general should have been a party to the suit, and for that reason dismissed the bill.

If the alleged fraud is established, we think the court erred in holding that the auditor general was a necessary party. This is not a proceeding to set aside a tax decree for want of jurisdiction, and the complainant in his bill offered to pay whatever taxes were unpaid.

The record shows that the defendant Soderberg, in 1890, was the owner of the land in question. In April of that year he borrowed $1,000 of complainant, and, to secure its payment in two years, he gaye a mortgage upon the land. In the mortgage it was agreed he should pay 'the taxes. The interest on the mortgage was paid until April, 1894. After this date no interest was paid, and no part of the principal. Foreclosure proceedings were had, which resulted in a sale of the premises to Mr. Christian in February, 1897, after which he went into possession of the property, and was in the possession of it when this bill was filed.

Mr. Soderberg became county treasurer of Muskegon county January 1, 1893, and continued to be county treasurer for four years from that date. The record shows that complainant applied to the county treasurer at his office to learn whether the taxes assessed against these lands were paid, and was assured by Mr. Soderberg that they were paid. This inquiry was made by Mr. Christian, .he intending, if they were not paid, to pay them. At the same time he did pay taxes upon other lands upon which he had mortgages. Mr. Soderberg understood Mr. Christian’s object in making these inquiries. As a matter of fact, the taxes had not been paid by Mr. Soderberg, but he had allowed the land to be returned for nonpayment of the taxes. In December, 1896, as county treasurer, he sold them, for the taxes of 1892, 1893, and 1894, to the defendant Backstrom.

It does not require any citation of authorities to show that these acts on the part of Soderberg were a fraud upon the complainant. It is said, however indefensible Soderberg’s actions may have been, it is not shown Backstrom has done any wrong. We cannot agree with the counsel in this. We have already seen that Mr. Soderberg deceived Mr. Christian about the taxes having been paid. It appears from the record that Soderberg arranged with Mr. Anderson to buy in the property at the tax sale, and, when Anderson told him he had no money, he was told by Soderberg that “he [Soderberg] would see to that; that it would be paid.” The property was bid off to Anderson. Mr. Christian learned of that fact, and went to Anderson, and told him he had a mortgage upon the property, and wanted to settle with him. He was told by Anderson that, if Mr. Christian had a mortgage upon the property, he would have nothing to do with it. About an hour after this, Mr. Anderson saw Soderberg, and told him about his interview with Christian, and that he would have nothing further to do with the matter, and to cancel the sale. Christian, after seeing Anderson, went to the office of the county treasurer, and asked Soderberg if the land had been sold for taxes, and was told by him it had not been. Soderberg shortly left the office, and,.after considerable delay, Christian learned from Mr. Nelson, who was in charge of the books, that the land had been sold to Backstrom. It was claimed that the land had been sold to him during the noon hour of that day. The next day Christian saw Backstrom,'and told him what interest he had in the lands, and they had some talk of a settlement. It was agreed that the parties] should meet at the office of the county treasurer at 11 o’clock to arrange a settlement. Mr. Christian went to the place of meeting, and waited until 12 o’clock, but Backstrom did not come. He saw Backstrom the next day, and offered him $75, besides Backstrom’s investment. “Then he asked me $600 for it. I told him I could not pay that. ‘Well,’ he said, ‘I got a better title than you got.’ ‘Well,’ says I, ‘I don’t know about that.’ He says, ‘You go and see Mr. Soderberg, .and see what he would do.’ ” When Mr. Backstrom was a witness,'he says he referred Christian to Soderberg, not because Soderberg had any interest in the title, but because Soderberg owed the debt. Mr. Backstrom says he heard on the street that Anderson had bought a piece of property at Lakeside, and that the sale was canceled. When he bought the land, Mr. Nelson, Mrs. Latimer, and Mrs. Nelson were present. He was at the court-house but a half hour, — perhaps not so long. He was told it was Mr. Soderberg’s property. He made the purchase at the noon hour, when he was on his way to dinner. It was the only piece of property he bought at that time, and it was the first time he had bought a piece of land at a tax sale.

Without reciting 'the testimony further, it is sufficient to say that it is impossible to read the record, and the sequence of events, without coming to the conclusion that Mr. Backstrom and the county treasurer were acting in collusion, and their purpose was to procure the property of Mr. Christian for an inadequate price.

