author: Moore, J.

text:
    SWEENEY v. TRAVELERS' INSURANCE COMPANY.
    1. Insurance — Accident Insurance — Peeading—Amendments.
    Under 3 Compi Laws 1915, § 12478, where the notice attached to a plea in an action on an accident insurance policy is not broad enough to make the defense of failure to make affirmative proof required by the policy within the time limited, the trial judge may grant an amendment of the plea.
    2. Same — Notice—Waiver.
    A delay of more than six months in giving notice of an accident is too long under an accident policy requiring “immediate written notice.”
    3. Same — Accident Insurance — Waiver—Forfeitures.
    There was no waiver of the time limit for filing proofs of loss under an accident policy where the policy had become forfeited because of delay in giving notice of the injury, and an agent of the insurer, in his conferences with plaintiff’s attorney, stated that the defense was that the notice of injury was given too late and that the trouble from which plaintiff suffered did not proceed from the injury, and that the company reserved what rights it had, and, in later sending a blank for furnishing proofs of loss to plaintiff, stated that there had been considerable delay in reporting the accident but he was furnishing the blank without prejudice to the rights of the company, and the policy provided that no agent had power to waive any condition of the policy.

    Error to Wayne; North, J., presiding.
    Submitted October 19, 1917.
    (Docket No. 66.)
    Decided December 28, 1917.
    Assumpsit by John S. Sweeney against the Travelers’ Insurance Company of Hartford, Connecticut, on certain policies of accident insurance. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Donnelly, Lyst&r & Munro, for appellant.

      Vandeveer & Foster, for appellee.

      On waiver of provision in employers’ liability or other indemnity policies requiring immediate notice of accident, claim or suit, see note in 3 B. R. C. 723.

   Moore, J.

In the year 1896, two policies of insurance amounting to $15,000 were issued by the defendant to the plaintiff to run for 30 years. Premiums were paid on them for the first ten years, and thereafter they remained in force without further payment. They provided, among other things, for compensation in case of accidental injuries. On November 21, 1913, plaintiff received a bodily injury which he claims entitled him to weekly benefits for 23 weeks. The injury was a severe one, nearly resulting in his death. He was in the hospital for a month unable to attend to any business. After his return home, he required the services of a physician for a considerable time. About May 4, 1914, plaintiff for the first time remembered the existence of these policies, but could not find them and did not remember their provisions. On May 4, 1914, he addressed a letter to J. M. Thompson, of the firm of J. M. Thompson & Sons, agents of the defendant, telling of the injury. To this letter no reply was received. On the 14th of July, 1914, plaintiff’s attorney called at the office of J. M. Thompson & Sons to learn what he could about the matter and, if possible, to get a copy of the policy. He was given copies of the blank entitled ■“Preliminary Notice of Injury.” This blank was filled out, signed by the plaintiff, and sent to defendant’s agents on July 18, 1914. The same is stamped: “Received, Claim Dept. July 23,1914.” It is also stamped: “Home Office, Claim Dept. July 29, 1914, Travelers’ Insurance Co.” Copies of the policies were not furnished by defendant on this occasion, and were not obtained until December 14, 1914. It does not appear that J. M. Thompson & Sons were able to furnish them from records in their office. On August 4th, defendant’s agent wrote the plaintiff inclosing blanks upon which to make affirmative proofs, of disability. These were filled out and returned on November 9, 1914. Between August 4th and November 9th, plaintiff submitted to a physical examination by physicians for the defendant. During this interval a number of conferences were held between plaintiff’s attorney and defendant’s agents. At these conferences the principal matter talked of was the settlement of the claim. Various propositions for purposes of settlement were made by the defendant, all of which plaintiff rejected. This litigation followed.

After the plaintiff had put in his testimony, the court directed a verdict for the defendant on the ground that the plaintiff could not recover because he had failed to comply with the provisions of the policy. Later a motion for a new trial was overruled. We quote from the brief of counsel for'appellant :

“The questions involved in this appeal may be conveniently grouped under three heads, and discussed in the following order: (1) Is plaintiff’s recovery defeated by his failure to give ‘immediate written notice’ of the accident and injury? (2) Did defendant waive the defense that plaintiff could not recover because of his failure to furnish ‘affirmative proof of * * * duration of disability’ within seven months? Involved in this question is the right of the defendant to amend its plea so as to set up this defense. (8) Did the trial court err in denying plaintiff’s motion for a new trial on the ground that plaintiff did not institute legal proceedings within one year from date of accident, or on the ground that defendant’s agents were not authorized to waive any provision in the policy, none of these points having been raised at the trial or being in any way involved in the issues presented, plaintiff, consequently, not having had any opportunity to be heard thereon? Neither were said points presented or argued in the motion for new trial.”

If the notice attached to the plea was not broad enough to make the defense of failure to make the affirmative proof required by the policy within ’seven months, the statute of amendments gave the trial judge the right to grant the amendment. Section 1, chap. 16, of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12478).

The record discloses that the delay in bringing suit for more than a year is not properly presented as a defense, and it may be regarded as eliminated.

The decisive question is whether the defendant waived the defenses given it by the policy.

The policies contained the following:

“Immediate written notice, with full particulars and full name and address of insured, is to be given said company at Hartford, of any accident and injury for which claim is made. Unless affirmative proof of death, loss of limb or sight, or duration of disability, and of their being the approximate result of external, violent, and accidental means, is so furnished within seven months from the time of such accident, all claims based thereon shall be forfeited to the company. * * * No agent has power to waive any condition of this policy.”

The following facts set forth in chronological order may be helpful:

November 21, 1913, plaintiff sustained an accident.

May 14, 1914, plaintiff wrote the defendant’s agent relative to the accident.

July 18, 1914, the plaintiff mailed the defendant what he called a “preliminary notice” of the accident.

July 23, 1914, the above notice was received by defendant’s agent; and on July 29, 1914, it was received by the home office.

August 4, 1914, blank for furnishing proofs was sent by defendant’s agent to plaintiff.

November 9, 1914, proof of loss was sent by plaintiff to- defendant’s agent.

It will be observed that no notice was attempted to be given of the accident until nearly seven months after it happened, and no affirmative proof of the accident until more than eleven months had intervened. The reasons given for the delay are that plaintiff did not have the policies and could not find them, and did not remember their provisions. It is further said that the necessity for giving the notice and making the proofs earlier are waived by the conduct of the agent in having conferences with the attorney for the plaintiff chiefly relating to negotiating a settlement and by furnishing blanks upon which to make affirmative proof of the accident.

Counsel say, in substance: That Mr. Sweeney in good faith went to considerable expense and trouble in gathering the necessary data to prove his claim and in obtaining the certificate of the attending physician. That, we quote from the brief:

“Mr. Sweeney submitted to a physical examination by the physicians of the defendant company, and, if defendant intended to insist on the defense that proofs of disability were not furnished within the stated time, they had no right to demand that Mr. Sweeney go to the trouble and humiliation of submitting.to a rigid physical examination by their own physicians. * * * Good faith and justice towards Mr. Sweeney required that defendant should have stated their defense before he submitted to the examination. Yet the first time that the defendant raised the defense that proof was not furnished within the required time was more than two years after this, when the lower court permitted defendant in the course of the trial to amend its plea so as to include this defense. This was the first notice that plaintiff had that defendant was insisting on any such defense.”

It is also claimed Mr. Sweeney engaged the services of an attorney to assist in presenting his claim to the company, who, without knowledge of the defense upon which they were relying, negotiated with defendant company for nearly six months, seeking to adjust and obtain a settlement of the claim; that much time with considerable expense to Mr. Sweeney resulted, and all this is evidence of a waiver, citing Burnham v. Casualty Co., 117 Mich. 142, 154, 155 (75 N. W. 445); Walter v. Insurance Co., 120 Mich. 35, 40 (78 N. W. 1011); Crystal Ice Co. v. Surety Co., 159 Mich. 102, 107 (123 N. W. 619); Cleaver v. Insurance Co., 71 Mich. 414, 421 (39 N. W. 571, 15 Am. St. Rep. 275). Also, 1 C. J. p. 480, for cases from other States.

It may be well at this point to see what the record discloses upon the subject of waiver. The attorney who represented the plaintiff was very frank in giving his testimony. Some of it is as follows:

“Between August 4th and November 10th, Mr. Young was to see me three or four times; five or six times. * * * At these conversations Mr. Young stated to me — I will not say how many times — I think it was more than once that he was up there, and took the matter up with me without intending to waive any defense that his company might have. * * * And he said, of course that in coming to see me he was saving what rights they had. Now I cannot recall just the language he used, but to the best of my recollection it was a statement in general terms, and that was about the extent to which it went. * * * He said at the time that his company made two objections to our claim: First, that notice of the injury was given too late. Second, that the company was of the opinion that the disability under which Mr. Sweeney suffered, or had suffered for a period of months following the injury, did not proceed from the injury, but from some trouble that must have existed previous to that time. * * * Regarding any reservations made by Mr. Young at these conferences, he stated that he was carrying on the conferences with me on the understanding that he did not waive any rights. It is not my recollection that he specified any defense that he would not waive, but simply said he would not waive any rights, or intended to waive any right by talking with me in regard to the question.”

