text:
    VAN DUSEN v. KING.
    Sheriffs — Abuse of Process — Interest in Suit — Chattel Mortgage-Duress. ' -
    A sheriff has no authority to execute a writ of attachment issued out of justice’s court to enforce a claim which he has undertaken to collect for a portion of the proceeds, and a chattel mortgage given to avoid a threatened levy by virtue of such writ is invalid for fraud and coercion. How. Stat. §§ 590, 596, 606, 7050, 9035.
    Error to Montcalm; Davis, J.
    Submitted June 12, 1895.
    Decided July 2, 1895.
    Trover by Amanda M. Van Dusen against Charles M. King for property seized under chattel mortgage. From a judgment for defendant, plaintiff brings error.
    Reversed

      Lemuel Clute and Miller & Clute, for appellant.

      F. A. Miller, for appellee.
   McGrath, C. J.

This is trover for the seizure and sale of a voice of steers, under a chattel mortgage. Defendant, while sheriff, took for collection a note against plaintiff’s husband, under an agreement with the payee that he, the sheriff, was to have half of the proceeds in case he succeeded in collecting it. He then went 'before a justice, took out a writ of attachment in the name of the payee of the note, and, armed therewith, went to the house of the maker and threatened to make a levy unless the note was paid. To avoid such threatened levy, the mortgage was given by plaintiff’s husband, and defendant afterwards seized the property thereunder. Defendant testifies that plaintiff at that time made no claim to the property, but refused to join in the mortgage. It was admitted upon the trial that the property did in fact belong to plaintiff when the mortgage was given, and when the steers were taken under the mortgage. The court, however, instructed -the jury that, if she stood by and assented to the giving of the mortgage, she was estopped. This instruction was, perhaps, supported by the testimony of the defendant, although his testimony was disputed, not only by plaintiff, but by others. The court further instructed the jury that the sheriff had a right to take the course he did to make this collection, and “that the question as to how he came by the note, so long as it is not disputed but what it was a valid indebtedness, is no question or concern to you.”

In this the court erred. 1 How. Stat. § 590, provides that—

“No. sheriff, deputy sheriff, or coroner shall appear in any court as attorney or counsel for or on behalf of any party in a suit; nor shall he draw, make, or fill up anj writ, declaration, -plea, or process for any such party; nor shall he, with intent to procure himself to be employed in the collection of any demand or the service of any process, advise or counsel any person to commence any suit or proceeding; and either of said officers, for a violation of any provision of this section, shall forfeit the sum of fifty dollars.”

In Garrison v. Hoyt, 25 Mich. 509, it was held that the alteration of a summons by a sheriff, although authorized so to do by the justice, invalidated the process.

2 How. Stat. § 7050, provides that—

“No justice of the peace or constable shall, directly or indirectly, buy or be interested in buying any bond, note, or other demand or cause of action, for the purpose of commencing any suit thereon before a justice; nor shall any justice or constable, either before or after the suit brought, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money or valuable thing to any person in consideration of, or as a reward for, or inducement to, the placing or having placed in the hands of such justice or constable any debt, demand, or cause of action whatever for prosecution or collection.”

Section 7052 subjects the offending justice or constable to a fine not exceeding $500, or imprisonment not exceeding six months, or both fine and imprisonment. Section 596 authorizes sheriffs to serve or execute process issuing'' from a justice, and to exercise all the powers of constables. Section 9035 provides that—

“No judge, justice, sheriff, or other officer whatsoever, or other person to whom any fees or compensation shall be allowed by law for any service, shall take or receive any other or greater fee or reward for such service, but such as is or shall be allowed by the laws of this State.”

Section 606 provides that the coroner shall serve and execute all process when the sheriff shall be a party.

Clearly, under these statutory provisions, the sheriff had no authority to execute the writ of attachment. He concealed from the parties the fact that he was there as a party in interest, and asserted a right, which he did not possess, of acting as a public officer, and, by threatening a levy and sale if the debt was not settled, secured the mortgage. Under such circumstances, it must be held that the mortgage was obtained by fraud and coercion. A sheriff cannot be allowed to wield the process of the courts in his own interest, and thus abuse such process. As is said in one of the oases, it is not so much a question of individual right as of public policy. Mills v. Young, 23 Wend. 314; Stewart v. Magness, 2 Cold. (Tenn.) 310; Sherman v. Boyce, 15 Johns. 443; Caffrey v. Dudgeon, 38 Ind. 521; Carpenter v. Stilwell, 11 N. Y. 61.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    SMITH v. CITY OF JACKSON.
    Defective Streets — Contributory Negligence.
    One who drives at a trot along a street, upon a dark night, ' within four or five feet of a lighted red lantern displayed near the center of the street, and seen by him when several rods distant, is guilty of contributory negligence precluding a recovery for injuries sustained by falling into an excavation thus sought to be guarded.
    Error to Jackson; Peck, J.
    Submitted June 12, 1895.
    Decided July 2, 1895.
    Case by Adelbert H. Smith against the city of Jackson for personal injuries. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Blair, Edwards & Blair, for appellant.

      William E. Ware, for appellee.
   McGrath, C. J.

Plaintiff, while driving upon a public street in the night-time, drove into an excavation, and brings case against the city. The court held that plaintiff was guilty of contributory negligence, and directed a verdict for the city.

The city had recently laid water mains in Ganson street, an east and west street, and was engaged in connecting a hydrant at the south curb of the styteet. The main had been laid near the center of the street. To make the connection, the original trench was reopened for some ten feet, and a trench had been made from the maiu to the curb, forming a T. The earth from the north and south trench had been thrown up on both sides. of the excavation, while the earth from the trench over the main had been thrown to the north, forming a mound four feet in height, the south line of the base of which was one foot from the north line of the trench. A lighted red lantern was placed on the top of this mound about midway between the east and west ends thereof. Plaintiff testified that he was driving east- at a slow jog trot; that he saw the light right ahead of him when he was four or five rods west of the light; that his horse continued at the same gait until he reached the vicinity of the light, when he turned to the right to shun the light; that the horse and the left front wheel of the buggy fell into the east and west trench; and plaintiff thinks that he was thrown over the earth into the north trench leading to the curb. The main trench was from 2 to 2£ feet in width.

In view of plaintiff’s own testimony, we think that the court did not err in holding, as a matter of law, that plaintiff, in continuing at a trot along this street, upon a dark night, within four or five feet of a recognized danger signal, was not in the exercise of ordinary care. If he.' had slackened the speed of his horse, and felt his way, it might have been said that he was in the exercise of some degree of care in the presence of a warning of danger, but he does not seem to have taken any precaution except to avoid driving over the light. This is not a case where plaintiff had knowledge of an existing defect, but in the darkness was'unable to locate it. In Wood v. Bridgeport Borough, 143 Pa. St. 167, the trench extended across the entire street, and two lights were placed on the right-hand side of the street. In Crowther v. City of Yonkers, 15 N. Y. Supp. 588, the sewer extended over 70 feet, and was protected only at its head. Plaintiff was found injured at the bottom of the sewer 70 feet from the head of the sewer. These cases are clearly distinguishable from the present.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    STANDARD LIFE & ACCIDENT INSURANCE CO. v. CATLIN.
    Life Insurance — Interpleader—Rights of Beneficiary — Insurable Interest.
    Where a life-insurance company concedes its liability upon a policy payable to a specified person if surviving, otherwise to the legal representatives of the insured, and pays the amount of the policy into court, the administrator cannot resist payment to the beneficiary named on the ground that he had no insurable interest in the life of the insured.
    Appeal from Wayne; Lillibridge, J.
    Submitted June 12, 1895.
    Decided July 2, 1895.
    Bill of interpleader by the Standard Life & Accident Insurance Company against Nettie Gail Catlin and James E. Hawkins, administrator of the estate of Andrew Catlin, deceased, to determine the right to the proceeds of a policy. From a decree in favor of defendant Catlin, the administrator appeals.
    Affirmed.

      T. A. E. & J. G. Weadock (T. E. Tarsney and W. W. Wicker, of counsel), for appellant.

      Sellers & Sellers, for defendant Catlin.
   Montgomery, J.

This is a hill of interpleader. The complainant, having admitted liability upon a policy of insurance issued to Andy Catlin, and having paid the money into court, the contest is between Nettie Gail Catlin and the personal representatives of the deceased. The policy contained the following assurance by the company:

“Will pay the insured the full principal sum aforesaid; or if death shall result from such injuries alone, within 90 days, will pay $000 to little Nettie Gail Catlin, daughter, if surviving, or, in the event of her prior death, to the legal representatives or assigns of the insured.”

