author: Ostrander, J. Brooke, J.

text:
    KENNEDY v. NILES WATER SUPPLY CO.
    1. Waters and Watercourses — Lakes—Riparian Rights.
    Proprietors of the land upon the banks of a stream or a lake have a common usufructuary right to the water, as it is in a state of nature.
    2. Same — Prescription—Adverse User.
    Unless the rights of other common owners are invaded or interfered with, an excessive use by a riparian owner, however long exercised, of the rights that he holds in common with the others will not ripen into a prescriptive right, and, as in other cases, the adverse user, in order to create a permanent right, must be visible, continuous and. notorious, and must continue for the period required to secure by prescription rights in realty.

      3. Same — Prescription—Estoppel.
    Although the owners of property on the shores of a small inland lake had remained acquiescent while defendant took water from it in a twelve-inch pipe, during upwards of 30 years, they were entitled to restrain any further invasion of their riparian rights involved in defendant’s laying new pipes at greater depth, and were not estopped from enjoining the wrongful action in equity.
    Brooke, MoAlvay, and Bird, JJ., dissenting.
    Appeal from Cass; DesYoignes, J.
    Submitted November 6, 1911.
    (Docket No. 44.)
    Decided January 3, 1913.
    Bill by Richard Kennedy and others against the Niles Water Supply Company and others for an injunction restraining defendant from drawing water from Barron Lake. From a decree for complainants defendants appeal.
    Affirmed.

      M. L. Howell, for complainants.

      J. J. Van Biper and A. J. Mills, for defendants.
   Ostrander, J.

Proprietors of the land upon the banks of a stream, or a lake, have a common usufructuary right to the water as it is in a state of nature.

So long as the use made of the water by a common proprietor is the common use, an excessive use, however long continued, will not ripen into a prescriptive right, so long as other common owners are not injured thereby, or prevented, or excluded from making such use as of common right belongs to them. If a wrongful use is made of the water of a running stream by a common proprietor, as if he finally diverts the water, such use is by common consent presumed to be injurious to other common proprietors and therefore adverse. As in other cases, the adverse user, in. order to ripen into a right to use, must be visible, continuous, and notorious, and must continue for the period required to acquire rights in real property adversely to the owner. 2 Farnham on Waters and Water Rights, §§ 537-541.

Assuming for the purposes of this case (we may indulge the assumption because complainants have not appealed from the decree of the court below) that defendants have acquired the right to take water from Barron Lake, I think the proposition advanced by Mr. Justice Brooke in his opinion, namely, “that the gist of the easement lies in the quantity of the water taken and not in the particular method in which it is taken,” cannot be sustained. It was a common right of the particular riparian owners to have the lake at its natural level. The level of a lake, it is true, depends upon the quantity of water it contains; it is higher or lower as the quantity of water. But the interest of the owners of the shore, there being visible neither an inlet nor outlet, was affected by a diversion of water only as such diversion affected the level of the lake. With the laying of the first, or 12-inch, pipe, the level of the lake could be in no case reduced below the mouth, or intake, of the pipe. What was threatened (and this is the measure and limit of the adverse right asserted by defendants’ assignors) was the lowering of the level of the lake to the level of the mouth of the pipe. Whether much or little water was taken hourly, or daily, no lower level could result. The case is not different from one where a ditch had been cut to the lake through which, as was desired, or required, water was diverted. This 12-inch pipe and such apparatus as was used with it furnished the visible evidence of the nature and extent of the trespass which was being committed by the defendants, or, as has been stated, of the right which was being asserted. Assuming that acquiescence in such diversion of the water as could be accomplished by the means thus employed continued for such length of time that complainants would be estopped to deny the right to continue the taking, it does not appear that there has been any acquiescence in the taking of water through pipes laid lower than the original pipe.

The argument advanced by Mr. Justice Brooke leads irresistibly to the conclusion that, because complainants acquiesced in the taking of such amount of the water as would flow through the pipe originally laid, defendants have the right, as the level of the lake is lowered, to lay successive pipes until they draw off the last drop of water which the lake contains, provided they do not on any day, or at any time, take a larger quantity of water than was originally taken through the pipe first laid. I conceive that in laying a 6-inch pipe lower than the original pipe, and in laying a 9-inch pipe, lower than the 6-inch pipe, defendants committed distinct trespasses — asserted new rights. Those pipes were laid shortly before the bill was filed, and complainants have not acquiesced in diverting the waters of the lake by means of these last-mentioned pipes. By the laying of those pipes they were threatened, not with the diversion of a larger or smaller quantity of water than formerly, but with a further reduction of the level of the lake below its natural level, with an injury to their premises never threatened before. The learned circuit judge, as I understand the decree, requires the defendants to obstruct all pipes except the one originally laid and to take no water from the lake except such water as can be taken through the original pipe. Whether the decree gives to defendants rights greater than they are entitled to is, as I have stated, immaterial because complainants have not appealed.