The letter inclosing the claim blank read:

“Detroit, Mich., Aug. 4, 1914.
“Re Policy 0 — 6129. Policy 0 — 5462.
“Mr. John S. Sweeney,
“R. F. D. No. 3, Grosse Pointe Farms, Michigan.
“Dear Sir: I have just received a preliminary notice of the injury which you sustained November 25, 1913. There has been a considerable delay in reporting this accident to us, however I am furnishing you herewith claim blank which is being done without prejudice to any of our rights under the policy. Within a day or two, I shall plan to see you personally and will be glad to render whatever assistance I can in presenting your claim for the consideration of my home office.
“Yours very truly,
“C. M. Young, Asst. Adjuster.”

And the letter of November 9th is even more explicit. The policy in explicit language stated, “No agent has power to waive any condition of this policy.”

The evidence to which we have called attention shows the agent was diligent at all times in saying to the plaintiff or his representative that what he was doing must not be regarded as a waiver. The most that can be said of what was done is that if the plaintiff, knowing the attitude of the defendant, desired to enter into negotiations and furnish proofs, they would be presented for the consideration of the home office. See Dull v. Insurance Co., 159 Mich. 678 (124 N. W. 533).

An examination of the cases cited by the plaintiff to which we have before referred show them to be distinguishable from, the instant case. Here, where the policy required immediate notice of the accident, there was a delay of more than six months. This was too long as a matter of law. See Fuller Accident & Employers’ Liability Insurance, pp. 373, 374, and notes; Foster v. Casualty Co., 99 Wis. 447 (75 N. W. 69, 40 L. R. A. 833); Rooney v. Casualty Co., 184 Mass. 26 (67 N. E. 882); Oakland Motor Co. v. Fidelity Co., 190 Mich. 74 (155 N. W. 729).

In the instant case more than ten months elapsed after the accident before affirmative proof thereof was made, though the policy provides for a forfeiture if such proof is not made within seven months.

In Ermentrout v. Insurance Co., 63 Minn. 305 (65 N. W. 635, 30 L. R. A. 346, 56 Am. St. Rep. 481), in the course of a discussion of the provisions of a policy and of a waiver, the following is said:

“When the general managers received the proofs of loss in October, they wrote to plaintiffs, stating that they were in receipt of papers purporting to be proofs of loss, but adding: ‘This is to notify you that we deny any liability under said policy on the part of this company.’ They did not, however, return the proofs of loss.
“If the question was one of the sufficiency of the proofs of loss, we have no doubt the conduct of the general managers would have amounted to a waiver of any defect in them, either of form or substance. But this did not amount to any waiver of the prior failure of the plaintiffs to give notice of loss as required by the terms of the policy. It will be observed that by reason of this prior failure the policy was already dead when the proofs of loss were received; also, that in this letter the general managers did not place their denial of liability on any particular ground, but denied all liability generally. What would have been the effect, under the circumstances, of placing their denial of liability upon some specific ground other than the failure to give notice of loss we need not inquire. But there was nothing in the language or conduct of the general managers that could be construed as a waiver of plaintiff’s prior failure to give notice of the loss, by reason of which the policy was already dead. If the policy had been still alive, and the plaintiff still had time within which to give notice, or to supply defects in one already given, a different question would be presented and many of the numerous cases cited by plaintiff’s counsel would have been in point.
“Our conclusion is that the court was right in dismissing the action, on the ground that plaintiffs had failed to give notice of loss as required by the policy.”

In the opinion in Moloney v. Insurance Co., 168 Mich. 269 (134 N. W. 6), Justice Ostrander, speaking for the court, used the following language:

“What is involved in the contention of plaintiffs is not a waiver by a principal or agent in the course of making a contract of a matter or thing which they have an undoubted power to waive — a waiver before the fact — but an estoppel which has the effect of reviving a liability, which, by the terms of an existing contract, is ended.”

In Travelers’ Ins. Co. v. Nax, 142 Fed. 657 (73 C. C. A. 649), it is said:

“The correspondence referred to, taken in connection with the undisputed facts of this case, has none of the essential characteristics of a waiver. Mere silence on the part of the insurer has in this case done the plaintiff below no injury. The company had already been discharged by the default, by reason of the stipulation of the insured in that regard. Calling his attention to the default, without an express waiver thereof, could not give to the insured or to the beneficiary any right or opportunity to cure the same. Such default has already worked its stipulated-for effect, and the discharge of the company is complete. It is not like silence of the insuring company with respect to a defect in the mere form of notice actually served, as is pointed out by the cases cited below. Silence as to such defect may be the inducement to the one who gives the notice to believe that he has complied with his duty, and that the notice is in proper form. The company promptly denied liability, and in its first letter said nothing as to the default of immediate written notice of the accident. If the notice given by the beneficiary were too late, nothing could have been done by her to remedy the defect. The whole contention, of the defendant in error, as to waiver, is founded upon the letter of September 17th, which we have before us. There is no other testimony as to conduct on the part of the plaintiff in error, or facts to be submitted to the jury. The court should, as a matter of law, have instructed the jury that this letter did not constitute a waiver of the rights of the insurance company to set up the failure to give immediate notice. Cook v. Insurance Co., 181 Mass. 101 (62 N. E. 1049); Gould v. Insurance Co., 134 Pa. 570 (19 Atl. 793, 19 Am. St. Rep. 717); Travelers’ Ins. Co. v. Myers & Co., 62 Ohio St. 529 (57 N. E. 458, 49 L. R. A. 760).”

In the instant case, before any act was done which it is claimed was a waiver, the policy by its express terms became forfeited. Here the agent was insisting all of the time that his acts must not be regarded as a waiver. The policy stated in clear language that he had no power to waive its conditions. To hold that what was done in this case may be regarded as a waiver would be to go farther than any of the au-. thorities warrant.

Judgment is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    GREEN v. REDER.
    1. Specific Performance — Land Contracts — Part Performance.
    Specific performance of a contract to purchase land will be decreed where there has been an entry upon land and part performance of the contract.
    2. Same.
    .Where a party seeking to compel specific performance of a contract to convey land entered into possession under an agreement whereby he was to repair the fences in return for use of the pasture, and all correspondence and talk with the interested owners claimed to constitute the contract for purchase was with only two of them and no communication was had with ■ the heirs of the third interested party and no one had authority to act for them, and deeds signed by the heirs of such deceased person were returned by the depositary because of noncompliance with conditions, specific performance was denied.
    3. Vendor and Purchaser — Deeds—Cloud on Title — Accounting —Conditional Decrees.
    The opinion and decree in a former suit did not put a cloud on the title to the lands justifying refusal of deeds under a contract of sale of land where by such decree and opinion title was found in certain persons, and it was found that one of such persons as trustee had failed to account for all of the money for which he should have accounted, and he was given an opportunity to pay such amounts, and it was further provided that, in default of payment on demand, execution and levy might follow at the option of the plaintiffs.
    Appeal from Bay; Coumans, J.
    Submitted October 24, 1917.
    (Docket No. 50.)
    Decided December 28, 1917.
    Bill by William Green and others against Stanislaus Reder and another to enjoin waste. Defendants filed a cross-bill for specific performance of a land contract. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      Roy E. Brownell (John E. Kinnane and A. W. Black, of counsel), for plaintiffs.

      Weadock & Duffy, for defendants.
   Moore, J.

On February 1,1918, plaintiffs began an ejectment suit against defendants. On the same day they filed this bill of complaint in chancery, praying for an injunction against defendants to restrain them from committing waste on a parcel of land in Monitor township, Bay county, by cutting and removing timber from said lands. The bill alleged plaintiffs were the owners of the lands in fee; that the trespass was continuing and was materially depreciating the value of the lands which were being stripped and denuded of timber. A temporary injunction was issued. Defendants answered generally and also by way of cross-bill, and prayed for a decree compelling specific performance by plaintiffs of an alleged agreement for the sale of the lands to defendants. They alleged that an agreement was made, partly oral and partly in writing, and that on February 21,1910, deeds executed by plaintiffs conveying said lands to defendants were forwarded to the Lumbermen’s State Bank at Bay City, accompanied, by instructions to deliver the deeds to defendants on the payment of the purchase price, $7,800; that defendants refused to accept said deeds’ for the reason that the title to the lands, was not in the plaintiffs but was outstanding in the Hatt heirs, who commenced a suit January 18,1911, against plaintiffs for an accounting, and involving said lands, which found its way to the Supreme Court in the case of Hatt v. Green, 180 Mich. 383 (147 N. W. 593), and that the Supreme Court decreed that the claims of the Hatt children were a charge upon the lands.