It is contended by the counsel for the administrator that Nettie Gail Oatlin was not in fact the daughter of the deceased, and did not have an insurable interest in his life. If this contention should be allowed as a matter of fact, it would follow that the policy is void on the ground of public policy. Mutual Benefit Association v. Hoyt, 46 Mich. 473. But we think, as between the complainant (the insurance company) and Nettie Gail Catlin, the question is not here. The company concedes its liability on the contract, and has paid the money into court. If the question were open, it is difficult to see how a determination that the policy is a wager policy would be fruitful in results to the heirs of the deceased. See Smith v. Pinch, 80 Mich. 332. There is no doubt upon this record either of the identity of Nettie Gail Catlin or that she survived the insured. By the very terms of the policy, the heirs are not then beneficiaries. The policy is payable to the legal representatives of the deceased only in the event of the death of Nettie Gail Catlin prior to the death of the insured. The only contingency, therefore, by which the heirs can, under the terms of the policy. become interested in the insurance, has not happened; and, as the company concedes its liability upon the contract, we think the appellant is not concerned in the litigation, and the decree awarding the fund to Nettie Gail Catlin should be affirmed, with costs.

The other Justices concurred


text:
    JUDSON v. MILLER.
    1. Equity Jurisdiction — Reformation of Oonveyanoe — Statute of Frauds.
    Equity has jurisdiction to -correct a mistake in the description of land in a-conveyance, irrespective of the statute of frauds.
    2. Mortgage Foreclosure — Defenses—Title Founded on Tax Deeds — Neglect of Administrator.
    One who has purchased land from a claimant under tax deeds cannot defend a suit to foreclose a purchase-money mortgage given by him upon the ground that it was his duty, as an administrator in possession, to discharge the taxes for the non-payment of which the deeds were executed, and that, therefore, he acquired no title and the mortgage could convey none.
    Appeal from St. Clair; Vance, J.
    Submitted June 19, 1895.
    Decided July 2, 1895.
    Bill by James B. Judson and Washington G. Wiley against Henrietta Miller and Edward Kessel to reform a deed and a mortgage, and to foreclose the latter. The conveyances described the land as located upon a section other than that alleged to have been intended. Complainants appeal from a decree dismissing the bill.
    Reversed.

      Atkinson & Wolcott, for complainants.

      Phillips & Jenks (John M. Gleason, of counsel), for defendants.
   Montgomery, J.

This suit was originally instituted against Henrietta Miller and Edward Kessel. Defendant Kessel disclaimed any interest on the trial, and the case proceeded as though Mrs. Miller were the only defendant..

Defendant is the wife of Jacob Miller, who, in 1836, purchased the E. \ of the S. W. \ of section 32, township* 7 N., range 17 E., by contract from one Samuel Wilson, who had located it in 1825. Jacob Miller and his wife, the defendant, lived on the land from- the time of their purchase until 1860, when Jacob died, and the defendant was appointed administratrix of his estate, and has continued in possession of the premises ever since. There-remained about $150 due from Miller to Wilson on the principal sum secured by the contract, which has never-been paid. After the date of Miller’s contract, on January 20, 1836, Wilson sold the land to Charles Pel-tier, the conveyance being recorded the same day. February 4, 1836, Peltier conveyed to Peter Desnoyer, by a deed recorded February 15, 1836. Desnoyer gave back a purchase-money mortgage to Peltier, which was duly recorded. There appears written across the face of the-record of this mortgage what purports to be a discharge, in which instrument the name “Charles Peltier” appears-in the body, but the signature, while it may have been intended for “Peltier,” is indistinct, the complainants contending that the word reads “Pelim,” but the circuit judge found that it was that of Charles Peltier. On December 13,1836, Desnoyer conveyed to Charles D. Robinson by a deed recorded December 23, 1836. September 27, 1842, Charles Peltier conveyed to Henry N. Walker by a deed which, after describing the land, contains this recital:

“Being the same land heretofore deeded by C. D. Robinson and wife to Charles Peltier, by deed dated August 21. 1841.”

February 19, 1881, Henry N. Walker conveyed to complainant Wiley. The auditor general, by two separate deeds, conveyed the same premises to complainant Judson, October 20,1880, and December 7,1880, respectively, for the taxes of 1877 and 1878.

In the fall of 1881, one of the complainants, Mr. Wiley, visited the defendant, and exhibited to her an abstract of title, and pressed for an adjustment of complainants’ claims to the land. Subsequently the complainants executed a deed, which both they and the defendant supposed to be a deed of the land in question, running to defendant, and sent the same to N. E. Thomas, an attorney in Port Huron, to negotiate a settlement. Thomas and defendant agreed upon a price of $250, which was secured by mori gage running 10 years, with interest at 7 per cent. In the mod gage the same mistake was made describing the land as in the deed. In May, 1882, defendant paid $25 on the mortgage, and in January, 1883, $17. When the mortgage fell due, no further payments having been made, complainants foreclosed by advertisement. When the title became absolute in them, there were some negotiations between the parties, complainants offering to accept the amount of their bid, with interest. During these negotiations, the error in the description common to the deed and mortgage was discovered. The negotiations were terminated, and complainants filed this bill, asking to have the deed and mortgage reformed, and for a foreclosure of the mortgage. The circuit judge dismissed the bill, and complainants appeal.

Defendant claimed that she made this settlement hurriedly, and under threat that the property would be sold unless a settlement was made within a week, and that •she had no opportunity to investigate complainants’ claims to the title. But we are satisfied from the testimony that no fraud was practiced, and that she had ample time to investigate. The circuit judge denied relief, however, on the ground that, the lands not being correctly described in the conveyances which passed between the parties, the contract rested in parol, and that, as the complainants have not done anything- which they would not have done or omitted to do anything which -they would have done but for the^mistake, they are not entitled to relief in equity. The circuit judge seems to -have relied upon Climer v. Hovey, 15 Mich. 18, to sustain this holding. That case was a case of an executory contract, and the view which the circuit judge seems to have followed was adopted only by Mr. Justice Campbell, Justices Coolicy and Ciiristiancy expressly reserving the question, and Chief Justice Martin concurring in the result. In. case of an executed contract, howéver, the great weight of authority is that equity has full power, on the ground of mistake alone, to correct a mistake in the description of land, even -though the statute of frauds requires such conveyance to be in writing. In 2 Pom. Eq. Jur. § 866, it is said:

“It is settled by the great preponderance of authority that a deed of land may be thus corrected by enlarging-its scope, extending its operation to other subject-matter, supplying portions of land which had been omitted, making the estates conveyed more comprehensive, as changing a life estate into a fee and the like, and by enforcing the. instrument thus varied against the grantor.”

See, also, Coulin v. Masecar, 80 Mich. 139; Kimble v. Harrington, 91 Mich. 281; Wat. Spec. Perf. § 372.

It is contended by defendant that as the circuit judge found that the only title which the complainants had was a tax title for unpaid taxes, and as it was the duty of 'the administratrix to pay the taxes, she could not acquire a title by tax deed, and that, therefore, the mortgage conveyed no interest. We think this contention should not be allowed. The conveyance and the mortgage should be treated together, -and whatever title she acquired is subject to the mortgage. The court will not undertake to determine what title complainants may acquire by foreclosure. That question may arise later, between the heirs of Jacob Miller and the complainants. Rulr, upon this record, we think the complainants clearly entitled to a reformation of the instruments and to a foreclosure of the mortgage.

The decree below will be reversed, and a decree entered in. this court in accordance with this opinion, with costs of both courts to complainants.

The other Justices concurred.


author: McGrath, C. J.

text:
    WHITE v. PEABODY.
    1. Bound ames — Evidence of Location — Town Plats — Resurvey.
    The boundaries of a town lot, when in dispute, will be determined from the lines actually established upon the ground, agreed upon by the adjacent owners, and long acquiesced in by them, rather than from a recent survey, dependent upon a different construction of the plat.
    2. Trespass — Evidence—Location of Boundary.
    The rule that the plaintiff in trespass qu. cl. is restricted in his proof to the lands described in his declaration cannot be invoked to exclude evidence of the true location of a disputed boundary.
    3. Boundaries — Acquiescence.
    Acquiescence in a boundary line fixed by agreement need not, to be effectual, have continued for a period equal to that prescribed by the statute of limitations.
    4. New Trial — Discretion of Court.
    The denial of a motion for a new trial upon the ground of newly-discovered evidence will not warrant a reversal as for an abuse of discretion on the part of the trial court where the testimony relied upon was merely cumulative.
    Error to Monroe; Kinne, J.
    Submitted June 13, 1895.
    Decided July 2, 1895.