The decree of the court below should be reversed. A decree may be entered in favor of complainant as prayed, he to pay Mr. Backstrom the amount paid by him, with interest. Complainant is given costs of both courts.

The other Justices concurred.


text:
    BARKWORTH v. PALMER.

    Fraudulent Conveyances — Evidence — Intent — Subsequent Creditors.'
    The existence of an actual fraudulent intent at the time a conveyance is made is necessary to be established in order to set the conveyance aside as in fraud of subsequent creditors.
    Appeal from Jackson; Peck, J.
    Submitted June 14, 1898.
    Decided July 18, 1898.
    Creditors’ bill by Thomas E. Barkworth and Charles A. Blair, copartners, against William H. Palmer and Mary M. Palmer. From a decree for complainants, defendants appeal.
    Reversed.

      Thomas E. Barkworth and Charles A. Blair, in pro. per.

      Forrest C. Badgley (Bichard Price, of counsel), for defendants.

       Rehearing denied October 8, 1898.

   Long, J.

Complainants recovered a judgment against defendant William H. Palmer on March 30, 1895, for $226.10, and $20.50 costs. This proceeding is a judgment creditors’ bill to set aside certain deeds of conveyance made by Palmer to his wife, Mary M. Palmer. The case was heard in open court, and a decree made in favor of complainants, from which defendants appeal. The court filed a written opinion in the case, which sets out the facts upon which that court acted, as follows:

“ For several years prior to July 22, 1893, the defendant William H. Palmer had contested in the courts the proposed will of his mother, Rebecca Palmer. In this contest and the legal controversies arising out of it, the complainant Thomas E. Barkworth had been one of his attorneys. The complainant Charles A. Blair had also acted for him as attorney in some of the litigation arising out of the settlement of his mother’s estate. During the latter part of this time, and afterwards, the 'complainants were in partnership, as Barkworth & Blair. July 22, 1893, William H. Palmer and his sister, Annis Campbell (who was the proponent of the contested will), agreed upon a settlement of all questions growing out of the will and of their mother’s estate. One of the considerations of this settlement was that Mrs. Campbell give her brother, William H. Palmer, her note for $4,000, secured by real-estate mortgage.
“August 7, 1893, William H. Palmer owned real estate in the county of Jackson of the value of at least $17,000, and also had the note of $4,000 against his sister, Mrs. Campbell. At that time his indebtedness, actual or claimed, was as follows: To Barkworth & Blair, $736; to Williamson, a lumber dealer, a small amount not precisely shown by the evidence; to William R. Brown, a small amount not precisely shown by the evidence; to Thomas I. Daniel, $80.35; to Amon Stephens, $7,000; to Gale Raymond, $800. All these debts and claims were based upon contract. William H. Palmer admitted as correct the indebtedness to Barkworth & Blair, Williamson, and Brown, but disputed the claims of Daniel, Stephens, and Raymond. July 26, 1893, Stephens brought suit for his claim in the circuit court for the county of Jackson, claiming $12,000 damages, and on the same day sued out a writ of garnishment. In his affidavit for garnishment, he swore the defendant William H. Palmer owed him $7,000. July 29, 1893, Raymond began suit against Palmer, claiming $2,000 damages, and in the affidavit for garnishment sued out on that day swore that the defendant owed him $800. The summons in the Stephens case was served on Palmer July 26, 1893, and in the Raymond case on July 31, 1893.
“This was in brief the situation on August 7, 1893, when the defendant William H. Palmer made the conveyances of his teal estate which are assailed by the bill in this case as fraudulent. It is plainly apparent that if we assume that the note of $4,000 against Mrs. Campbell was an asset available to creditors at its face (of which there are grave practical doubts), and the claims of Daniel, Stephens, and Raymond should be established at the amounts claimed, or any sum approaching it, creditors could collect their debts only by recourse to the real estate. If his real estate should be placed beyond the reach of creditors, and the aggregate of their claims should finally be fixed at a sum in excess of what might be realized out of the $4,000 note, the creditors would be powerless to collect such excess. The conveyances in question were made August 7, 1893. By them the defendant William H. Palmer deeded all his real estate, of the value of at least $17,000, to Harriet L. Johnson (a mere intermediary ); the defendant Mary M. Palmer at the same time deeding all of her real’estate, worth about $2,500, to tbe said Johnson; and said Johnson, by previous understanding of all the parties, deeded all the lands conveyed to her by both deeds to the defendants, William H. Palmer and Mary M. Palmer, jointly, as husband and wife. Neither of these conveyances was recorded until July 10, 1894.
“In August, 1893, William H. Palmer paid Barkworth & Blair’s debt of $736. He has also since that time paid the debts of Williamson and William R. Brown. In the following fall he settled' the claims of Stephens and Raymond, paying each $100. Daniel’s debt has not been paid. He sued Palmer a year or more later in justice’s court, and recovered a judgment for the face of his claim, filed a transcript of his judgment in the circuit court, and has levied execution upon the lands in question. The debt which is the basis of complainants’ judgment and execution in this case arose between August 29, 1893, and May 23, 1894, which are the dates of the first and last items of their account. It will be observed that this was after the date of the deeds attacked as fraudulent, but before they were recorded. There is no doubt that both complainants gave credit to Palmer in the faith and belief that he still owned all the lands in question, and without any knowledge or notice of the conveyances assailed.
“The question is: Are the deeds of August 7, 1893, from "William H. Palmer to Harriet L. Johnson, and from Harriet L. Johnson to the defendants, as husband and wife (so far as covers the lands deeded to her by William H. Palmer), fraudulent and void as to the complainants ? The defendants insist that they are not, for the following reasons:
‘ ‘ (l) Defendants contend that the complainants stand in the position of subsequent, and not as existing, creditors, and, therefore, that these conveyances cannot be held fraudulent as to them without proof of actual intent to defraud. It is true that complainants’ debt arose after the conveyances were executed, but it arose before they were recorded, and before complainants had any knowledge or notice of their existence; and the credit was extended by the complainants in good faith, relying upon the supposed fact that the defendant Palmer was still the owner of the real estate conveyed. Under such circumstances, the rule is that if the conveyance in fact operated to defeat their claim, and that was its natural result, as was the case here, it is, in law, fraudulent, without proof of any actual intent to defraud. It is therefore unnecessary to determine whether Palmer, when he executed the conveyances in question, actually intended to defraud his creditors, either existing or subsequent.
“ (2) The defendants claim that these conveyances cannot be attacked as fraudulent, because they were made for a valuable consideration, the defendant Mary M. Palmer having in good faith, in consideration of William H. Palmer having deeded his lands, conveyed her own, of the value of $2,500, in the same manner. I am satisfied that this contention, as applied to the facts in this case, is incorrect, and that the fact of Mrs. Palmer having, as a part of the arrangement, placed the title of her own real estate in the same situation, affords no objection to the complainants’ relief.
“(3) It is also urged that the conveyances in question were not fraudulent, because defendant William H. Palmer retained in his hands sufficient property to pay in full all existing and contemplated creditors. As above stated, it cannot be said that Palmer retained in his hands sufficient property to pay in full all his debts. Whether the $4,000 note which he kept would have been sufficient depended upon the amount which the debts might after-wards be determined to be. The amount claimed against him was much more than $4,000. It is true that, as the amounts were afterwards fixed by settlement and judgment, their aggregate was less than $4,000. But this, I think, is not the proper test. To bring his case within this rule, Palmer must have kept in his hands for creditors enough of his assets to pay their debts at the full amount of the claims. He could not lawfully reduce his property by voluntary conveyance to an amount fixed by himself, but less than the face of their claims, and so put himself in a situation to say: ‘ If your debts are established at an amount less than the value of the property I have saved for you, you can collect; but, if they are fixed at a sum greater than that, you cannot collect the excess.’ Neither was it safe to assume that the $4,000 note against his sister, which he retained, would be as readily available to creditors as the real estate which he conveyed. The facility with which he might manipulate such an asset to hinder, delay, or defraud creditors whose claims he thought unjust is much greater than that with which he could have prevented their claims from being collected from the real estate which he could by these conveyances put beyond their reach. Indeed, it is not surprising that although he retained the $4,000 note in his hands, and the aggregate of his debts was finally fixed at much less than $4,000, Mr. Daniel, whose claim he disputed, has been unable to collect his debt by execution without recourse to the real estate conveyed. By these conveyances, if they are valid, Palmer has actually put himself in a position where an existing creditor, whose debt he was unwilling to pay, could not collect it by law. It must therefore be held that these conveyances are not safe from attack as fraudulent for the reason that, when they were executed, Dr. Palmer retained in his hands sufficient property to pay all his debts.
‘ ‘ (4) It is urged by defendants that the delay in recording the conveyances from August 7, 1893, when they were executed, until July 10, 1894, when they were recorded, was not a fraudulent act, and occurred because the taxes had not been paid, and in fact an attempt was made to record them promptly. Assuming this to be true, the legal situation is not changed. They were in fact not recorded until July 10, 1894. Complainants had no knowledge of their existence, and in good faith gave the defendant Palmer credit for the services which are the basis of their judgment in this case, in reliance upon the supposed fact that he still owned his real estate, and had not put it beyond the reach of creditors.
“(5) Defendants’ counsel claim (on brief) that neither Daniel, Stephens, nor Raymond were, on August ?, 1893, creditors of William H. Palmer, so as to be entitled to the benefit of our statute as to fraudulent conveyance's of real estate, for the reason that their claims were disputed claims for damages. This is a misconception. The principle invoked is not applicable to a case like this, where all the debts and claims in question were based upon contract, and the only question as to any of them was whether they existed at all, and, if so, their amount.
“ The result reached is that complainants are entitled to the relief prayed for in their bill, with costs; and decree to that effect, with appropriate formal parts, may be prepared and presented for settlement.”