Plaintiffs filed their answer to the cross-bill admitting the negotiations for the sale of said lands to defendants, the forwarding of the deeds to the Lumber-

men’s State Bank for delivery on payment of the purchase price, and the refusal of defendants to accept and pay for the deeds, and that the deeds were returned by the bank and canceled, and the attempted deal was declared ended. It was averred plaintiffs were at the time of the execution of the deeds the owners of the lands in fee. It is further averred that defendants confederated with one Trombley to compel plaintiffs to pay a large sum of money, approximately $4,000, in settlement of the alleged claims of the Hatt children, 50 per cent: of which was to go to Mr. Trombley; that Trombley was the adviser of defendants in connection with their refusal to purchase; that he instituted suit against plaintiffs in the name of the Hatt children; and that said suit was. finally determined by the Supreme Court, 180 Mich. 383 (147 N. W. 593), deciding that plaintiffs were the owners of said lands. They aver that the $200 which was paid to George Green by defendants at the time of the negotiations for the sale of the lands was tendered back to defendants. They allege that no action was taken or notice given by defendants with reference to said lands from the time of the service of the notice to quit in July, 1912, until March, 1915, and that the value of the lands in the meantime had increased several thousand dollars over and above what they were worth at the time of the alleged verbal agreement to sell. The case was tried in open court before Circuit Judge Collins, and on January 10, 1916, the court filed the following:

“In Green-Reder case I have come to the conclusion that the defendants are not entitled to a specific performance, and that the cross-bill should be denied. It would follow from this that the injunction should be granted as prayed for in the bill.
“Neither of you have argued the question of the amount of the waste, and I suggest that you appear before me before further action.”

Later Judge Collins died, and Judge Coumans succeeded him. After a partial hearing by Judge Coumans, he filed an opinion to the effect that further testimony as to the rental value of the lands and alleged betterments be taken, and thereafter such testimony was taken, and after a full hearing a final decree was entered by Judge Coumans. Paragraph 1 of this decree is as follows:

“That the temporary injunction heretofore issued in this cause be and the same is hereby made permanent, and that defendants’ cross-bill filed herein be dismissed.”

Paragraph 2 of the decree provides that plaintiffs pay the defendants the sum of $561.13 for the $200 which had been tendered back but not accepted, taxes paid, and interest. In paragraph 3 of the decree it is decided that the use of the lands by defendants fully offset their claims for clearing, fencing, and betterments. This decree was entered on November 20, 1916.

Much of the brief of counsel for the appellant is devoted to the question of the power of the court to decree- specific performance where there has been an entry upon the lands under the contract, and a part performance thereof. That question is no longer an open one in this State. See section 11397, 4 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 11979; Beemer v. Hughes, 179 Mich. 110 (146 N. W. 198).

There can be no doubt of the duty of the court to decree specific performance in a proper case. The question remains: Is this such a case? The facts are not very much in dispute. It is true defendant claims that he went into possession under the contract, while plaintiffs claim he went into possession as a tenant under them long before it is claimed any contract was made; he to do certain things for the use of the land.

Mr. Reder on his cross-examination testified, in part:

“The Greens first came to my place up there in connection with this land seven or eight years ago, something like that; I wouldn’t swear for true. * * *
“Q. The first deal that you made some eight or nine years ago, by which you were to fence the land for pasture?
“A. I couldn’t remember. I think there was; I think I had it a year or so for pasture.
“Q. Before any deal was made of any kind to buy it?
“A. Something like that; I couldn’t tell exactly.
“Q. You didn’t pay anything for the pasture?
“A. No, sir.
“Q. But you made those fences for that, didn’t you?
“A. Yes, there was some fences, and I had to go to work and fix them up.
“Q. And that was your understanding that the Greens and you had, that you would make the fences and you could have the use of the land; isn’t that right?
“A. Yes, there was nothing but brush fences there.
“Q. Well, wasn’t that the agreement?
“A. Yes.”

All of the verbal talk and all of the letters which it is claimed resulted in a contract were with or written by William or George Green. In none of the letters were the lands described or the terms of payment stated. James Green died before the negotiations for the sale of the lands commenced, leaving as his heirs at law and entitled to his interest in said lands Mary Ett Green, his widow, and George Green ,and Nellie Green Warner, his two children. Neither of defendants ever talked with or had any communication with Mary Ett Green or Nellie Green Warner regarding the purchase of said lands. Neither George Green nor William Green had any power of attorney or authority in writing to contract from Mary Ett Green or Nellie' Green Warner for a sale of the lands. The only writing signed by Mary Ett Green and Nellie Green Warner which would alienate any of their interest in the real estate (see section 11395, 4 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 11977) were the deeds which were sent to the bank under the conditions before stated, which deeds were returned to the plaintiffs because the defendants refused to comply with the conditions.

It may be interesting and helpful at this point to turn to the case of Halt v. Green, 180 Mich. 383 (147 N. W. 593). Four of the grandchildren of George Green joined in that proceeding, three of them declining to join were made defendants. William Green was the principal defendant. George Green, Mary Ett Green, and Nellie Green Warner were not parties to that litigation. The opinion closes as follows:

“The decree of the court below is reversed, and a decree will be entered in this court confirming the title to the lands in question in defendant William Green and the heirs of his cotrustee, but providing for an accounting against said defendant William Green in which he shall be charged with interest upon each share paid complainants from the time settlement was made with the oldest child, at which time the trustees must be held to have made their election.”

The effect of that opinion is to hold that the title of the lands had been in William Green and the heirs of his cotrustee from the time settlement was made with the oldest child, which was before the deeds which were sent to the bank were made. The dgfcree which followed the opinion in that case had these provisions in it:

“(1) That the title to and ownership of the lands mentioned and described in the pleadings in this cause * * * are hereby decreed to be in William Green, and the heirs at law of James Green, deceased, viz., Mary Ett Green, George Green, and Nellie Green Warner; said William Green being the owner of an undivided one-half of said described lands, and said heirs at law of undivided one-half of said lands.
“(2) That said defendant William Green pay or cause to be paid to Wade Hatt the sum of $475.01, which sum is the amount found by the court to be due said Wade Hatt from the trust fund arising from certain lands in Monitor township and set forth in the will of George Green, deceased.
“(3) And to Alfred Hatt, the sum of $327.85 from til© fund ^ #
“(6) That upon failure of said defendant William Green to pay complainants Alfred and Wade Hatt, or their solicitors, the respective amounts decreed to them herein, on demand, then and in that event said complainants Alfred Hatt and Wade Hatt may, at their option, have execution for the collection thereof, and the same may be levied upon the interest of defendant William Green in the lands mentioned and described in the first paragraph of this decree, or collected otherwise by said complainants Alfred Hatt and Wade Hatt.”

It is claimed this decree put a cloud upon the title which justified the refusal of the deeds sent to the bank. We think the effect of the opinion and decree was quite the contrary. They found the title in William Green, Mary Ett Green, George Green, and Nellie Green Warner. It further found William Green as trustee had failed to account for all of the money for which he should have accounted. The decree gives him an opportunity to pay those amounts, and provides that, if he does not do so on demand, an execution and levy may follow at the option of Alfred Haij£ and Wade Hatt.

The decree does, not purport to put a lien upon the land. The record shows William Green paid the sums named in the decree, and that no execution was ever taken.

The decree of the lower court is affirmed, with costs to the plaintiffs.

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


text:
    SPRAGUE, WARNER & CO. v. FISCHER.
    Bankruptcy — Judgments—Appeal Bonds — Liability oe Sureties —Statutes.
    Sureties are liable on an appeal bond after a judgment debtor goes into bankruptcy to a judgment creditor who ignores the bankruptcy proceedings, in which the debtor secures a composition with his creditors and pays the fund into court, scheduling the claim of the judgment creditor as a judgment, such sureties having ample means of protecting themselves under section 57i of the bankruptcy act (30 U. S. Stat. 560), providing that “whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor’s name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor.”
    Error to Wayne; Collingwood, J., presiding.
    Submitted October 16, 1917.
    (Docket No. 146.)
    Decided December 28, 1917.
    Assumpsit in justice’s court by Sprague, Warner & Company against Paul F. Fischer for goods sold and delivered. There was judgment for plaintiff, and defendant appealed to the circuit court, filing the statutory appeal bond. On defendant’s being adjudged a bankrupt, plaintiff asked for judgment against the sureties on the appeal bond. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Frank A. Bosch and Zimmer & Chedester, for appellants.

      Douglas, Eaman & Barbour, for appellee.
   Moore, J.

The defendant Fischer was sued in justice’s court and judgment taken against him April 24, 1915. He appealed to the circuit court and gave the usual appeal bond, signed by the other defendants as sureties. On July 14, 1915, he was adjudged a bankrupt. He secured a composition with his creditors which was confirmed October 15, 1915, and paid the fund into court. The plaintiffs claim was duly scheduled as a judgment by the bankrupt, but the plaintiff paid no attention to the bankruptcy proceedings. It relied upon the bond. The defendant pleaded his composition with creditors as an accord and satisfaction of plaintiff’s demand. The case was tried by the court without a jury by consent. Judgment was rendered against all of the defendants with stay of execution against Fischer.

The defendants claim by their assignments of error: (1) That no judgment whatever could be taken against the defendant Fischer after his composition in bankruptcy; and (2) hence no judgment could be taken against the sureties; (3) that plaintiff was bound by the proceedings and confirmation in bankruptcy, and could not offer testimony to show he had ignored it; (4) that, even if the sureties were liable, it would be only for the deficiency after the composition paid.

The trial judge was of the opinion that the case of Brown & Brown Coal Co. v. Antezak, 164 Mich. 110 (128 N. W. 774, 130 N. W. 305, Am. & Eng. Ann. Cas. 1912B, 778), was controlling. Counsel for appellants contend the cases are distinguishable because in the one case suit was begun by attachment, and the principal defendant was afterwards discharged in bankruptcy; while in the instant case the principal defendant effected a composition with his creditors and after paying the money into court obtained his discharge.