      Trespass guare clausum, fregit by Horace White against Lucien V. Peabody. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Randall & Corbin and E. R. Gilday, for appellant.

      Elam Willard and C. A. Golden, for appellee.
   McGrath, C. J.

Plaintiff brought trespass in justice’s court, describing his close as “Lot No. 10, and the adjoining portion of lot 12, occupied and owned by said plaintiff, in the Pusey plat in said village, and being the lot and land occupied as a homestead by said plaintiff.” Defendant gave notice:

“That the title to lands will come in question, and that, before the committing of the said supposed acts complained of in the plaintiff’s declaration, the village of Dundee had purchased a strip of land on lot 12 for a highway, and that whatever of the acts of the defendant complained of by the plaintiff were committed under and . by the authority of said village.”

Upon the trial in the circuit court,-plaintiff disclaimed all interest in lot 12.

The plat was recorded in'1869. A section of said plat, excepting the dotted lines and the words “Proposed Street,” and omitting figures denoting distances, is as follows:

The land in question is the northerly portion of the proposed street. The dotted lines in lots 5, 6, 8, and 10 represent the lines of actual occupancy of lots 5, 6, and 8. Pusey conveyed lot 8 to one Snyder in 1870, and, within a year or two afterwards, conveyed lot 10 to one Collins. Snyder testified that he bought lot 8 22 years ago ; that Pusey at that time showed stakes on the north and south lines of his lot; that he then planted cherry trees upon the lines indicated by the stakes; that the lines so indicated are the dotted lines upon the plat, and" that he occupied the lot between those lines for four years. Plaintiff offered other testimony tending to show that Collins, who then owned the land, some 21 or 22 years ago built a board fence on the line contended for by plaintiff herein; that the said fence was built with reference to a survey made at that time by one Bartlett, a‘nd on a line with stakes then standing; that the fence was maintained for 10 or 12 years; that the posts of said fence marked said line when plaintiff purchased, in 1885; that the west post of said fence is still standing; that, soon after said fence was built, a row of cherry trees was planted on a line about three feet north of said fence; that some of said trees were standing alt the date of the trespass; and tlia,t lot 10 had been continuously occupied to the line of said fence since said fence was built. It further appeared that Tecumseh street was an old highway, originally four rods in width; that the fence along the northerly line of the land here platted had encroached upon said highway, and, when this plat was made, stood upon the line indicated by the dotted line; and that a stone stake, referred to in said plat, stood in said line at the west line of South street.

Defendant insists that the plat must control the description given in the declaration; that what plaintiff’s evidence tends to show is that he has by adverse possession acquired title to a portion of lot 12, and under his declaration and disclaimer he cannot recover, in view of the rule in Twogood v. Hoyt, 42 Mich. 609, 613. It clearly appears, however, that the north line of the plat was not the old fence line in Tecumseh street, but the actual southern boundary of the highway; that the removal of that fence was contemplated; and it is evident that the measurements made by Bartlett were from the north line of the plat. The lots were sold from north to south. Pusey, as lots 8 and 10 were sold, assisted in locating the boundaries. He, as each was located, owned the lots south of the boundaries so fixed. The question in the present case is, what is the southern boundary of lot No. 10? and that is to he determined from the actual establishment of that line upon the ground, agreed upon by the adjacent proprietors, and long acquiesced in, rather than from a recent survey, dependent upon a different construction of the plat. In Twogood v. Hoyt, supra, the court say:

‘‘The evidence offered upon this point would, however, be admissible as tending to show the location of the lands described in the declaration.”

In Diehl v. Zanger, 39 Mich. 601, it was held that a resurvey, made after the monuments of the original survey have disappeared, is for the purpose of determining where they were, and not where they ought to have been; that a long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the disappearance of original monuments; and that long practical acquiescence in a boundary between the parties concerned may constitute such an agreement on it as to be conclusive, even if it had been erroneously located. In Flynn v. Glenny, 51 Mich. 580, it was held that resurveys cannot be allowed to unsettle the lines of town lots after the lot owners have established such lines in accordance with stakes found planted, and in reliance on which they have purchased. The rule is well settled in this State that when parties by mutual agreement, and for that express purpose, meet and fix a boundary line, and thereafter acquiesce in- the line so established, such line will be considered the true line, although the period of acquiescence fall short of the time fixed by the statute of limitations for gaining title by adverse possession. Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Mich. 332; Stewart v. Carleton, 31 Mich. 270; Burns v. Martin, 45 Mich. 22; Jones v. Pashby, 67 Mich. 459; Wilmarth v. Woodcock, 66 Mich. 331.

A number of assignments of error are predicated upon the theory that there was no testimony tending to show that Bartlett, ever made a survey with reference to determining the location of lot 10, or that Collins ever built a fence on the line of such survey. The witness La Longe testified that some 21 or 22 years ago Collins built a fence on the south side of lot 10, and.' that the fence was built with reference to Bartlett’s survey, made ait that time, and in line with stakes set. The competency of the witness does not seem to 'have been questioned. Another witness testified to the existence of slakes on the north line of lot 10.

Defendant moved for a new trial on the ground of newly-discovered evidence. The court denied the motion, and it is claimed that therein the court abused its discretion. The testimony suggested by the affidavits is principally cumulative. It was not claimed that Collins procured the Bartlett survey; oh the contrary, the testimony tended to show that the survey had been made before Snyder bought. Collins says in his affidavit thal in building the fence he was guided by stakes that he found standing. The testimony suggested is that of former owners of lot 10. We discover no abuse of discretion in the denial of the motion.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    TUDHOPE v. AVERY.
    Guardian and Ward — Accounting.
    A guardian who has kept no account of the expense of clothing and maintaining his ward, not having been called upon by the probate court to render annual accounts, may nevertheless be allowed a reasonable' sum for such expenditures, if acting in good faith.
    Appeal from St. Clair; Vance, J.
    Submitted June 13, 1895.
    Decided July 2, 1895.

      Bill by Nettie I. Tudliope against Lewis Potts, as surety upon the bond of complainant’s deceased guardian, for an accounting in the matter of the guardianship. Defendant died pending a hearing, and the cause was revived in the name of his administrator, Joseph W. Avery. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      W. M. Cline, for complainant.

      A. R. Avery and J. W. Avery, for defendant.
   Grant, J.

After the decision in Tudhope v. Potts, 91 Mich. 490, in which we held that complainant could not maintain a suit at law against the surety until an accounting was had before a proper tribunal, she instituted this suit in equity for such accounting. The case was heard in open court, and decree entered that the guardian received $775, for which she was bound to account; that the expense of clothing and maintenance of her ward was $75 per year, of which one-third was furnished by the ward’s grandmother and two-thirds by the guardian; that the guardian was entitled to credit at the rate of $50 per year for such expense; that annual rests be made, charging-interest at 7 per cent, per annum until the guardian’s death in 1886, and 4 per cent, after that, on account of the benefit accruing to the ward from the occupation of the premises; that she had received $542.90 from the estate of her guardian; that upon this basis the entire trust fund was exhausted, the complainant in debt to her guardian’s estate, and that therefore her bill be dismissed.

We think the decree is fully justified by the proofs, which it would be profitless to state in this opinion. This is one of those cases where the guardian kept, no account, and -was not called upon by the probate court, as she should have been, to render annual accounts. But the guardian acted in good faith, and $50 per year was a just and reasonable allowance.

Decree affirmed, with costs.

The other Justices concurred.


author: Long, J.

text:
    GLOBE CASKET MANUFACTURING CO. v. WOLCOTT.
    1. Fraudulent Conveyances — Bill of Sale as Security — Eights of Creditors.
    K. executed a bill of sale of his stock in trade to B. to secure him against loss on indorsements, with the understanding that B. should conduct the business until sufficient should be realized to satisfy the indebtedness upon which he was liable, and should then turn the stock over to K., orto the one then entitled thereto. B. having died, his administrator continued the business in the usual way for a time, and then gave a bill of sale of all his right, title, and interest in the stock to W., another creditor of K., in consideration of the payment by W. of the obligations upon which B. wás liable and of the debts incurred in the conduct of the business. Held, that if the transfer to W. was intended to pass an absolute title, and the consideration paid was a fair one, other creditors of K. could maintain no right to the property, as such a sale was authorized under the bill of sale to B.
    B. Garnishment — Costs.
    The “costs and charges” to which a garnishee is entitled by the terms of 2 How. Stat. § 8098, upon his discharge, are such as may be fixed in the circuit court upon motion.
    Error to Lenawee; Lane, J.
    Submitted June 14, 1895.
    Decided July 2, 1895.
    Garnishment proceeding® by the Globe Casket Manufacturing Company against Isaac C. Wolcott, as garnishee of John S. Kinney. From a judgment for the garnishee defendant, plaintiff brings error.
    Affirmed.