We think the court below was in error in its conclusion. That court was unable to find from the evidence that there was any actual intent to defraud the complainants, who were subsequent creditors; or, at least, the court did not find any such actual intent, but placed its finding in favor of complainants upon the ground that the credit was extended by complainants in good faith, relying- upon the supposed fact that defendant William H. Palmer was still the owner of the real estate conveyed; and that court said: “It is therefore unnecessary to determine whether Palmer, when he executed the conveyances in question, actually intended to defraud his creditors, either existing or subsequent.” This is not the rule in this State. In Cole v. Brown, 114 Mich. 396, 400, the rule is laid down, after a careful .consideration of the cases in this and other States, that—

“While no fraudulent intent is necessary to set aside voluntary conveyances as to existing creditors, it must be established in order to set them aside as to subsequent creditors. In other words, actual fraud must be shown, and, as well, the specific intent to defraud the individual subsequent creditor complaining, or subsequent creditors generally.”

See, also, Michigan Trust Co. v. Adams, 109 Mich. 181; Wooden v. Wooden, 72 Mich. 353; Campbell v. Remaly, 112 Mich. 214.

We have carefully examined the evidence in the case, and are of the opinion that it cannot be said from it that the defendants intended, when they made these deeds, to defraud the complainants, or any subsequent creditor. In order for the complainants to recover in this case, they should have shown that, at the time when these deeds were made, there was an express design on the part of the defendants to subsequently obtain credit from the complainants, and defraud them. No such showing is made, and the decree cannot be upheld.

The decree must be reversed, and a decree entered in this court dismissing complainants’ bill, with costs of both courts.

The other Justicés concurred.


author: Grant, C. J.

text:
    KNEELAND v. HYMAN.
    Tax Sales — Validity—Collateral Attack — Attempted Payment — Remedies—Quieting Title.
    The owner of land which has been sold for taxes cannot attack the decree of sale in a collateral proceeding on the ground that he was prevented from paying the tax by the conduct of the collecting officer, but, as held in Kneeland v. Wood, 117 Mich. 174, he must in such case resort to one of the remedies prescribed by sections 70 and 98 of the tax law (Act No. 206, Pub. Acts 1893). Where, however, instead of pursuing such course, a landowner sought to set up an attempted payment as a defense in a suit to quiet title brought by the holder of the tax deed, entry of decree was deferred, and defendant ■ given a reasonable time within which to avail himself of the statute.
    Appeal from Grand Traverse; Corbett,- J.
    Submitted June 9, 1898.
    Decided July 18, 1898.
    Bill by Fred A,. Kneeland and John H. Cole against Herman Hyman to quiet title. From a decree dismissing the bill, complainants appeal.
    Reversed.
    Complainants are the owners of a tax title ,to the land described in the bill of complaint, under a decree duly entered for the delinquent taxes of 1893 and the sale thereunder, having obtained the tax deed March 10, 1897. Defendant was the original owner. The land is wild and unoccupied. The bill sets up the deed under which the defendant derived his title, alleges that it is a cloud upon complainants’ title, and prays for a decree that the title of complainants he declared paramount to that of the defendant. The answer alleges payment of the tax in due time. The court found that the taxes were not paid, but that defendant, in March, 1895, applied to the county treasurer to pay all the delinquent taxes upon the land; that the treasurer informed him that there were no taxes due for the year 1893; that the taxes were unpaid for 1894; and that defendant paid them. The payment of the 1894 tax is conceded. The court, upon the hearing, permitted defendant to amend his answer by setting up the latter defense.