The difference in the facts does not make any difference in the principles involved. In both cases the sureties had signed appeal bonds which were conditioned alike. In both cases the conditions were not met, and the liability of the sureties attached. . It is said, if the judgment is sustained, the plaintiff might collect 125 per cent, on his claim, and that in any event the sureties should be held for only the difference between the debt and the amount he would have received had he accepted the composition. This does not follow. The sureties had ample means -of protecting themselves by virtue of section 57i (30 U. S. Stat. 560), which reads as follows:

“Whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor’s name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor.”

Under that section of the bankruptcy act the sureties could have proved the claim of the plaintiff had they so desired.

The judgment is affirmed, with costs to the plaintiff.

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


text:
    HARTWIG v. KELL.
    1. Trial — Instructions—Failure to Request.
    It is the duty of counsel to proffer desired fuller or more specific instructions, especially where they are asked by the court if there are any changes they desire to have made, or anything further that they desire instructions to be given on.

      2. Rape — Damages—Excessive Verdict.
    A verdict for ? 2,5 00 for an indecent assault on a fifteen-year-old girl held, not excessive.
    Error to Dickinson; Flanigan, J.
    Submitted October 9, 1917.
    (Docket No. 59.)
    Decided December 28, 1917.
    Case by Bertha Hartwig, an infant, by her next friend, against Milton Kell for a criminal assault. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      H. J. Rushton (P. H. Martin, of counsel), for appellant.

      Michael J. Doyle, for appellee.
   Moore, J.

From a verdict and judgment in favor of the plaintiff for $2,500, the case is brought here by writ of error.

We quote, for the purpose of showing what the litigation is about, from the opinion of the trial judge when he overruled the motion for a new trial:

“The declaration in separate counts charges Kell with having made an indecent assault on the plaintiff, and with having induced, aided, and abetted a similar assault made by one Arthur Le Boeuf. As far as necessary to recount it in disposing of the questions presented by the motion for a new trial, the story, which the jury were fully warranted by the evidence in believing, follows: At the time of the alleged assaults, October 18, 1914, the age of the plaintiff was about 15 years and 8 months. She was a school girl residing with her family at the little village of Powers, in Menominee county, where she was born and lived all her life. The defendant Kell was then about 85 years old, married, and for many years a successful hardware merchant and livery stable keeper at Powers. The plaintiff made purchases at his store from time to time. Other than such as so resulted, she had no ‘acquaintance with him particularly.’ Arthur Le Boeuf, 21 years old and unmarried, was also born and lived practically all his life at Powers. The plaintiff and Le Boeuf were acquainted, and as they grew up met occasionally at the homes of neighbors and around, as children in a small community do, but their acquaintance was not intimate. Le Boeuf was employed by Kell ‘off and on’ in the livery business and as chauffeur. While so employed, Kell, intimating that the plaintiff could be persuaded to submit to sexual intercourse, asked Le Boeuf ‘to try and get her out’ for that purpose. During the afternoon of October 18, 1914, which was Sunday, the plaintiff, not by appointment but as it happened, met Le Boeuf at the home of a neighbor, where she had gone to visit with a school girl companion. Upon leaving the neighbor’s house about 5:30 in the afternoon, Le Boeuf invited the plaintiff to take an automobile ride with him that night. She evidenced disinclination, and as he testified, realizing she would not otherwise go, he told her he was to take a Mrs. Labre from Spalding to Hermansville, six miles distant, and a Miss Radford from Hermansville to Powers.
“Powers and Spalding, also a small village, while separated about a mile, are connected by sidewalk. The plaintiff knew of Mrs. Labre and where she lived at Spalding. She also knew of Miss Radford, a daughter of the superintendent of the Wisconsin Land & Lumber Company. Being assured of the company both ways of ladies of the highest respectability, she consented to go, whereupon, according to Le Boeuf, the sidewalk in front of Prince’s store and 7:15 p. m. was arranged as the place and time of meeting. * * * Upon learning from Le Boeuf the conditions under which the plaintiff consented to the ride, Kell ‘thought around for awhile and said all right.’ Kell’s automobile was two-seated. Le Boeuf took the driver’s seat. Kell occupied the back seat while the car was going out of the barn around the corner. The corner passed, Kell dropped to the floor of the tonneau, and, as Le Boeuf testified, covered himself with a robe. Le Boeuf drove to the appointed meeting place. * * * He led her to the automobile. It was not dark. Before they entered the car, he threw a robe which was_ resting on the front seat over Kell, who remained hidden on the floor of the tonneau. If Kell had not previously covered himself with a robe as Le Boeuf insists he had, that he was now covered with a robe he admits. * * * The regular automobile road from Powers to Hermansville runs through Spalding. Noticing as they were passing through Spalding that the car was not going towards the Labre residence, the plaintiff asked Le Boeuf whether he was not taking Mrs. Labre to Hermansville. He answered, ‘No/ but that instead he was going to take one George Grau to Hermansville. * * * Going but a very short distance after assuring the plaintiff he was on a ‘short cut’ to Grau’s place, Le Boeuf stopped the car pretending something was wrong with it. He turned off the lights. It was a dark night. They were on a lonely byroad about a quarter of a mile from the nearest habitation. He asked her to step out of the car to enable him to get-tools he said were under the cushion. She insisted having put out the lights without tools he could put them on without the tools. He insisted it was necessary for him to get the tools and for her to leave the car to allow him to do so. She became suspicious and alarmed and refused to leave the car. He took hold of her in an effort to pull her out. She resisted ‘as strong as she could.’ She grasped and hung on the steering wheel. He endeavored to put his hand under her clothing and succeeded to the extent of tearing-her stocking. How long the struggle continued she does not remember. He finally forced her out of the-car. He held her by the hand so she could not run. She continued her struggle on the ground. He tripped her down, held her, as he said, ‘so she couldn’t make much fuss,’ and accomplished his object. Upon getting up from the ground after Le Boeuf released her, she saw Kell ‘rising up from the back seat.’ He said: ‘Now, Bertha, what have you done? Do you want-me to tell your mother?’ As he spoke, he was alighting from the car bringing the robe with him. She answered, ‘No.’' As he came forward, she asked him ‘to leave her alone.’ He answered if she ‘didn’t do it with him he would tell her mother.’ He put the robe down on the ground. ‘He wanted her to go back on the robe.’ He took hold of her. She struggled with him. He led her over to the robe. She sank to-her knees, and then to a sitting posture, because, as she says, she had no strength left to stand. He then, because she had no strength left to fight against him, had sexual intercourse with her.
“In practically all which she claimed was said and done from the time they met in the afternoon until the assaults were completed, the plaintiff is corroborated by Le Boeuf. He further testified that when he took the plaintiff out he felt he would have difficulty in obtaining her consent to intercourse, and that his intention was to rape her if he couldn’t get it any other way. To the question ‘Did Milton Kell tell you to force this girl?’ he answered: ‘Yes, sir; he told me not to let her get away.’ He admitted he lied to her to get her to go on the trip; that he lied to induce her to leave the car; that he overcame her resistance and pulled her from the car, tripped her down, held her so she could not move, and accomplished his purpose. He further'testified that when Kell spoke of telling her mother she started to cry and to walk towards home; that Kell followed, took her by the arm, brought her back, and told him to go away; that he went to the other side of and three or four feet from the car, and lay down where he could see under the car; that he saw ‘black objects’ in motion, but it was too dark to see ‘what was going on.’
“Kell, who was sworn as a witness on his own behalf, denies proposing to Le Boeuf that he take the plaintiff on the Christenson road or elsewhere, in a buggy or automobile, that he (Kell) might have intercourse with her. He admitted that with full knowledge of Le Boeuf’s indecent and criminal purpose, he not only loaned him his automobile as an aid in its accomplishment, but .went along to see it done. He further admitted he secreted himself in the car so she would not know of his presence, and that he knew what Le Boeuf was doing with the girl and did not interfere. He claimed she left the car voluntarily and voluntarily submitted to intercourse with Le Boeuf. He denied having sexual intercourse with her, although Fred Haggerson, prosecuting attorney of Menominee county, testified that soon after the affair became publicly known Kell admitted to him he attempted to have intercourse with the girl, and failed only because nature, at the moment, denied him the necessary aid.”