      James W. Wightman and Wood & Bird, for appellant.

      Walter C. Burridge and Salslmry & O’Mealey, for appellee.
   Long, J.

On March 17, 1898, the Globe Casket Manufacturing Company began suit against John S. Kinney to recover $323 due it from him for goods sold and delivered. Simultaneously with the beginning of this suit, a garnishee suit was begun against Isaac C. Wolcott, the defendant herein, the plaintiff claiming that Wolcott had money and effects in liis hands belonging to Kinney.

Plaintiff’s claim is that, for some years prior to the year 1893, John S. Kinney had been engaged in the furniture and undertaking business in the village of Tecumseh, and had become indebted to a number of persons, among whom was the plaintiff. Mr. Kinney was taken ill in the latter part of the year 1892, and at that time made a bill of sale of his entire stock and book accounts to William Bresie, his brother-in-law, who had indorsed his paper to a considerable amount, to secure him against loss in the event of Kinney’s death. The understanding was, at the time the bill of sale was executed, that Mr. Bresie should take charge of the stock and conduct the business until he could realize enough out' of it to satisfy the indebtedness upon which he was liable, at which time he should turn the stock over to Mr. Kinney, or to whoever should be entitled to it when that time arrived. In pursuance of this agreement, Mr. Bresie took charge of the business, and conducted it only a few months, when he died. Then his son and administrator conducted the business for a time, but afterwards turned the entire stock and book accounts over to Wolcott, the defendant, who was induced to take hold of it by reason of his having a note against Mr. Kinney for $275. Bresie, as administrator, gave Wolcott a bill of sale of all his right, title, and interest in the stock and book accounts, and Wolcott gave him in return a bond to pay certain indebtedness, amounting to $586, that the administrator was liable for. This was the only consideration. Then Wolcott took charge of the stock, and conducted the business until he had realized enough out of the stock to- pay the $586 which he had assumed and his own note of $275, at which time this garnishee process was served upon him. He disclosed that he had no money or effects in his hands .belonging to Mr. Kinney. He was then cited to appear before the judge for examination, which examination was had. Judgment in the principal suit was taken against John S. Kinney by default for $323, and a judgment for costs, taxed at $34.

Plaintiff’s contention is that the title to this property never left Mr. Kinney; that Mr. Bresie simply had security on it, and that Mr. Wolcott got just the right that Mr. Bresie had, and no.more; and that when the claims of $586, which Mr. Wolcott had assumed, and his own note for $275, were paid, the balance belonged to Mr. Kinney, or to his creditors. The defense in the trial court was that it was an absolute sale of the property from Bresie’s administrator to Wolcott, and that it did not matter if there were more than enough to pay the accounts Wolcott had assumed and his own note; that that was an advantageous bargain for Wolcott, and he was not concerned with the other creditors of Kinney; and that he had a lawful right to whatever balance there might be over and above his claims. The defendant claimed thal, after William Bresie, Jr., took control of the stock, ho continued the business, bought new goods, and contracted new obligations, as though the business had belonged to his father in his lifetime; that when he sold out the business to Wolcott he took from Wolcott a bond in the sum of $1,000 to protect the Bresie estate, as well as himself individually, from all indebtedness incurred by the estate or the administrator in -such business; that upon the execution of the bill of sale Mr. Wolcott took possession of the stock, claiming it as his own, paid the store rent, devoted his time and energies to the business, paid the expenses, and by good management realized enough from the business to pay his own claim and the Bresie debts; that there were still some disputed claims against the Bresie estate for which he is liable; that Wolcott bought the property at a fair sale, giving a fair consideration for it, and that it was to him an absolute sale.

The principal contention arises over the refusal of the court to give several requests of plaintiff to charge, and the charge as given. It is unnecessary to set out specifically the various requests to charge. The claim made thereunder may be reduced to this: That the bill of sale from Kinney to Bresie was a mere security to enable Bresie to get his pay for his claims and indorsements for Kinney, and when that was effected the balance was to be turned back to Kinney; that the bill of sale from Bresie to Wolcott was also given as security, and did not pass an absolute title; that under the bill of sale from Bresie to Wolcott the law would regard the title as still in Mr. Kinney, subject to whatever liens Bresie had, and that Wolcott would stand in the position of trustee to Kinney, and therefore the plaintiff would be entitled to recover whatever - funds might be found in Wolcott’s hands after paying his own debt and the debts of Bresie. The court below regarded the case as one for the jury, and refused the requests. He charged the jury, substantially, that if the sale from Bresie to Wolcott was a fair one the plaintiff could not recover. By some of the requests it was also claimed that the stock was worth much more than the amount paid. This question was fairly submitted to the jury.

It appears that the bill of sale from Bresie to Wolcott was absolute in form, conveying all the right, title, and interest of Bresie therein. It is unnecessary to set out ihe testimony showing the arrangements between the parties. It is sufficient to say that Wolcott claims to have regarded the sale as absolute, and throughout acted upon the theory that he was the owner. If he paid a fair consideration for the goods, the creditors had no right therein, as Bresie had the undoubted right, under the circumstances, to make the sale. The whole question was one for the jury, and, we think, fairly submitted.

The judgment is affirmed.

Some question is raised by the counsel for the garnishee in reference to costs which a garnishee may recover in such cases under the provisions of section 8098 of Howell’s Statutes. We think that under this statute the “costs and charges” referred to must be such as may be fixed in the circuit upon motion there. The garnishee will recover the usual costs in this court.

The other Justices concurred.


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    TANNER v. PAGE.
    1. Bill of Particulars — Sufficiency.
    A bill of particulars describing generally the character of plaintiff’s claim is sufficient, if no demand is made for a more specific bill. So held where, in an action for moneys bad and received, the bill set forth a claim upon “ divers notes, accounts, contracts, and other evidences of indebtedness placed in the hands of defendant for collection.”
    2. Secondary Evidence — Contents of Writing.
    Parol evidence of the contents of a written instrument is inadmissible upon testimony merely tracing the writing into the possession of a third party (e. g., an insurance adjuster), and failing to disclose any further inquiry.
    3. Written Contract — Parol Evidence — Reasonable Compensation.
    Where a written agreement provides for the payment of a “reasonable amount” for making certain collections, evidence that one of the parties, at the time of the execution of the writing, suggested that a specified percentage be inserted in lieu of such provision, is inadmissible upon the question of reasonable compensation.
    4. Evidence — Motive—Competency oe Witness.
    A witness cannot testify as to the reason inducing a person to flee the country without some preliminary showing of his means of knowledge.
    5. Sale — Goods in Transit-Duty as to Payment.
    Whether, as between the parties to the sale of a stock of goods, the purchaser should pay for goods in transit at the time of the sale, or whether a claim therefor is within the scope of an arrangement authorizing him to pay the seller’s “creditors” from moneys in his hands belonging to the seller, isa question for the jury, in the absence of a showing that the goods were included in the bill of sale.
    6 Money Had and Received — Trust Funds.
    One who has collected accounts assigned to him under an agreement that he will pay the proceeds, less a reasonable collection fee, to the creditors of the assignor “ or to ” a third party, is liable to such party, after having discharged the indebtedness, in an action for money had and received, even though a trust may have been created by the arrangement.
    7. Sale — Authority to Pay Creditors of Seller — Claim for Taxes.
    Authority conferred upon the purchaser of a stock of goods to pay the “creditors” of the seller from funds belonging to him justifies the payment of taxes assessed upon the stock prior to the sale.
    8. Costs in Supreme Court — Prolix Record and Brief.
    Costs for printing are disallowed in part because of the unnecessary length of the record and brief.
    Error to Ionia; Daboll, J., presiding.
    Submitted June 14, 1895.
    Decided July 2, 1895.

      Assumpsit by Nellie Tanner against Herbert L. Page for money had and received. The bill of particulars set •forth plaintiff’s demand as consisting of “divers notes, accounts, contracts, moneys, and all other evidences of indebtedness placed in the hands of defendant by M. J. Tanner for collection, and have been collected by defendant, or are still in defendant’s possession uncollected, which were so placed in defendant’s hands by M. J. Tanner for the use and benefit of plaintiff, to the amount of, to-wit, $2,000.” There was a judgment for plaintiff, and defendant brings error.
    Modified and affirmed.