      Tweddle & Cross, for complainants.

      Pratt & Davis, for defendant.
   Grant, C. J.

(after stating the facts). We pointed out in Kneeland v. Wood, 117 Mich. 174, the two remedies provided by the statute in case of payment, or where the owner has been misled by the statement of the collector. That was an action of ejectment, and we held that a collateral attack upon a decree rendered in a tax suit cduld not be made, but that the owner must resort to one of these two remedies. If he could not make a collateral attack at law, for the same reason he cannot make it in equity. Defendant should have availed himself of one of the above remedies.

Instead of resorting to the action of ejectment, complainants have chosen to go into a court of equity. It is the province of that court to protect the rights of all parties, and do justice between them, when it can be done. It is not only inequitable, but unjust, that a person should lose his land when he has made an honest effort to pay the tax, and has been misled by the statement of the officer, on which he had the right to rely. The law does not contemplate such a result. The case of Kneeland v. Wood had not been decided when this suit was heard. Undoubtedly counsel advised that the defense could be made in this suit. We think it equitable and just that the defendant should be giveh an opportunity to avail himself of either of the above remedies, should he see fit to do so.

The decree will therefore be reversed, and the case remanded, and 90 days given to the defendant within which to avail himself of the statute. The complainants will recover the costs of both courts.

The other Justices concurred.


text:
    PEOPLE v. HOTCHKISS.
    1. Ordinances — Hawkers and Peddlers — License Pee — Reasonableness.
    A city ordinance requiring hawkers and peddlers to pay an annual license fee of §5 for peddling on foot or from a stand, of §25 for peddling from a hand-cart or from a conveyance drawn by one horse or other animal, and of §50 where more than one animal is used, the licenses to be issued for one year from June 1st, or such portion of the year as intervenes between the issuance and June 1st ensuing, is not unreasonable.
    2. Same — Discrimination—Restraint of Trade.
    Such an ordinance is not void as discriminatory and in restraint of trade.
    3. Same — Uniformity.
    Such ordinance is uniform, in that it provides for a license by the year or part of the year.
    Error to Wayne; Hosmer, J.
    Submitted June 15, 1898.
    Decided July 18, 1898.
    Charles Hotchkiss was convicted, in the recorder’s court of Detroit, of peddling without a license, contrary to the provisions of an ordinance. Upon certiorari to the circuit court, the conviction was set aside, and the people bring error.
    Reversed.

      Charles Flowers, for appellant.

      E. H. Hinckley, F. Hinckley, and E. S. Grece (J. J. Speed, of counsel), for appellee.
   Long, J.

The charter of the city of Detroit provides that “the said council may also license and regulate auctioneers, hawkers, peddlers, newsboys,” etc. Charter & Laws for City of Detroit (Ed. 1893), § 139. The ordinances of the city of Detroit provide (Rev. Ord. 1895), by section 1, chap. 105, that “no person shall follow the business or occupation of a hawker and peddler within the limits of the city of Detroit without a license from the mayor.” By section 2 the mayor is given power to issue licenses. All licenses are to be for one year from June 1st, or such portion of the year as may intervene between the date of the granting of the license and the 1st day of June next ensuing. Section 3, as amended in 1897, provides:

“Any person soliciting a license shall pay therefor as follows: For hawking or peddling while traveling on foot, the sum of five dollars; for peddling from hand-carts, the sum of twenty-five dollars, and stands in the public streets, the sum of five dollars; for peddling from any conveyance with one horse or other animal, the sum of twenty-five dollars; for peddling from any conveyance drawn by two or more horses or other animals, the sum of fifty dollars.”

Respondent was convicted in the recorder’s court of the city of Detroit for peddling produce without a license, and the case was removed to the Wayne circuit by certiorari, where the conviction was set aside. The case comes to this court by writ of error.

It is contended by counsel for respondent:

1. That the ordinance is unreasonable and excessive.

2. That it is in restraint of trade, and discriminates, favoring some and injuring others in the same business.

3. That it changes the amount during the term for which the license is granted, and is not uniform.

The first point is governed by People v. Baker, 115 Mich. 199, and-cases there cited. In that case an ordinance of the city of Ionia provided for a license to hawkers and peddlers of five dollars per week, and it was held not unreasonable.