We quote from the charge to the jury:

“The claim of the plaintiff is that she was assaulted and ravished, first by Le Boeuf, and that Le Boeuf was counseled, aided, and abetted in the making of the assault by defendant, Kell.
“If Le Boeuf made an assault on the plaintiff, and in the making of the assault he was counseled thereto, encouraged therein, and aided therein by the defendant, Kell, the plaintiff would have a right of action for any damages which resulted from such assault, against both Le Boeuf and Kell, or either one of them. So you will understand the law of this case to be, if you find from the evidence here that Le Boeuf committed an assault and battery upon the plaintiff, and that he was advised, encouraged, and aided by Kell, and that Kell was present at the time when that assault was made, then Kell is liable to the plaintiff for the damages which resulted to her by reason of that assault, although the actual assault was made by Le Boeuf.
“Now the contrary is true; if Le Boeuf made an assault on the girl and committed a battery upon her person without being counseled thereto by Kell, and without being aided or encouraged therein by Kell, then Kell would not be liable for any damages resulting from the assault made by Le Boeuf. If Kell himself committed an assault and battery on the girl, then he is liable to answer to her in this action for all damages which resulted to her from that assault and battery.
“Now, gentlemen, what are the claims of the parties ? The plaintiff claims that she was invited to take an automobile ride by Le Boeuf; that she went with him in the automobile; that the automobile was owned by defendant, Kell; that Kell was concealed in the bottom of the tonneau of the automobile; that after the automobile had reached a certain point, which has been described to you, it was stopped; that by force and violence, and against her will, she was removed from the machine by Le Boeuf; that after being removed from the machine that then, by force and violence and against her will, Le Boeuf had sexual intercourse with her; and that, after Le Boeuf had committed that act, the defendant, Kell, by force against her will had sexual knowledge of her body.
“The defendant admits he owned the automobile. He admits he was concealed in the bottom of the tonneau. He admits he knew that Le Boeuf had invited the girl out with the intention of having sexual intercourse with her. But he denies that he knew that Le Boeuf intended to force her, and denies that he himself assaulted her or had sexual intercourse with her.
“These are the claims of these parties in substance, it will be for you to say from the testimony in the case what is the truth about this matter. What is the truth about it? Did Le Boeuf by force and violence and against her will have carnal knowledge of her body on that occasion? Yes or no, from the testimony in this case. That will be for you to say, gentlemen. If he did not, the defendant cannot be charged with any damages on account of anything that Le Boeuf did. But if he did, then the next question is: Did the defendant, Kell, advise, encourage, and aid in the commission of the act? If he did, then, as I have said to you, he is obliged here and now to answer to the plaintiff for all damages which that act occasioned to her, although the act itself was committed by Le Boeuf.
“Now, gentlemen, passing from the alleged act of Le Boeuf, the next question is whether or not the defendant, Kell, himself assaulted the girl, and against her consent had carnal knowledge of her body. Is that true, or is it not true? That will be for you gentlemen to say from the testimony in the case. If it is true the defendant, Kell, committed an assault on the girl, and by force and against her will had sexual knowledge of her body, then, gentlemen, he must answer for all damages which you say was occasioned to her by that act.
_ “If, however, it appears in this case that the plaintiff had sexual intercourse with Le Boeuf willingly, then, as I have already said, no damages can be allowed her because of the assault committed by Le Boeuf. It is also true that if, willingly and with her consent, she indulged in an act of intercourse with the defendant, Kell, she will be entitled to no damages on account of that. act.
“Now, gentlemen of the jury, what is the truth about this whole matter? That will be for you to say from the testimony in the case, and from nothing else. If the plaintiff is entitled to recover any damages, then you will consider the amount of damages.”

The court then devoted more than three printed pages of the record to the question of damages.

Near the close of the charge, the record shows as follows:

“The court here called upon the attorneys for both sides, and asked them if there was anything further that they desired the jury to be instructed on, or if there were any changes to be made.
“Counsel for the defendant asked the court to instruct the jury that the acquittal of the defendant on the criminal charge of rape at Menominee (which fact had been introduced in the case by the defendant and referred to by both sides in their argument) should not influence the verdict either way.
. “Neither counsel for the defendant nor counsel for the plaintiff offered any criticism of the charge as given, or suggested or requested any modification or correction thereof. The court instructed the jury in accordance with defendant’s verbal request as follows: ‘You are not to let the fact that defendant was acquitted of the criminal charge of rape at Menominee influence your verdict in either way.’ ”

Counsel for defendant did not prefer any written request to charge.

Various assignments of error are argued at length. The most important ones are that the court erred in various portions of his charge to the jury upon the question of damages. Counsel quote at length from the charge of the court, and then say (we quote from the brief):

“It is true, as appears above, that the court charged: ‘She would lie entitled to such damages as will fully and fairly compensate her for all injury to her body, actual injury, etc. * * * And, in addition to that, she will be entitled to all such damages as will in your judgment fully and fairly compensate her for the injury to her feelings,' etc.
“But this is far from being a cure. The court does not say that she is entitled to only such damages. Indeed, there is not here the slightest intimation that this was intended as a limitation upon any or all that had been theretofore said about damages. A lawyer familiar with the law might so infer. It was not intended as a cure of anything theretofore or thereafter said on the subject of damages. It was, instead, one of several erroneous yard sticks handed the jury, whereby to measure defendant’s liability. How many different standards of measure did the jurors invoke, and, if but one, which one?”

The trial judge attempted to cover the question of damages fully. In his anxiety to do so, he appealed to counsel, as already appears. Evidently they thought he had fully covered that subject, for they made no suggestion that he should tell the jury that plaintiff could recover only such damages as had been mentioned.

The trial judge was quite right in saying, when overruling the motion for a new trial:

# “If more full or specific instructions upon any particular point was desired, it was the duty of the defendant to frame and present a special request covering the point. “Omitting or neglecting to do so, he will be deemed satisfied with the sufficiency of the instructions as given, and an exception based upon the want of sufficiency cannot be assigned as error.’ Walters v. Railway, 183 Mich. 549 (149 N. W. 1004, Am. & Eng. Ann. Cas. 1916B, 382); Barton v. Gray, 57 Mich. 622 (24 N. W. 638); Barnett v. Insurance Co., 115 Mich. 247 (73 N. W. 372); Spray v. Ayotte, 161 Mich. 593 (126 N. W. 630); Lewis v. Brick Co., 164 Mich. 489 (129 N. W. 726). ‘Parties cannot remain silent, and thereby lie in wait to ground error, after the trial is over, upon a neglect of the court to instruct the jury as to something which was not called to its attention on the trial, especially in civil cases.’ Kinney v. Folkerts, 84 Mich. 616 (48 N. W. 283); Hewitt v. Lumber Co., 136 Mich. 110 (98 N. W. 992).”

It is claimed the verdict is excessive, and counsel argue at length that the girl was not virtuous, and the inference is sought to be drawn that she did not resist as much as she ought, and that she was probably willing to have intercourse with Le Boeuf. Her admission does disclose that upon one occasion before this occurrence she had intercourse with a schoolmate, but there is nothing to indicate that she was a depraved giH; but, even though she had upon this one occasion lapsed from virtue, this gave defendant no right to do what the evidence discloses he did do.

The argument was pressed home upon the jury, and it involved a question peculiarly within their province.

The case is an unsavory one. The testimony of the defendant indicates that he is thoroughly depraved. We are not at all surprised that the jury believed the testimony of the girl and of Le Boeuf instead of believing the defendant. If their stories are true, the verdict is not excessive. We do not feel called upon to go into details in this opinion. We content ourselves with saying that, after listening to the able oral argument of counsel for appellant and reading the records and briefs with great care, we reach the conclusion that there was no reversible error.

The judgment is affirmed, with costs to the plaintiff.

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


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    McDERMOTT v. BOARD OF COUNTY ROAD COMMISSIONERS OF KENT CO.
    Highways and Streets — Injunction—Certiorari—Statutes.
    Under 1 Comp. Laws 1915, § 4736, providing that highway proceedings are subject to review by certiorari, and for a speedy bringing of the writ and that the “circuit court shall hear and determine the same without delay, and if any material defect be found * * * such proceedings shall be set aside in so far as erroneous” and “the entire proceedings shall not be set aside except where the county road commissioners are found to have no jurisdiction to act upon the petition presented” and if “no certiorari be brought within the time herein described the improvement shall be deemed to have been legally ordered and established, and its legality shall not thereafter be questioned in any suit at law, or in equity,” if taxpayers fail to use the writ of certiorari to review proceedings because of defective advertising for bids within the prescribed time, such proceedings cannot be questioned afterwards in any suit at law or in equity.
    Appeal from Kent; Perkins, J.
    Submitted October 15, 1917.
    (Docket No. 132.)
    Decided December 28, 1917.
    Bill by Thomas P. McDermott and others against the board of county road commissioners of Kent county and others to restrain the letting of a road contract. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Martin H. Carmody (Francis A. Stace, of counsel), for plaintiffs.

      Cornelius Hoffius and Fred P. Geib, for defendants.
   Moore, J.

The bill of complaint is filed by certain taxpayers in their own and others’ behalf against the board of county road commissioners for a permanent injunction restraining the board from letting a contract for the construction of a concrete road on the ground that in advertising for sealed proposals for such improvement the board called for bids for a concrete roadbed only. The plaintiffs contend that this advertisement is inadequate under the provisions of the general highway law as amended by Act No. 356 of the Public Acts of 1917, chap. 4, § 19, which reads:

“When roads of classes ‘E,’ ‘F,’ or ‘G,’ are to be. constructed or improved, bids shall be advertised for and received on each of said types of construction.”

It is conceded that concrete construction called for by the proposal comes within class “F” above specified, and that classes “E” and “G” call for asphalt and brick construction, respectively. The defendants insist that the advertisement is sufficient under the provisions of Act No. 125 of the Public Acts of 1917, being an amendment to the act commonly known as the Covert act, section 14 of which reads:

“The county road commissioners or the State highway commissioner shall give notice of the letting of such contract or contracts by publishing notice thereof in some newspaper published and of general circulation in the county, at least once in each week for two weeks, and may publish notice thereof, in other newspapers, if they shall deem the same advisable. They may reserve the right to reject any and all bids.”