      H. L. Van Benschoten and R. A. Hawley, for appellant:
    Diligent search by defendant having failed to produce the bill of sale, parol evidence of its contents was admissible under the rule of Rash v. Whitney, 4 Mich. 494, as the instrument did not pass from the legal custody of defendant by its submission to the insurance adjuster.
    Evidence of the conversation between the parties at the time of the execution of the receipt by defendant was proper to show their understanding as. to what constituted a reasonable collection fee. Preston National Bank v. Purifier Co., 102 Mich. 462.
    Defendant became a trustee of the fund, and could not be sued by the cestui que trust in an action at law. Lyle v. Burke, 40 Mich. 499; McBride v. McIntyre, 91 Mich. 406; Linneman v. Moross Estate, 98 Mich. 178; Johnson v. Johnson, 120 Mass. 465; Davis v. Coburn, 128 Mass. 377; Upham v. Draper, 157 Mass. 292; Halle v. Bank, 140 Ill. 413.

      McGarry & Nichols (M. A. Nichols, of counsel), for appellee:
    A sufficient foundation was not laid for the introduction of parol proof of the contents of the bill of sale. Hogsett v. Ellis, 17 Mich. 374; Darrow v. Pierce, 91 Mich. 67.
    The court properly excluded evidence of the conversation leading up to the execution of the receipt. Savercool v. Farwell, 17 Mich. 308; Martin v. Hamlin, 18 Mich. 354; Cline v. Hubbard, 31 Mich. 237; Skeels v. Starret, 57 Mich. 350; Richardson v. Hardwick, 106 U. S. 252.
    Defendant was merely an agent for the collection of the accounts (Crissman v. Crissman, 23 Mich. 217); bui, even if he became a trustee, the action is properly planted, since nothing remains for him to do but to pay over the money (Catlin v. Birchard, 13 Mich. 110; Patton v. Chamberlain, 44 Mich. 5; Ritely v. Ritely, 85 Mich. 227; Collar v. Collar, 75 Mich. 414, 86 Mich. 507).
    Shippers of goods in transit at the time of the sale were not creditors of Tanner within the terms of the receipt. Lentz v. Railway Co., 53 Mich. 444; Kingman v. Denison, 84 Mich. 608.
   McGrath, C. J.

Plaintiff’s husband was in December, 1892, in the hardware business at Belding. For some unexplained reason he desired to close out his business and get away. He transferred his stock of goods to the defendant in consideration of a sum of money which was paid to him. The controversy here arises respecting certain accounts receivable, connected with the business, which were turned over to defendant. A formal bill of sale was made to defendant of these accounts. At the same time defendant signed and gave back to M. J. Tanner the following:

“Received of M. J. Tanner book accounts and notes, for which I agree to pay to his creditors as fast as, received, or to his wife, except a reasonable amount for collection.”

This suit was commenced in January, 1894, to recover I he balance remaining in defendant’s hands after the payment of the creditors.

The first contention is that the court should have excluded all testimony because of the insufficiency of plaintiff’s bill of particulars. The bill described, generally, the character of plaintiff’s claim. It referred 10 accounts left with defendant for collection. If mot sufficiently full, defendant should have called for a more specific bill. Freehling v. Ketchum, 39 Mich. 299; Township of Buckeye v. Clark, 90 Mich. 432.

It is next urged that the court erred in rejecting parol evidence on the part of defendant of the contents of the bill of sale of the stock of goods. The testimony traced the bill of sale into the hands of am insurance adjuster, but failed to disclose any further inquiry, and was clearly insufficient to warrant the introduction of parol proof of the contents of the written instrument.

As bearing upon what would be a reasonable compensation for the collections, defendant offered to show that at the time of the transfer the assignor suggested that 10 per cent, be inserted in lieu of the provision made, but the court rejected the testimony. There was no error in this ruling. Stange v. Wilson, 17 Mich. 342; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 150.

Among the items of indebtedness alleged by defendant to be yet outstanding was a note of $100, given to 'one Pope. Plaintiff offered proof tending to show that M. J. Tanner had, on the day before he left, drawn a check in Pope’s favor for the amount of this note; that Pope had presented the check at the bank, and received the money upon it; and that the amount had been entered upon the books by M. J. Tanner as a payment of the note. The defendant sought to show that the sum so paid was to apply upon a claim for injuries to Pope’s son, caused by Tanner. One Ward was called by plaintiff to prove the payment. Upon cross-examination Ward was asked if he did not know that it was on account of this boy that Tanner fled the country. The court properly rejected the testimony. No proper foundation had been laid for the introduction of the testimony. In the absence of some means of knowing the fact, the answer would be but an expression of an opinion or a suspicion.

Respecting the goods in transit at the time of the transfer, there was no proof that the bill of sale or the consideration therefor covered them. Plaintiff's testimony tended to show defendant’s admission that they were not included, and that the amounts paid therefor were not to be charged up against the collections. The question was one for the jury, and the court properly left it to them. The instruction given upon the subject fully protected the defendant.

Defendant contends that, under the circumstances, a trust was created, and that plaintiff’s remedy is in equity, and not at law. Conceding the existence of the relation, the trust was executed with the exception of payment over. The accounts had all been collected and the indebtedness discharged. It was held in Catlin v. Birchard, 13 Mich. 110, that, when a person assents to act as trustee in receiving money for the benefit of another, he becomes liable to am action for money had and received, if he fails to pay it over according to his duty. See, also, Collar v. Collar, 86 Mich. 507.

Defendant paid a tax of $75.64 which was assessed upon the stock of goods, and the court held that the State was not a creditor, within the meaning of the term employed in the receipt given by defendant. In this, we think, the court erred. It was clearly the intention of M. J. Tanner to provide for the payment of his debts. This was a personal claim for which a suit against him would lie. The amount will be deducted from the judgment; otherwise, the judgment will be affirmed, with costs to defendant.

Less, than three pages of defendant’s brief are devoted to the discussion of the question relating to the taxes, and a record of but a few pages would have been sufficient to raise that question. Defendant will be limited in the taxation of his costs for printing to 10 pages of record and 5 pages of brief.

Judgment modified and affirmed.

The other Justices concurred.


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    VIAL v. HOFEN.
    Trespass — Plea op Title — Action Founded upon Possession.
    In trespass qu. cl., a plea of title is good wliere the entry was not made under circumstances involving a breach, of the peace. Mere occupancy by an intruder in such case will not support the action.
    Error to Houghton; Hubbell, J.
    Submitted June 14, 1895.
    Decided July 2, 1895.

      Trespass guare clausum fregit by James Vial against John Hofen. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      C. A. Wright, for appellant:
    Defendant could not, by showing title in himself, justify his disturbance of plaintiff’s possession. Larue v. Russell, 26 Ind. 386; Salisbury v. Green, 17 R. I. 758; Austin v. Bailey, 37 Vt. 219; Railroad Co v. Cobb, 68 Ill. 53, 82 Ill. 183; VanAuken v. Monroe, 38 Mich. 725; Newcombe v. Irwin, 55 Mich. 620; Dolahanty v. Lucey, 101 Mich. 113; Ostrom v. Potter, 104 Mich. 115.

      Chadbourne & Rees, for appellee:
    One having the right to the possession of land cannot be held liable in trespass for a peaceable entry thereon. Mason v. Holt, 1 Allen, 45; Merriam v. Willis, 10 Allen, 118; Williston v. Morse, 10 Metc. 17; Hyatt v Wood, 4 Johns. 150; Marsh v. Bristol, 65 Mich. 378.
   Montgomery, J.

This is an action for trespass guare clausum. The evidence on the trial established beyond room for controversy the following facts: That about the 8th of June, 1894, the plaintiff entered upon the 40-acre description mentioned in his declaration, and built a house upon it (the character of which does not very dearly appear in the declaration, but it must have been hastily constructed), and, after it was habitable, moved into it with his family. The defendant held a tax deed to the land, and the land joined his main farm, upon which he lived with his family. He had .maintained a possession of the 40 acres in question for a period of a.t least 12 to 15 years before plaintiff entered upon it; had cleared a field, fenced it, taken out the stumps, sowed it to timothy, and had mowed the field for several years. After the plaintiff’s entry, and on the 12th of July, defendant entered the field referred to with his employés, cut the grass, and drew it away. For this alleged trespass suit is brought. The testimony shows that defendant never acquiesced in the attempt of plaintiff to wrest possession from Mm, but, on the contrary, brought an action in trespass for the entry which the plaintiff made upon the land, and recovered judgment against the plaintiff.