The second point falls directly within the ruling of this court in People v. Sawyer, 106 Mich. 128. That case was brought under the same ordinance of the city of Detroit as the present. The question was raised there that ’ the ordinance was in restraint of trade, and the question settled against the contention.

The other questions need not be discussed. The ordinance is uniform, in,that it provides for a license by the year or part of the year.

The order of the circuit court setting aside the conviction must be reversed, and the order of the recorder’s court affirmed.

The other Justices concurred.


text:
    OTIS v. SPRAGUE.
    1. Deeds — Failure to Record — Execution Levy.
    An unrecorded deed is good as against an execution levy, in the absence of fraud.
    2. Same — Qualified Conveyance — Evidence.
    The facts that a deed from husband to wife was executed during the former’s illness, that it was withheld from record until shortly before the maturity of an obligation incurred by the husband after the execution of the deed, and'that he in the meantime effected insurance upon the premises in his own name, and retained their management, are not conclusive that it was a qualified conveyance, to take effect only in case the wife survived him, where a prior promise to convey to the wife absolutely in consideration of her caring for his mother, and the rendition of the service contemplated, are clearly shown.
    Appeal from Ionia; Davis, J.
    Submitted June 14, 1898.
    Decided July 18, 1898.
    Bill in aid of execution by Amos E. Otis against Alexander Sprague and Sarah M. Sprague. From a decree for complainant, defendants appeal.
    Reversed.

      B. A. Hawley, for complainant.

      McGarry & Nichols (Allen B. Morse, of counsel), for defendants.
   Hooker, J.

The defendants appeal from an adverse decree of the circuit court, upon a ‘bill filed in aid of execution. .The judgment upon which the execution issued was upon a promissory note given by Henry Sprague, for money borrowed from the plaintiff, the defendant Alexander Sprague being an accommodation maker. The evidence shows that the defendants are husband and wife, and that in the year 1879, while they were living upon the premises in controversy, which then belonged to said Alexander Sprague, his mother was a paralytic, living at the home of Henry Sprague, where she remained four or five weeks after her attack of paralysis. At that time the wife of Henry refused to care for her longer, and at her husband’s request, and upon his promise to deed to her the place by way of compensation, Sarah Sprague, the defendant, consented to permit the mother to be brought to the home of the defendants, and promised to care for her as long as' she should live, which she faithfully did. In 1881, Alexander Sprague, the husband, being in an enfeebled condition, and sick, and, according to the testimony of Mrs. Sprague, worried over the condition in which his wife and mother would be left if he should die, expressed regret that he had not made the deed as promised; and, as soon as he recovered sufficiently, he executed a deed of the premises, and gave it to his wife, who had it in her possession at all times thereafter. At that time he was not in debt. The note was made in November, 1894, and fell due November 30, 1895. The deed was recorded October 11, 1895.

The complainant’s counsel does not contend that the deed was executed with a fraudulent intent, but asserts that the evidence shows that it was in the nature of a testamentary disposition of the property, made at a time when Sprague’s mother was, and might continue for an indefinite period, dependent upon his wife, and when it is said the parties believed his brother, Henry, would be his sole heir, and that it was given and received with the agreement on the part of the wife that it was to be kept off record, and not to take effect if the husband survived the wife. As evidence of this, our attention is called to the failure to record this deed, while in other cases, where land was afterwards purchased by the defendants, the deeds were immediately recorded; to the illness of Sprague, and his fears; to the borrowing of money upon Sprague’s note, secured by a mortgage on the place, to pay an outstanding mortgage; the payment of this last mortgage from the pension received by Sprague; the subsequent insurance of the buildings on the farm in the name of Sprague; the management of the farm and business by Sprague, and in his name; and the erection of buildings thereon, and alleged haste to record the deed, shortly before the note matured. On the other hand, the agreement to deed to the wife, and the subsequent performance of the promise, the immediate delivery of the deed, and the wife’s subsequent and absolute control of it, are shown by their testimony; and a number of relatives testified to their understanding that this deed had been made. The testimony of. the wife is such as to carry conviction to our minds that it was the understanding of the parties that the deed should convey to her an unqualified title, and the conduct and management of the farm afterwards was not so out of the usual order in such cases as to militate strongly against the defendants’ claim.