The defendants claim this proceeding comes exclusively within the provisions of the Covert act, and that the advertisement need not call for bids upon the two other classes of construction. To this contention the plaintiffs reply that the Covert act is but a part of the general highway law, and that the two statutes, being in pari materia, should be construed together.

The circuit judge was of the opinion that the Covert act is complete in itself and unequivocal in its terms, offering, as stated in section 1 of that act, an additional method for constructing and improving the pub-lie highways whenever a portion of the cost is to be paid for by special assessments upon the lands to be benefited. A decree was entered dismissing the bill of complaint. The case is brought here by appeal.

The defendants at the outset claimed:

(1) That the chancery court has no jurisdiction in the matter whatever. That it has no authority to issue an injunction, and had no authority to issue a restraining order, because: First, there is no showing in the bill of complaint anywhere of any irreparable injury to plaintiffs or of any injury whatever such as to call for the extraordinary remedy of injunction against public officials proceeding regularly under a valid statute; second, because the county of Kent is a necessary party to said proceedings and was not such a party when the restraining order was procured (plaintiffs have attempted to make the county a party by amendment since the oral argument) ; third, plaintiffs have a full, adequate, and complete remedy at law provided in the act itself, and which remedy in. the absence of fraud is intended to be exclusive; fourth, the immediate effect provision of the amendment in question is unconstitutional.

(2) Plaintiffs are not entitled to an injunction because the said amendment of the general highway law, above set forth, even if the same became effective, does not either in express terms or by implication amend the Covert law.

We think the determination of one of these claims will make a consideration of the others unnecessary. Section 4736, 1 Comp. Laws 1915, states that the proceedings are subject to review by certiorari, and provides for a speedy bringing of the writ:

“And the circuit court shall hear and determine the same without delay; and if any material defect be found * * * such proceedings shall be set aside in so far as erroneous. * * * The entire proceedings shall not be set aside except where the county road commissioners are found to have no jurisdiction to act upon the petition presented. *' * * If no certiorari be brought within the time herein described, the improvement shall be deemed to have been legally ordered and established, and its legality shall not thereafter be questioned in any suit at law, or in equity.”

Similar provisions in the drain law have been construed by this court. See section 4908, 1 Comp. Laws 1915. And it has been repeatedly held, under the drain law that the remedy by certiorari is exclusive, and that an injunction will not issue to restrain proceedings under the drain law, except in cases of fraud. No fraud is claimed in the case at bar. Strack v. Miller, 134 Mich. 311 (96 N. W. 452); Crandall v. McElheny, 146 Mich. 191 (109 N. W. 261); Auditor General v. Bolt, 147 Mich. 283 (111 N. W. 74); Duryea v. Edinger, 169 Mich. 218 (134 N. W. 978). This court said in Strack v. Miller, supra:

“Section 4346 [1 Comp. Laws (1 Comp. Laws 1915, § 4908)] provides for a review of the proceedings upon certiorari. The purpose of the statute undoubtedly is to give an opportunity to have a speedy hearing upon any question of jurisdiction or any question of irregularity. * * * This could have been accomplished without so much delay and expense as is involved in a chancery proceeding. * * * No such case was stated in the bill of complaint or shown by the proofs as to call for the interposition of a court of equity.”

In Auditor General v. Bolt, supra, the court said of the same provision:

“There was no constitutional objection to this statute. It provides an adequate remedy for any person aggrieved by the proceedings to establish a drain, and protect the public and its officers against the expense and delay which might ensue if the proceedings could be otherwise attacked. The statute points out the mode of review, and unless the method is pursued the legality of the drain cannot ‘thereafter be questioned in any suit at law or in equity/ * * * Doubtless if the records disclosed that a person without color of authority had conducted the proceedings to lay out a drain, such proceedings would be a mere nullity and might be attacked collaterally, but no such case is presented by this record.”

It is not claimed in the instant case that there was any irregularity in the proceedings until the advertising occurred. If plaintiffs were of the opinion that a fatal omission was then made they should have commenced certiorari and the controversy could have been quickly ended. We all know the value of time in road building. The season in which work can economically be carried on is very short. The legislature doubtless had this fact in mind when it provided a speedy remedy for any irregularities. The plaintiffs should have pursued that remedy. Not having done so, the proceeding must be regarded as regular, “and its legality shall not thereafter be questioned in any suit at law or in equity.”

The decree is affirmed, with costs to the defendants.

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


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    ROZYCKI v. LEPPEK.
    Moktgages — Deeds—Evidence—Sufficiency.
    On a bill to bave a conveyance in form a deed by one of the members of a partnership to a partnership creditor decreed to be a mortgage, which had been paid, and to have it discharged of record, evidence held, sufficient to warrant a decree for plaintiff.
    Appeal from Wayne; Law, J., presiding.
    Submitted October 18, 1917.
    (Docket No. 156.)
    Decided December 28, 1917.

      Bill by Stanley Rozycki against Joseph Leppek and another to have a conveyance in form a deed decreed to be a mortgage which has been fully paid, and for its discharge of record. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Wilkinson, Routier & Hinkley, for plaintiff.

      James R. Neill, for defendants.
   Moore, J.

This is a bill filed to have a conveyance in form a deed decreed to be a mortgage, which has been fully paid, and to have it discharged of record. From a decree in favor of the plaintiff the case is brought here by appeal.

It is the claim of the plaintiff that prior to June 23, 1911, Rozycki Bros., a copartnership consisting of the plaintiff and his two brothers, and of which plaintiff was the manager,' was indebted to Joseph Leppek in the sum of $1,219; that in order to secure said indebtedness plaintiff deeded to Joseph Leppek a house and lot in Detroit; that at the time the deed was delivered there was a mortgage on the property, which the plaintiff afterwards paid, securing the money for this purpose by giving another mortgage to the People’s State Bank. It is claimed that after the conveyance was given Joseph Leppek employed Rozycki Bros, to .build some stores, and after this was done said Leppek owed Rozycki Bros. $2,500, and that part of this sum was applied to pay in full the indebtedness for which the deed of June 23, 1911, had been given as security, and that Joseph Leppek should be required to release his security on lot 7, Milwaukee avenue east, as the indebtedness for which the deed was given as security had been paid. It is also claimed that Joseph Leppek wrongfully refused to release his security, but on April 17, 1916, caused the deed to be recorded as an absolute conveyance.

The prayer of the bill is that the defendants be ordered to deed the land back to the plaintiff, and thus release the mortgage lien. The case was tried in open court. Defendant offered no testimony. The trial judge was of the opinion that the plaintiff made out a case by competent and admissible testimony, entitling him to the release for which he prayed, and a decree was made accordingly. We quote from the brief of appellant:

“According to Exhibit 1 (Record, p. 15), which is an alleged receipt, purporting to have been signed by the defendant on the 12th day of October, A. D. 1914, this same indebtedness of plaintiff of $1,219 was paid, but the record and pleadings in this case fail to show that plaintiff considered the indebtedness extinguished at this time; or does the plaintiff predicate this suit on that theory ; or does the plaintiff offer any testimony to explain this.”

The contention of appellant is summarized in the brief as follows:

“In conclusion we contend that plaintiff has failed to establish any of the material allegations in his bill of complaint by competent testimony, and we respectfully ask that this cause be reversed, and a decree entered by this court dismissing plaintiff’s bill of complaint.”

The important questions are purely questions of fact. Exhibit 1, mentioned by counsel, is inartificially drawn, but it, with the other exhibits, goes far to sustain the claim of the plaintiff. When there is added to this the competent oral testimony, we think plaintiff has proven his case, so that the trial court very properly made the decree which was entered. It is affirmed, with costs to the plaintiff.

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


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    MONTGOMERY PEAT FUEL CO. v. J. D. FATE CO.
    Corporations — Bills and Notes — Fraud—Evidence—Sufficiency.
    On a bill to enjoin a bank from delivering to defendant corporation a note given by plaintiff corporation to defendant corporation in part payment for machinery, on the ground of fraud, evidence held, to show that defendant corporation was engaged in promoting plaintiff corporation.
    Appeal from Hillsdale; Chester, J.
    Submitted October 4, 1917.
    (Docket No. 29.)
    Decided December 28, 1917.
    Bill by the Montgomery Peat Fuel Company against the J. D. Fate Company and others to enjoin the delivery of a note, and for the cancellation of said note. From a decree for plaintiff, defendant company appeals.
    Affirmed.

      F. A. Lyon, for plaintiff.

      Paul W. Chase and B. E. Sheldon, for appellant.
   Moore, J.

This case was commenced by the plaintiff against the J. D. Fate Company, an Ohio corporation, Amos Keller, and the Montgomery State Bank, to enjoin the State Bank of Montgomery from delivering to the defendant J. D. Fate Company a promissory note given by the Montgomery Peat Fuel Company to the J. D. Fate Company, dated' October 9, 1914, for the sum of $8,950, with interest; it being the claim that the note was procured by fraud. The bill also prays for a cancellation of this note.