Plaintiff’s contention is that his'possession is conclusive as to his right, and that the defendant should not have been permitted to show title and previous possession in himself. The plaintiff appears not to have been content to apply the same rule to his own conduct that he now asks the court to apply to that o¡f the defendant. He did not seek to establish his right to possession by proceedings at law, but invaded the actual possession of the true owner, and now contends that this intrusion shall preclude defendant from entering his own fields to regain or maintain his possession. There is no pretense that there was am- breach of the peace committed by defendant on entering the field and cutting and removing the hay. Under the circumstances, we think, if defendant could reclaim his own without committing a breach of the peace, he cannot be held to be a trespasser. 2 Wat. Trespass, § 1194; 2 Greenl. Ev. § 620; 1 Hil. Torts, 586;-26 Am. & Eng. Enc. Law, 600; Barnes v. Dean, 5 Watts, 543. At the common law the plea of Uberumtenementum was always a good plea in this form of action, and, if the defendant was able to show title in himself, the defense prevailed. It is unnecessary to determine whether such a plea should prevail under the forcible entry and detainer act, or in an action for trespass where the facts show a forcible entry. See Hoffman v. Harrington, 22 Mich. 52. But, in the absence of force, — and by this is not meant simply the force used upon the property (Shaw v. Hoffman, 25 Mich. 169), — the plea is good, as at common law. The defendant in this case interposed a plea of title, and at the conclusion of the evidence the circuit judge directed a verdict for the defendant. This action was fully justified.

The judgment will be affirmed, with costs.

The other Justices concurred.


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    BOWMAN v. GORK.

      1. Specific Performance — Deposit of Deeds in Escrow.
    Where, pursuant to an agreement for the exchange of lands, deeds have been executed and deposited in escrow, equity will enforce a specific performance of the contract at the suit of a party who has complied with the conditions upon which the deeds were deposited.
    2. Appeal — Rights of Party not Appealing.
    A party who has not appealed from a decree in his favor will not be afforded additional relief upon an appeal taken by the other party.
    Appeal from Kent; Grove, J.
    Submitted June 14, 1895.
    Decided July 2, 1895.
    Bill by Mary A. Bowman against Frederick Gork and others for the specific performance of a contract for the exchange of lands. From a decree for complainant, defendants appeal.
    Affirmed.

      Wolcott & Ward, for complainant.

      Lombard Bros., for defendants.
   Montgomery, J.

The bill in this case is filed to enforce the specific performance of a contract-for the exchange of a farm in Allegan county for a house and lot in the city of Grand Rapids. Deeds were executed and deposited in escrow, and the conditions upon which they were deposited have been performed by the complainant, and the relations of the parties so changed that equity requires the enforcement of the contract, unless the reasons urged by the defendants shall be allowed to prevail. See 6 Am. & Eng. Enc. Law, 867, 870.

The defendants set up in their answer that, in the preliminary negotiations leading up to the contract, the complainant was guilty of fraud, the claim being that complainant misrepresented the amount of tillable land on the farm. No good purpose would be served by setting-out the testimony at length. A thorough examination of the record convinces us that the misrepresentations are not established by a preponderance of the evidence. The circuit judge, who had the advantage of seeing the witnesses and noting their appearance on the stand, reached this conclusion, and we think it fully justified.

We are asked to decree an accounting for the rental value of the premises occupied by the defendants, but the decree below contained no such provision, and complainant has not appealed.

The decree will be affirmed, with costs.

The other Justices concurred.


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    COOK v. COOK.
    Log-Lien Suit — Tax Title — Right to Test Validity.
    In proceedings under the log-lien law (3 How. Stat. § 8437a et seq.) against one claiming under a tix title, the real owner of the premises may intervene and attack the validity of such title, where the possession of the holder thereof was such only as was incident to cutting and removing the timber from the lands. Such a case is not within the rule precluding the litigation of title to realty in a personal action.
    Error to Ogemaw; Sharpe, J.
    Submitted June 18, 1895.
    Decided July 2, 1895.
    Log-lien proceedings (two cases) by Adam Oook and John Cook, respectively, against George Oook. Henry Gamble and William O. Weber intervened. From judgments for plaintiffs, the interveners bring error.
    Reversed.

      O. E. M’Cutcheon and F. L. Snodgrass, for appellants.

      W. A. Weeks (McDonell & Hall, of counsel), for appellees.
   McGrath, C. J.

Plaintiffs in these cases, as employés of one George Cook, claim liens upon certain forest products taken from the S. W. i of section 9, township 21 N., range 2 E. George Cook held a tax title. Defendants "Weber and Gamble, claiming, as owners of the land, to own the products, make proof of title to the land, and offer to show that the tax title is invalid. The court excluded the testimony.

This was error. The oinly possession here shown was one incident to the cutting of the timber. Defendant Cook went upon the land in November, erected lumber camps thereón, and immediately commenced cutting and removing the timber from the land. He says that he entered for the purpose of doing the lumbering in question. He did nothing but remove the timber. Such possession does not bring the case within the rule contended for by counsel for plaintiffs.

In Busch v. Nester, 70 Mich. 531, Mr. Justice Champian, speaking for the court, says:

“I do not concede the doctrine, however, that where the proof shows, as in this case, the pine standing upon the land is the principal, and very likely the only, value of consequence, a holder of a tax title' may light down upon the land like the locusts of Egypt, and destroy all there is of value upon it, and then depart, leaving the land denuded of all that is valuable, and turn the owner over to his tardy action of ejectment, with its three trials, and, after judgment is finally secured, to his action for mesne profits. In most cases it would be a barren remedy for barren land not worth the taxes.”

See, also, McKinnon v. Meston, 104 Mich. 642.

The judgments are reversed, and new trials ordered.

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


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    BOARD OF SUPERVISORS OF WAYNE COUNTY v. WAYNE CIRCUIT JUDGES.
    1. Board op Supervisors — Special Meeting — Notice—Proop op Se a vice — J urisdiction.
    Under a statute authorizing the calling of a special meeting of a board of supervisors by giving written notice to each member thereof, proof of service of such notice need not'be filed with the board, or spread upon the record of its proceedings, if there is no provision requiring it. , The presumption is that such a meeting was legally convened, and the burden of proving the contrary rests upon him who assails its validity.

      2. Elections — Public Improvements — Corruption op Voters.
    An election in favor of a loan for the erection of county buildings is not invalid for corruption because of the use of posters urging working men to vote therefor on the ground that it would furnish them employment.
    3. Municipal Corporations — Indebtedness—Submission to Vote op Electors.
    It is immaterial that a majority of the taxpayers of a municipality are opposed to the incurring of certain indebtedness, where the statute provides for the submission of the question to the electors, and they have declared themselves in favor of the proposition.
    4. Mandamus — Dissolution op Injunction — Public Improvements.

      Mandamus will lie to vacate a preliminary injunction restraining a board of supervisors from purchasing a site for county buildings, and from issuing bonds in payment therefor, pursuant to a vote of the electors, where the averments of the bill, conceding them to be true, are insufficient to warrant the issuance of an injunction.

      Mandamus by the board of supervisors of the county of Wayne to compel tbe circuit judges of Wayne county to vacate a preliminary injunction.
    Submitted June 18, 1895.
    Granted July 2, 1895.
    Some time during the latter part of tbe year 1891 the supervisors of Wayne county took proceedings for the purchase of a site for, and the erection of, a courthouse and other buildings. The question of bonding the county for $1,500,000 for that purpose was submitted to the electors, and carried by a vote of 13,308 to 3,442. That action was restrained by the court at the instance of the attorney general by decree dated December 31, 1804, for reasons unnecessary to mention.
    An act was passed by the present legislature, and approved February 20th last, authorizing the supervisors of that county to hold a special meeting in February or March, 1895, to consider and determine the necessity of purchasing a site for buildings for a courthouse and county offices, for a jail and sheriff’s residence, and for other needful purposes for said county, and of erecting suitable buildings for such purposes, and to provide for submitting the question to the electors of raising by loan upon the bonds of said county such sums as they might deem necessary therefor (Act No. 295, Local Acts 1895). Section 2 of the act provided that such special meeting-should be 'held upon a request therefor in writing, signed by at least one-third of the supervisors of the county, and specifying the time and place of such meeting. Upon receiving such request, the county clerk was required to give immediate notice of such meeting in writing “to each of the supervisors, by causing the same to be delivered to such supervisor personally, or by leaving the same at the place of residence of such supervisor, or by depositing the same in the mails, postage prepaid, addressed to such supervisor at his place of residence, al least six days before the time of such meeting.”
    The requisite number of supervisors — 28—signed and ' presented the call to the county clerk pursuant to this law for a special meeting to be held March 4th. The clerk immediately gave notice, and served it as hereinafter stated. The board met at the time specified, 41 of the 54 supervisors being present. The proper resolution was passed determining the necessity, and submitting the question of bonding the county for $1,500,000 to purchase a site and erect buildings. The election was held, and the proposition adopted by a large majority. After the election, more than one-third of the supervisors signed and presented to the county clerk a request for a special meeting to be held May 1st. Notices were given by the clerk in the manner hereinafter set forth. Posters without any signature, printed in three different languages,— English, Polish, and German, — -were placarded in various places in the city of Detroit, reading as follows:
    “Attention, voters! Don’t forget to vote yes for a new county building. It will distribute $1,000,000 among the working men of Detroit, and give employment to a great many men.”
    At the second special meeting, the board passed the necessary resolutions preparatory to the purchase of a site and the issue of bonds. At this point the attorney general, upon the relation of certain citizens of Detroit, filed a bill in chancery to restrain this action of the board, and prevent the purchase of the site or the issue of the bonds. The respondents issued a restraining order until the final hearing of the case, whereupon the relator filed in this court its petition for a writ of mandamus to compel the vacation of that order, insisting that it is an abuse of discretion, and that the bill made no case for the interference of a court of equity.