If it be determined that the .deed was delivered without condition or restriction, it conveyed an absolute title, which could not be affected by the fact that the husband some years later signed and did not pay the note in question. If the land was hers, it could not be made subject to the execution because she did not pay a valuable consideration for it (if she did not); nor did her failure to record her deed in any way increase her liability, as an unrecorded deed is good as against an execution levy, in the absence of fraud. It is unfortunate that the plaintiff should lose his earnings, but, being convinced that the wife has an honest title to the land, we cannot justly require her to pay the husband’s debt. Barkworth v. Palmer, ante, 50, and cases cited.

The decree of the circuit court is reversed, and a decree will be entered in this court dismissing the complainant’s bill, with costs of both courts.

The other Justices concurred.


text:
    VINCENT v. SHERWOOD.
    1. Replevin — Mortgages—Res Judicata.
    In replevin for mortgaged chattels, the following facts appeared: That one H., to whom the mortgage was given, which purported to he security for H.’s indorsement of defendant’s note, had some time previously petitioned the court asking that an injunction theretofore obtained by plaintiff, who held a mortgage on defendant’s real estate and was the payee in the aforesaid note, restraining defendant from cutting timber on the mortgaged premises, be modified to the extent of allowing sufficient to be cut to pay the said note; that the court refused to modify the injunction, but ordered H. to assign the chattel mortgage to plaintiff, whom he subrogated to all the rights of H. therein, and directed plaintiff to sell the property, and release H. to the extent of the amount realized; that defendant thereupon filed a petition to have the order vacated on the grounds, among others, that he (defendant) was interested in the proceedings, and had had no opportunity to be heard, that plaintiff had agreed that defendant might cut and sell the timber, and that the mortgage to H. was to indemnify him against loss should defendant fail to apply on the note the proceeds of the sales; that the defendant’s petition was denied by the circuit judge; and that no appeal was taken. Held, that the questions involved in the proceedings in equity were res judicata.

    2. Same — Damages.
    It appearing that the property taken on the writ had been sold for less than the amount of the lien which plaintiff held in right of H., a verdict for six cents damages was properly directed in iiis favor.

      Error to Ionia; Davis, J.
    Submitted June 15, 1898;
    Decided July 18, 1898.
    Replevin by William Vincent against Josiah W. Sherwood and Eliza S. Sherwood. From a judgment for plaintiff on verdict directed by the court, defendants bring error. Affirmed.

      John Nichol, for appellants.

      F. F. Withey, for appellee.
   Long, J.

Action of replevin, in which the court below directed verdict in favor of plaintiff for six cents damages. Defendants bring error.

It appears that in December, 1893, the defendants were the owners of 159£ acres of land in Ionia county. They employed C. E. Temple, a real-estate agent, to borrow $7,000 upon said real estate. Temple applied to the plaintiff for money, and he furnished it, a part being paid, and the balance put into the bank in escrow, to be delivered when required. This loan was being made for the purpose of taking up two mortgages existing on the property, — one for $5,400, and one for $2,100, — both of which had been foreclosed, and the period of redemption nearly expired. The $7,000 being insufficient to take care of both these mortgages, Temple, as agent for defendants, applied to plaintiff for a further loan of $500, either as an addition to the first mortgage or with a second mortgage on the same property as security. Plaintiff refused both these propositions, upon which Temple made application to Royal A. Hawley, of Ionia, to assist in the matter. Hawley signed two promissory notes, one for $225, and one for $275, with defendant Sherwood, both notes being made payable to the plaintiff. To secure Hawley for these indorsements, the defendants gave him a chattel mortgage of $500 on a quantity of personal property; and, as additional security, they transferred their equity of redemption in 59-J- acres of the lands above mentioned. The moneys obtained on these two notes to plaintiff were used in paying np the former mortgages, paying costs, etc.