A large amount of testimony was given on the part of the plaintiff. No testimony was offered on the part of the defendants. After the testimony was closed and the case argued the trial judge expressed himself as follows:

“The evidence produced on this trial shows:
“(1) That the J. D. Fate Company was interested in promoting and organizing the Montgomery Peat Fuel Company for the purpose of furnishing the machinery for the operation of the peat plant; that it was understood from the first that the J. D. Fate Company was to furnish the machinery and at a reasonable price, and was to receive stock in the company to apply on the purchase price of the machinery.
“(2) That the J. D. Fate Company charged for the machinery it so furnished a price far beyond its usual selling price or value, so that it (the J. D. Fate Company), if it received pay on the notes, would receive more than its usual asking price for its machinery and have the $4,000 stock for promotion.
“(3) A comparison of itemized prices made the Montgomery Peat Fuel Company with prices made to Mr. Small for the same articles shows as follows:
Listed to Montgomery Peat Fuel Company, amount................................... $8,425 00
To Small, after discount of 25 per cent.... 3,090 50 Add to the figures given Mr. Small:
Value of Electrical Machinery, as per evidence 75 00
Value of extra die, as per evidence.......... 5 50
Also T-rails listed to Peat Company at $100 less discount of 25 per cent................ 75 00
Also shafting, etc., listed to Peat Company at $300 less discount of 25 per cent.......... 225 00
Also 500 feet cable at 8c.................... 40 00
Makes a total value of machinery furnished.. $3,511 00
To this add the promotion stock promised of.. 1,000 00
Making a full total to be received by J. D. Fate Co. of........................... $4,511 00
The J. D. Fate Co. has already received:
In stock .....................-... $4,000 00
And in cash .................... 1,000 00
Or a total of .............. $5,000 00
—which is $489 more than the rate at which the property was listed to Mr. Small, and $489 more than the usual .and reasonable selling price of the property and machinery furnished the Montgomery Peat Fuel Company.
“ (4) The Montgomery Peat Fuel Company and its stockholders, except Keller and the J. D. Fate Company, did not know of that overcharge for the machinery, and the Peat Company relied on the representations, and believed them as true, that it was getting the machinery at a reasonable price.
“(5) The buying the machinery and installing the plant for effective operation was as much a part of the promotion as the act of incorporating.
“(6) It also appeared on the trial that one of the officers of the J. D. Fate Company was present in court during the trial and another officer of the J. D. Fate Company was there a portion of the time.
“Conclusions of Law.
“(1) Defendants the J. D. Fate Company and Amos Keller were promoters of the organization of the Montgomery Peat Fuel Company and establishing the plant for operation.
“(2) That'said defendants as such promoters occupied a fiduciary relation to the complainant and its stockholders.
“(8) That defendants owed the duty to complainant and its then stockholders to deal openly and fairly with them, and not to receive any secret profits that were unreasonable and were unknown to the corporation.
“(4) That a court of equity is a proper forum in which to determine the issues in this case and grant relief.
“ (5) From the foregoing findings of fact and conclusions of law it follows that a decree should be entered canceling the note in question in this case.”

A decree was entered in accordance with the opinion. The case is here on appeal.

We quote from the brief filed in behalf of the appellant:

“While the theory of the bill is: That the J. D. Fate Company, at Plymouth, Ohio, desired the formation of the Peat Fuel Company, at Montgomery, Mich., with the hope and expectation that it might become its customer in the purchase of machinery and apparatus, yet no witness in the record establishes the shadow even of a connection of the Fate Company with this project until after the incorporation of the Peat Fuel Company. While the bill charges that the Fate Company conspired with Amos Keller to bring about the formation and incorporation of the Peat Fuel Company, yet the record is barren of the slightest intimation that the Fate Company knew that such a movement had been going on at Montgomery until James McCallum’s first visit to Plymouth, where he and Amos Keller interviewed said company at its place of business, the occasion which resulted in the shipment of peat from Montgomery to Plymouth for experimentation. * * *
“We say there is nothing in the record to support the finding: ‘That the J. D. Fate Company was interested in promoting and organizing the Montgomery Peat Fuel Company’ for any purpose whatever. We ask critical attention to this question. We say, further, that nothing in the record supports the claim that: The J. D. Fate Company ever understood that it was to furnish the machinery prior to the execution of contract of date June 16, 1914, when the price was agreed on by both competent parties. We say that the stock of the Peat Fuel Company set forth in the contract as part payment on the machinery has, in fact, never been received by the J. D. Fate Company. We say that on June 16, 1914, when the contract was made, the J. D. Fate Company was in no manner or form of law a promoter of the Peat Fuel Company even though it had been at any time before, which we deny.”

An examination of the record makes it evident counsel has overlooked some very persuasive testimony. The first man who conceived the idea of making peat fuel at Montgomery, so far as disclosed by the record, was Amos Keller, who called the atténtion of James McCallum and his son to the value of the peat deposit on their land. He supplied them with various literature upon the subject, some of which had the following:

“Peat, Its Origin and Uses.
“Extracts from United States Geographical Survey,
“United States Consular Reports and
“Foreign Government Reports.
“The J. D.-Fate Co., Plymouth, O.
“Manufacturers of Special Peat Briquette Machinery.
“Amos Keller, Sole Agent, Lima, O.”

He interviewed many persons in the neighborhood of the McCallums urging upon them the value of the peat deposit, and the possibilities of a great profit by organizing a company to manufacture the peat into fuel briquettes. He gave them like literature to that given to the McCallums. As the result of his activities a public meeting was called at which he stated that the J. D. Fate Company were successful makers of the machinery required, and that, while ordinarily they would get $15,000 for the machinery, they would supply what was needed in this undertaking for $12,-000, and that they would subscribe for $4,000 of the stock. A corporation was finally organized in which the J. D. Fate Company appeared as subscriber for $4,000 of the stock. When the articles of association were sent to the office of the secretary of State, it was stated there that J. D. Fate Company, a corporation, could not subscribe for stock in a Michigan corporation, and the articles were sent to Plymouth, where the subscription of J. D. Fate Company was erased, and H. H. Fate, one of the officers of the corporation, subscribed for the same amount!which had been subscribed by J. D. Fate Company, and went before a notary public and acknowledged the signing and execution in proper form by him, and the articles were returned to the office of the secretary of State and duly filed. Later, by direction contained in a letter from the J. D. Fate Company, the 40 shares of stock so subscribed were issued to Amos Keller. The contract itself commences with these words:

“Price and terms for this complete outfit as outlined above is as follows: J. D. Fate Company is to receive for the machinery f. o. b. cars their works $4,000.00 in stock of the Montgomery Peat Fuel Company, the receipt of which is hereby acknowledged, and $4,950 in cash, as follows: $1,000.00 cash upon signing of this proposition; $3,950 when machinery is set up and in operation.”

There is other testimony indicating that Mr. Keller was acting for the J. D. Fate Company, and that they were taking part in what was done. We think it has some significance that, though one of the officers of J. D. Fate Company was present in court during the trial, and another one during a portion of the trial, they remained silent.

It would profit no one to go more into detail. The record abounds with testimony justifying the conclusion of the trial judge.

The decree is affirmed, with costs to the plaintiff.

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


text:
    EMMONS v. EMMONS.
    1. Divorce — Alimony—Statutes.
    The authority to mate decrees in relation to alimony and the division of property in cases of divorce is purely statutory and is conferred by 3 Comp'. Laws 1915, chapter 217.
    2. Same — Decree—Construction—Title to Land.
    A decree of divorce providing that plaintiff from the date thereof should have and enjoy the “use, benefit, and possession” of the described land with all appurtenances belonging thereto until further order of court, and requiring a deed forthwith from defendant, and further providing that the further consideration of the question of alimony and property interests are reserved for further order and decree, does not give the plaintiff a fee simple in the property.
    Error to Kent; Barton, J., presiding.
    Submitted October 23, 1917..
    (Docket No. 169.)
    Decided December 28, 1917.
    Ejectment by Albert C. Emmons against William Emmons. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Hawley & Eldred, for appellant.

      J. L. Boyd, for appellee.
   Moore, J.

This is an action in ejectment. At the close of the testimony the judge directed a verdict in favor of the plaintiff. The case is brought here by writ of error.

The facts are not in dispute. It is conceded that prior to November 28, 1898, the plaintiff was the owner in fee of the land in controversy. On that day the wife of the plaintiff was granted a decree of divorce upon the ground of desertion. There was in the decree the following:

“And the court doth further order, adjudge, and decree that said complainant,. Mary Emmons, from the date hereof have and enjoy the use, benefit, and possession of the land above described with all the appurtenances thereunto belonging until the further order of this court.
“And the court doth further order, adjudge, and decree that said defendant, Albert C. Emmons, forthwith- convey by proper deed to the said complainant, Mary Emmons, the real estate above described with all appurtenances thereunto belonging, and that, if he shall for three months from the date hereof , fail and neglect to make conveyance as aforesaid, that this decree stand and be regarded as such conveyance, and a certified copy thereof may be recorded with the register of deeds of said county as evidence of such conveyance.
“It is further ordered that the further consideration of the question of alimony and the property interests involved in said cause be and the same are hereby reserved for further order and decree herein.”