      F. A. Baker, for relator.

      Fraser & Gates, for respondents.
   Grant, J.

(after stating the facts). Two objections are raised against the proceeding: (1) That there was no legal evidence before the board of supervisors at either of their meetings, on March, 4th or May 1st, of the service upon each supervisor of the notice of the meeting, and that, without such evidence before them, it had no jurisdiction to proceed. (2) That the election in favor of said loan was obtained and procured through and by means of the corrupt offers or inducements to laboring men through the posters.

1. It is conceded that the notices were in proper form. The regularity of the proceedings is not attacked, except the proof of service of the notices. Proof of service of notice of both meetings was made, — upon some by mail, and upon some by serving personally. It is unnecessary to determine the question whether this proof was sufficient. In response to the first call, 41 out of the 54 supervisors were present at the meeting. In response to the second call, 48 out of the 54 supervisors were present, and one of the absentees was in Europe. It was not alleged in the bill, nor was it claimed upon the argument, that the supervisors were not actually served. The statute does not require proof of the service to be filed with the board, or to be recorded upon the record of its proceedings. The presumption is that such meetings are legally called, and it is incumbent upon him who attacks the validity of the meeting to show that the notices were not in fact served. State v. Board of Commissioners, 104 Ind. 123; Stockton v. Powell, 29 Fla. 63; Brigins v. Chandler, 60 Miss. 862; Corburn v. Crittenden, 62 Miss. 125; Rutherford v. Hamilton, 97 Mo. 543; Taber v. Ferguson, 109 Ind. 227; State v. City Council of Elizabeth, 30 N. J. Law, 365.

2. It remains to consider the question of corruption of the voters. We should not feel inclined to give this serious consideration were it not for the eminent counsel who have made the charge, and who, we must assume, have argued it in good faith. It is alleged in the bill of complaint “that the public sentiment in the city of Detroit, and throughout the county of Wayne, and the wishes and desires of the taxpayers thereof, are by a very great majority opposed to the purchase of any site forany county building, or the erection by said county of any building for a courthouse and county offices.” This allegation seems somewhat strange in view of the fact that the electors have twice within six months declared by very large majorities in favor thereof. There is nothing to show how many of the electors were taxpayers and bow many were non-taxpayers. The wishes and desires of the non-taxpayers are just as valid in the eye of the law as those of the taxpayers. It may be unjust and unwise to permit non-taxpayers to determine how much and for what the property owners of a municipality may be taxed. The people, however, have by statute law settled iliai nuutcr, and it is no concern of the courts whether the sentiment of the taxpayers is for or against it. It is the majority of the electors who,, under the statute, are entitled to decide the question.

Electors have not yet risen to that high state of morals that they will consider the public good and public necessity alone. In all elections electors a.re appealed to, both oin the hustings and in the press, to vote for measures which will conduce to their own private interest. The laborer desiring work had the same right to vote for this proposition because he thought or was told that he would obtain work, as the property owners near any proposed site would have to vote for it because they believed the improvement would enhance the value of their property. The relators named in the bill of chancery are prominent, well-known, and worthy citizens of the city of Detroit. It is alleged in the answer that they and many others who own property in the vicinity of the present city hall are against the building of separate county buildings, and in favor of tearing down the present city hall, and erecting on the present site a building for the joint use of the city and the county, under arrangements to be agreed upon between the two, because they believe that their property in that vicinity would be largely enhanced in value. If such a proposition were submitted to the electors, and the property owners in that vicinity should vote for the proposition because it would put money into their pockets, and should in the press or in public meetings, or in private solicitations, urge electors to vote for it for that reason, would they consider themselves to have been guilty of corrupting the voters? If the principle insisted upon is correct, there is probably not a single county building, or the removal of any county seat, which could not have been enjoined on the ground of the corruption of voters. We are cited to no authorities, nor do we believe that one can be found, holding that votes cast from such motives are in law corrupt and venal. It is unnecessary to pursue the subject further.

We have applied the rule urged in behalf of respondents by their learned counsel that “this court ought to go no further than to look into the information to see if it could, under' any circumstances, support an injunction.” If it could be admitted that all the averments in the bill in chancery in this regard were true, it would not authorize a court of equity to enjoin the proceedings. It would, moreover, be difficult to secure the construction of any necessary public improvement, dependent upon the vote of the electors, if courts of equity might restrain for such reasons. We think that important public improvements should not be compelled to await the “law’s delay” consequent upon the final determination of a long chancery suit, and that the writ of mandamus is proper, under the circumstances, to obtain a speedy determination.

We think there was no ground for issuing the injunction, and the writ must issue ordering its dissolution.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.


text:
    BAY CITY BREWING CO. v. McDONELL.
    Liquor Tax — Payment in Installments — Garnishment.
    While the payment of a liquor tax in installments is unauthorized (3 How. Stat. § 2283e7), a county treasurer to whom such payments have been voluntarily made, and who has turned the same into the treasury, cannot be garnished at the suit of a creditor of the payor, since the latter could not himself maintain an action to recover the moneys.
    Error to Arenac; Sharpe, J.
    Submitted June 6, 1895.
    Decided July 2, 1895.
    Garnishment proceedings by the Bay City Brewing-Company against Angus McDonell, as garnishee of Robert Donnelly. From a judgment for the garnishee defendant, plaintiff brings error.
    Affirmed.

      Frank S. Pratt, for appellant,

      Sanford E. Hayes (M. L. Courtright, of counsel), for appellee.
   Grant, J.

The principal defendant, Robert Donnelly, kept a saloon for the sale of intoxicating liquors in the township of Deep River, Arenac county, in 1893. His -tax was, of course, due May 1st, without the payment of which he was engaged in an illegal business. Mr. McDonell, the county treasurer, testified that it was customary in that county to permit saloon keepers to pay the tax in installments; that he himself had kept a saloon, and paid in that manner. It thus appears that the officers of that county permitted saloon keepers, including Donnelly, to carry on that business contrary to the express provisions of the law. Donnelly made four payments, aggregating $200; the last one being made August 30th. They were received into the treasury as liquor taxes, and before the garnishee summons was served the treasurer had paid out this money according to the provisions of the law. Meanwhile Donnelly became indebted to the plaintiff, who sued Mm, and garnished the county treasurer.

It is claimed by the plaintiff that these payments in installments were illegal, and that, therefore, the treasurer did not hold the money so paid in his official capacity. The plaintiff has no greater right to this money than has Donnelly. Donnelly cannot sue to recover it. He paid it voluntarily into the treasury. He did not. deposit it with the treasurer or his deputy, to be kept until the full sum was paid. Being voluntary, and having been deposited in accordance with the understanding of Donnelly, both he and his creditors are bound by such voluntary payment. Curry v. Township of Tawas, 81 Mich. 355.

Judgment affirmed.

The other Justices concurred.


text:
    SCHRADER v. CITY OF PORT HURON.
    Defective Cross-walk — Uncovered Gutter — Liability of City.
    A cross-walk was constructed on a level with the curb, and to within 7 to 12 inches thereof, leaving a gutter from 5 to 7 inches deep, with abrupt, vertical sides, between the curb- and the walk. Plank covers were provided for this gutter and for like openings throughout the city, of which there were a number; but these covers were frequently removed' for the purpose of cleaning the gutters, and in some instances were not replaced. Held, in an action for personal injuries-sustained by stepping into the open gutter while attempting to cross the street, that it was for the jury to determine whether the cross-walk was reasonably safe for travel.
    Error to St. Clair; Eldredge, J., presiding.
    Submitted June 19, 1895.
    Decided July 2, 1895.

      Case by Sylvesta Mudge Schrader against the city of Port Huron for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      P. E. Phillips, for appellant.