A short time after giving these notes, mortgage, and deed, Sherwood commenced cutting timber on the lands. The plaintiff thereupon, as mortgagee, obtained an injunction from the Ionia circuit court, in chancery, restraining Sherwood from cutting timber. Hawley thereafter filed a petition asking to have said injunction modified to the «extent of allowing sufficient timber to be cut to pay the $500 notes. Plaintiff thereupon filed a petition praying that Hawley be ordered to exhaust his chattel-mortgage security, or that he (plaintiff)- be subrogated to all the rights of Hawley in the mortgage. Evidence was taken on the petitions; and the court refused to modify the injunction, but ordered Hawley to assign the chattel mortgage to plaintiff, and subrogated plaintiff to all the rights of Hawley therein, and directed that upon such assignment plaintiff be empowered and authorized to sell sufficient of the property to satisfy the expenses of sale and the amount due on the notes, and release Hawley from liability in so far as the amount realized should pay the notes. After the assignment of the mortgage to plaintiff, he, acting under the order of the court and in accordance therewith, demanded the personal property covered by the mortgage from the defendants; and, on their refusal to surrender it, Re brought this action of replevin, took possession of the property, and sold it.

Defendants petitioned the court to set aside the order •directing the assignment of the mortgage to plaintiff. This was denied by the court. The assignment of the mortgage from Hawley to plaintiff recites: “ This assignment is made in order to comply with an order of the (circuit court for the county of Ionia, in chancery, made 'the 13th day of September, 1894.” Upon the refusal of the court to set aside the order directing this assignment, an application was made to this court for a mandamus to compel the court below to set the order aside. On the hearing in this court, the writ of mandamus was denied, on the ground that appeal was the proper remedy. Sherwood v. Ionia Circuit Judge, 105 Mich. 540.

Upon the trial of the replevin case, the defendants sought to show:

1. That they had no notice or knowledge of the hearing -on the petitions of Hawley and plaintiff, and no opportunity to be heard.

2. That the chattel mortgage on which the suit was brought was not given on the conditions and terms of the notes offered in evidence, but was in fact given for the purpose of guaranteeing the honest use of the money received from the timber; and the circumstances under which the mortgage was given, and the real consideration therefor.

3. That a large portion of the personal property covered by the mortgage in question was the sole property of Mrs. Sherwood, and the debt was not her debt.

4. ' That the plaintiff had told Mr. Sherwood that Temple was his agent, and that any arrangement he made with Temple would be all right and satisfactory to him.’

5. That there was an agreement with plaintiff that defendants should have the right to cut timber.

The court held that these defenses could not be made, for the reason that all these questions had been settled in the former proceedings, and that case was res adjudicaba.

In this the court was not in error. The court of chancery had jurisdiction to pass upon these questions. Bigelow v. Booth, 39 Mich. 622; Crittenden v. Schermerhorn, Id. 661 (33 Am. Rep. 440); Reeg v. Burnham, 55 Mich. 39.

In Huyck v. Graham, 82 Mich. 353, it appeared that a sale had been made in foreclosure proceedings, and that the defendant, upon a bill filed by him to set aside the sale for defects in the notice, had been given the right to redeem on paying the amount actually due, which he failed to do, and summary proceedings were brought against him to recover possession of the premises. It was said:

“The decree did not provide for a resale upon failure to redeem, and in this respect was not in accordance with the established practice; but the defendant seems to have been satisfied with it. Whether it was such a one as he asked for does not appear. It is fair to presume that it was, for it nowhere appears that he objected to it, and he did not appeal. The decree is therefore binding upon him. Were he dissatisfied with it, he should have appealed, and had his rights determined - and the error corrected in that suit. He cannot now be heard to attack it collaterally. * * * The court in the chancery proceedings had jurisdiction of the parties and the subject-matter, and, though the decree be erroneous, it is binding upon both parties until set aside.”

In the present case the parties sought to set the order, aside in a mandamus proceeding, and failed because appeal was the proper remedy. They were notified of that fact by the order of this court, and yet took no appeal. In this collateral proceeding they now seek to have the order made set aside. If an adjudication is once had, and the court had jurisdiction, and any question respecting it arises afterwards in a collateral suit, the adjudication will be held conclusive. Jacobson v. Miller, 41 Mich. 94. The exact points now sought to be raised were involved in the former order of the court; and, on the facts, the court found that the plaintiff was entitled to have the mortgage assigned to him for the purpose of foreclosure; that he should foreclose it, and protect Hawley on the notes. This was done.

But one other question is raised which needs‘consideration. It is claimed that the court was in error in directing the verdict for plaintiff for six cents damages. There would be some force in this claim if the property had sold for an amount larger than the plaintiff’s claim, as he had a lien on it only for the amount of his mortgage of $500. But counsel for defendants in his brief admits that it was sold for only $119, and bid in by plaintiff.

The judgment must be affirmed.

The other Justices concurred.