The plaintiff made no conveyance. The decree was recorded in the office of the register of deeds on the 1st day of March, A. D. 1898. Mary Emmons, named as complainant in said decree, died on the 6th day of September, 1915, leaving as her children and heirs at law the defendant, William Emmons, and Effie Smith, Lottie Riley, and Ettie Sherrard. Effie Smith, Lottie Riley, and Ettie Sherrard since becoming of age and previous to the commencement of this suit conveyed whatever right, title, or interest they had in the above-described lands to the defendant, William Emmons, who was in possession of said lands at the time of the commencement of this suit. It is also admitted that Mary Emmons had the actual possession of the said premises continuously from the date of the decree to the time of her death. It was not shown that the decree was ever modified.

It is conceded the defense hinges upon the provi- ■ sions of the decree. The claim of counsel is stated in the brief as follows:

“We insist that the decree does grant to her the title to said land in fee simple. True it is that this title may be a base or qualified title in fee simple, and not a fee simple absolute; but it is equally true that the estate granted by the decree is at least a base or qualified estate in fee.
“A base or qualified fee is an interest which may continue forever, but which is liable to be brought to an end by the operation of some act or event limiting its continuance or extent. 2 Blackstone, Com. 109; 4 Kent, Com. (12th Ed.) 9.
“In case the event which limits the duration of a base fee does not happen during the life of its owner, the estate will descend to his heirs subject to the specified determination. 2 Blackstone, Com. 109; 4 Kent, Com. (12th Ed.) 9, 10.”

It is contended that, as the decree was never modified, upon the death of Mrs. Emmons her children would inherit the real estate which is. the subject of this suit.

The diligence of able counsel has not' called to our attention any authority that is controlling. The authority to make decrees in relation to alimony and the division of the property in cases of divorce is purely statutory, and is conferred by chapter 232, 3 Comp. Laws, now chapter 217, 3 Comp. Laws 1915.

In Bialy v. Bialy, 167 Mich. 559 (133 N. W. 496, Am. & Eng. Ann. Cas. 1913A, 800), Justice Steere, speaking for the court, discusses quite at length the principles which should control in providing permanent alimony and'the authority which gives the court of chancery its power to make decrees in relation thereto. In the course of the discussion, it is said:

“Alimony, by whatever authority it is conferred, is an incident of marriage, and based on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily, it signifies, not a certain portion of his estate,, but an allowance or allotment adjudged against him for her' subsistence, according to his means and their condition in life during his separation, whether it be for life or for years. In practical application an award of permanent alimony in a gross sum may result in a division of the husband’s estate; but the controlling element not to be lost sight of is his compulsory contribution for her support and maintenance under obligations of the marriage contract.”

The record does not disclose the amount of property possessed by either Mr. or Mrs. Emmons at the time the decree in the divorce case was made. It must be conceded that the language of the decree is somewhat ambiguous. It is clear that the judge meant to decree to Mrs. Emmons personally the “use, benefit, and possession of the land * * * with all the appurtenances,” not for a stated time, but until the further order of the court. There is nothing in the decree to indicate that he intended that anybody but Mrs. Emmons should “enjoy the use, benefit, and possession of the land.” There is no suggestion that upon her death the real estate should go to her children. The decree closes with the statement:

_ “It is further ordered that the further consideration of the question of alimony and the property interests involved in said cause be, and the same are hereby, reserved for further order and decree herein.”

—which is quite inconsistent with the idea that the title in fee to the real estate passed to her and her heirs by the decree.

Judgment is affirmed, with costs to the plaintiff.

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


text:
    SCHEIBNER v. SCHEIBNER.
    Wills — Perpetuities—Estates in Trust — Suspending Power of Alienation — Statutes.
    A will by which a testator, after making certain bequests, devises the residue of his property to trustees, who are to. pay the income therefrom to the widow for life, and after her death, pay the two sons of testator a certain sum each until the expiration of 20 years from his death, and not mortgage or sell the property during such period, and, after the expiration of such period, convert the estate into cash and pay the net' proceeds to the two sons, share and share alike, is void, since, by the terms of the attempted trust, there are no persons in being in whom an absolute fee in possession can be given, and the absolute power of alienation is suspended beyond the limit allowed by law.
    Appeal from Wayne; Kendrick, J., presiding.
    Submitted October 15, 1917.
    (Docket No. 115.)
    Decided December 28, 1917.
    Bill by Charles G. Scheibner against Louisa Scheibner and others for a construction of a will. From a decree denying a motion to dismiss, defendants appeal.
    Affirmed.

      Frank N. Renaud (Bishop & Kilpatrick, of counsel), for plaintiff.

      William Henry Gallagher and Francis T. McGann, for defendants.
   Moore, J.

The bill of complaint avers, in substance, that Ferdinand Scheibner died in Canada, leaving a will which was probated in Canada, in which he gave to a nephew $1,000, to a niece $1,000, and. to the children of a deceased brother $1,500. The will then reads:

“Fifth. I give, devise and bequeath all the rest and residue of my estate, both real and personal and wherever situated unto my trustees hereinafter named upon the following trusts:
“I. To pay the income or revenue arising therefrom unto my wife, Louisa Scheibner for her own use absolutely and to permit her to use and occupy my homestead being part of lot four, in said township of Malden, with its furniture and contents, for and during her natural life.
“II. To pay unto my sons Charles Scheibner and William Scheibner the sums of seventy-five dollars a month each, from and after the death of my said wife, until the expiration of a period of twenty years from the date of my death, during which time I direct that none of my property shall be sold or mortgaged.
“III. To convert my said estate into cash at the expiration of the said period of twenty years and the net proceeds thereof to pay unto my said sons Charles Scheibner and William Scheibner, share and share alike, for their own respective use absolutely.”

It is further averred that a certified copy of the will was allowed by the probate court of Wayne county as a foreign will and executors were appointed; that deceased left in Wayne county upwards of $70,-000 worth of real estate and $8,000 and upwards of personal property. It is averred that:

“Charles G. Scheibner and William Scheibner are children of said Ferdinand Scheibner, deceased, and that Louisa Scheibner is the widow of said Ferdinand Scheibner. deceased, and that all of said children were living and were of full age at the time of the death of said Ferdinand Scheibner, deceased; and that there were no other children or any issue of any deceased children of said Ferdinand Scheibner, deceased, living at the time of his death. * * * That the rights and interests of your orator as an heir at law of Ferdinand Scheibner, deceased, are injuriously affected by paragraph 5 of said will, and especially by subdivisions 2 and 3 of 'Said paragraph, and your orator is advised and believes,' and charges the fact to be, that the trust attempted to '-be created by said paragraph 5 is void and inoperative and that subdivisions 2 and 3 of said paragraph are void and inoperative under the statutes of Michigan; that by the terms of said attempted trust there are no persons in being by whom an absolute fee in possession can be given, and the absolute power of alienation is suspended beyond and contrary to the period allowed by law.”

The prayer, in part, is:

“(b) That this court may declare by its order and decree: (1) That subdivisions 2 and 3 of paragraph 5 are void and inoperative as creating estates in which the absolute power of alienation is suspended beyond and contrary to the period allowed by law; (2) that paragraph 5 of said will is void and inoperative as attempting to create a trust by the terms of which there are no persons in being by whom an absolute fee in possession can be given and which suspends the absolute power of alienation beyond and contrary to the manner prescribed by the laws of the State of Michigan; (3) if said trust is void and inoperative, that this court may order and decree that the properties thereby covered descend at once to the widow and children of Ferdinand Scheibner, deceased, as though he had died intestate relative thereto.
“(e) That this court may give such further direction in regard to the meaning and intention of several provisions in said will as shall seem meet to this court, and that if the trust created by said will is void, wholly or in part, your orator and the said estate be relieved therefrom, to the same extent as the same may be held void.
“(d) That your orator may have such other relief as may be agreeable to equity.”

The defendants interposed a demurrer, which was overruled, and the case is brought here for review.

The ground of demurrer is that plaintiff has an adequate remedy at law. We quote from f^he brief of appellant:

“It is claimed that, this being 7a bill relating to trusts, equity’s jurisdiction of trusts becomes involved, and for that reason the bill should be entertained. This contention would be sound were this a proceeding for the construction of, or the determination of, rights under a trust. But this bill denies that a valid trust has been created. The denial of the existence of a valid trust carries with it the denial of the jurisdiction of the court to entertain an allegation concerning it. The precise question has been determined in New York” — citing Jones v. Richards, 24 Misc. Rep. 625 (54 N. Y. Supp. 126).

In that case only real estate was involved, and it was held there was an adequate remedy at law. In Wager v. Wager, 89 N. Y. 161, it is held that an executor of the personal estate is a trustee thereof and can be called to account in a court of equity. It was further held that, where the court has obtained jurisdiction for the purpose of establishing rights to the personalty, it will adjust the whole controversy.

Whatever may be said of other courts, this court has frequently construed wills involving like questions to those before us. See Cole v. Lee, 143 Mich. 267 (106 N. W. 855); Foster v. Stevens, 146 Mich. 131 (109 N. W. 265); McInerny v. Haase, 163 Mich. 364 (128 N. W. 215); Van Gallow v. Brandt, 168 Mich. 642 (134 N. W. 1018). The most recent case is Otis v. Arntz, 198 Mich. 196 (164 N. W. 498), in which we construed the provisions of a will which were in principle much the same as in the instant case, and held that the provisions of the will were void. See the authorities cited therein. The case is so recent and so accessible that we content ourselves with referring to it.

The order of the court below is affirmed. The appellants are given the usual time to answer. Plaintiff will recover costs.

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