      Chadwick & McIlwain, for appellee.
   McGrath, C. J.

Plaintiff, in attempting to cross a street, stepped into a gutter or space between the curb and the cross-walk, and fell, sustaining injuries, for which she had a verdict. The street was paved with wood. To form a cross-walk, the pavement had been ridged up between the center of the street and this gutter, so that the surface of the cross-walk at this point was on a level with the curb. A gutter was thus formed from 7 to 12 inches wide, and from 5 to 7 inches in depth, with abrupt, vertical sides. Covers consisting of 2-inch planks supported by iron straps had been provided. These gutters often became clogged, and the covers were frequently taken off so that they might be cleaned. The testimony tended to show that there were a number of these contrivances in the city; that the covers were on and off; that they would be taken off when the gutters became clogged, and, in some instances, would not be replaced. The superintendent of public works at the time of the injury testified that the intention was to have all these sluiceways covered; that “occasionally there would be one that would not be covered until we could get to it;” that as a general thing some were on, and some were not.

“I never heard of any action being taken for a change in the general plan of the city, by which it was decided to leave these sluiceways uncovered. It was not necessary to leave them open. The only need, where I would consider there was any excuse for them being left open, would be when they got clogged, with ice and dirt, and that is the only time when I would consider it a necessity. This would be only a temporary necessity.”

Defendant's sole contention is that these gutters are a part of the surface drainage system of the city; that the defect is in the plan, as distinguished from the mode of execution; and that under City of Lansing v. Toolan, 37 Mich. 152, and similar cases, the municipality is not liable. The statute has, however, in a number of cases since decided, been held to apply to flagrant defects in the method of construction, as well as to neglect in repair. Malloy v. Township of Walker, 77 Mich. 448; 462; Carver v. Plank-Road Co., 61 Mich. 584; Sebert v. City of Alpena, 78 Mich. 165.

Under the circumstances of this case, taking into consideration the character of this sluiceway, its width and depth, and the fact that there were a number of such gutters on this very street, which were covered at times, and at other times were uncovered, it cannot be said, as a matter of law, that this cross-walk was reasonably safe for travel. The question was properly left to the jury. A vertical curb at the edge of the roadway, rendering a step down or up necessary, may be essential and entirely proper. But here was a sluiceway which the superintendent of public works says was 7 inches deep, with vertical sides, crossing the line of travel, the very plan of which contemplated that it should be covered; and, practically, the contention is that the covers were so frequently taken off by the employés of the city, to facilitate the cleaning of the gutters, and carelessly Allowed to remain off, that such practice has the force and effect of legislative action.

The judgment is affirmed.

The other Justices concurred.


author: McGrath. C. J.

text:
    COMSTOCK v. SHARP.
    Basement — Right to Close Street — Conveyance by Abutting Owner.
    Owners of land abutting on opposite sides of a street, the fee of which is vested in them, have, as between themselves, the power of disposition over the estate comprised therein; and, therefore, where one has conveyed to the other all of his interest in the land occupied by the street, with consent that the same may be closed, which deed is of record, a subsequent conveyance by such grantor of his adjacent premises will carry no interest in the street, and his grantee cannot restrain the closing of the same.
    Appeal from Jackson; Peck, J.
    Submitted April 3, 1895.
    Decided July 9, 1895.
    Bill by Hattie E. Comstock against John C. Sharp to compel the removal of an obstruction from a street. From a decree dismissing the bill, complainant appeals
    A firmed.

      Barkworth & Blair, for complainant:
    If the owner of land exhibits a plat thereof, on which a street, is defined, and sells lots abutting on such streei, with clear reference to the plat, the purchasers of such lots have a right to insist that such street shall forever remain open to the public. Earll v. Chicago 136 Ill. 277; Smith v. Lock, 18 Mich. 56; Railroad Co. v. Hrisel. 47 Mich. 393; Diamond Match Co. v. Ontonagon, 72 Mich. 259; Ruddiman v. Taylor, 95 Mich. 547; Horton v. Williams, 99 Mich. 423.
    Every lot owner has an interest in the adjacent street in the nature of an easement appurtenant to and running with the land (Railroad Co. v. Heisel, 38 Mich. 71; Horton v. Williams, 99 Mich. 423); and such an easement cannot be assigned separately from the dominant tenement (6 Am. & Eng. Enc Law, 142; 2 Washb. Real Prop. [5th Ed.] 283; 2 Wait, Act. & Def. 658; French v. Marstin, 24 N. H. 440; Davenport v. Lamson, 21 Pick. 72; Shroder v. Brenneman,
      23 Pa. St. 348; Achroyd v. Smith, 10 C. B. 164; Garrison v. Rudd, 19 Ill. 558; Hills v. Miller, 3 Paige, 254; Story v. Railroad Co., 90 N. Y. 122; Lathrop v. Elsner, 93 Mich. 599; Walz v. Walz, 101 Mich. 167).

      Wilson & Cobb, for defendant:
    By the deed from Jenks, defendant’s title became complete, since the owner of the dominant estate may extinguish the easement by a release to the owner of the servient tenement. 6 Am. & Eng. Enc. Law, 146, and cases cited; Washb. Easem. 516; Bell v. Todd, 51 Mich. 21; Morgan v. Mouth, 60 Mich. 238; Richards v. Railroad Co, 153 Mass. 120;
   McGrath. C. J.

Complainant is the owner of lots 5, 6, 7, 8, and 9, on the south-west corner of Fourth and Willow streets, just outside of the city of Jackson. The lots front on Willow street, and were numbered from west to east, but they had for many years been inclosed and occupied as one parcel, the dwelling thereon fronting on Fourth street.

The territory was platted and the plat recorded in 1870, by one Lathrop. It is only claimed for this plat that it was an express common-law dedication. Lathrop, in October, 1871, conveyed the land north of the center of Willow street by metes and bounds, subject to the public use of Fourth, Willow, and other streets. In July, 1873, Lathrop conveyed to one Bush the territory lying south of the center line of Willow street, excepting the lights of the public in the streets. In 1874 Bush conveyed these lots to one Babcock, she to Miller, he to Jenks, and Jenks, in May, 1884, to complainant, by lot number and reference to the plat.

Defendant, in 1883, acquired title to the land north of the center of Willow street, and to certain of the lots west of complainant’s lots. In October, 1883, Bush and -wife conveyed to defendant certain lots, and “all our right, title, and interest” in the south half of Willow street, from the west line of Fourth street to the west line of lot 5. In February, 1884, Jenlcs, complainant’s immediate grantor, conveyed to defendant the land in Willow street from Fourth street west to the west line of lot 5. The deed contained the following :

“It is understood and agreed that this deed shall not only convey all present interest of said grantor in and to the lands herein described, but all interest that might be acquired by her, or her heirs or assigns, in and to any part thereof in case of the vacation of what is marked upon said plat of Summitville as Willow street, as the owner of lots 5, 6, 7, 8, and 9, in said block 2, and consent is hereby given to the closing of said Willow street.”

A controversy arose between complainant and defendant, soon after complainant’s purchase. Defendant succeeded finally "in constructing and maintaining a fence across the east end of Willow street, and this bill is filed to compel the removal of the obstruction.

Complainant insists that the interest of an abutting owner in a street is in the nature of an easement appurtenant to the land, passing only with a conveyance of the land. The cases cited hold that the grantor of a right of way has the right to limit the grant, and that the grantee takes it subject to restrictions imposed, and cannot enlarge or abuse his privilege (Davenport v. Lamson, 21 Pick. 72; Shroder v. Brenneman, 23 Pa. St. 348); or, that a grantor, having platted and conveyed certain lots in a city, cannot afterwards appropriate the way to any use inconsistent with its use as a public street (Story v. Railroad Co., 90 N. Y. 122; Hills v. Miller, 3 Paige, 254; Watson v. Bioren, 1 Serg. & R. 227).

The right of way, in the present case, arose from the plat and the subsequent conveyances. As between the parties, the conveyance by Jenlcs and the consent to the closing of the street were a release or relinquishment of record of the right to use the street. It is unimportant,, whether Jenks was at that time the owner of the fee in the street, or whether the fee passed by the conveyance from Bush to defendant. Whatever interest Jenks had passed by the conveyance to defendant. The rights of the public or of other abutting owners are not in question, and the original grantor has parted with his interest. In such case, owners of land on opposite sides of the same street may, as between themselves, consent to the closing of the street, or anticipate its vacation, and either may convey to the other all interest in the land occupied by the street. They have, as between themselves, the disposing power over the estate. Washb. Easem. p. 26, par. 13.

The decree is affirmed, with costs to defendant.

The other Justices concurred.