I am of opinion that the defendants have no ground for complaint, and that therefore the decree ought to be affirmed.

Steers, C. J., and Moore, Kuhn, and Stone, JJ., concurred with Ostrander, J.

Brooke, J.

(dissenting). The bill of complaint in this cause is filed for the purpose of securing an injunction against defendants restraining them from taking any water from Barron Lake. The complainants are owners of certain lands upon the shore of said lake upon which they have erected hotels and cottages which they use for summer resort purposes. Complainants Hunter Bros. own and operate an ice plant on the shore of said lake from which they cut ice to the value of $10,000 annually. The lake is one mile long, one-half mile broad, and has an area of 255 acres. It has no visible inlet or outlet, being fed from underground springs and such surface water as finds its way to it from the surrounding watershed.

In the year 1882, one Solon L. Wiley secured leases from two of the riparian owners upon Barron Lake. These leases covered a right of way from the highway near the lake to the lake in which Wiley had in the year 1877 placed the pipe through which he conveyed the water of the lake to the city of Niles. While these leases do not in terms convey to Wiley and his assigns the right to take such water as a riparian owner, it is obvious that such rights were within the contemplation of the parties, for each lease contains the provision that:

" This lease is to expire whenever the Niles Waterworks or its assigns cease to use the water of Barron Lake, when the said lands and the use thereof are wholly to revert to said parties of the first part.”

In the year 1877, and before the acquisition of his rights under these leases, Wiley had laid a pipe from the lake to the city of Niles and commenced to distribute water to the citizens of said city. Later, in the year 1886, Wiley secured a conveyance by way of deed from one Catharine M. Reese of a right of way across her land to the lake—

Sufficient in width to enable said Wiley to lay down an 18-inch tile or pipe across said land upon the line above described to the gatehouse of the Niles Waterworks, and including said gatehouse, and the pipe line already laid there from Barron Lake. * * * And it is further understood and agreed that this instrument covers the right to draw water from said Barron Lake.”

The grantors in these several instruments, at the time the conveyances were made, together owned about one-third of the shore of said lake. The conveyances were all made for a valuable consideration, and the rights conveyed were defeasible only when Wiley or his assigns should abandon the use of said tile or pipe for conveying water from Barron Lake.

From the year 1877 to the present time the defendants or their assignors have, without interruption, continued to draw water from Barron Lake for the use of the citizens of Niles. In the year 1894, the city of Niles installed a system of waterworks, the water to supply which was taken from artesian wells. After the establishment of the city plant, many of the citizens of Niles took water from that source instead of from the defendants, so that from that time down to the present the amount of water drawn from the lake by defendants has been materially (perhaps by as much as one-half) reduced. As originally constructed a 12-inch pipe was laid from deep water in the lake to a gatehouse on the shore. This pipe discharged into the gatehouse on one side, and the water flowed into the pipe line from the city on the other side. Prior to 1906, the defendants or their predecessors found it necessary at rare intervals to use a pump at the margin of the lake by reason of the fact that the lake level sank to a point which would not permit the water to flow through the 12-inch pipe. Either in that year or the year 1907, defendants installed two other pipes, one a 6-inch pipe running into the gatehouse, the top of which was level with the bottom of the 12-inch pipe. A few weeks later a 9-inch pipe was put in which passed around the gatehouse and connected with the city main. The 9-inch pipe is somewhat lower than either the 6 or 12-inch pipe. Since the installation of the 9-inch pipe, no pumping has been necessary. The reservoir used by defendants in the city contains from 230,000 to 250,000 gallons. When full its contents would satisfy the damands of defendants’ customers about 28 hours.

The record shows that each spring the level of the water in Barron Lake is high, and that as the season progresses the waters gradually recede. In unusually dry seasons this recession is greater than in those seasons when the precipitation is greater. It seems clear, too, that the general level is somewhat lower in late years than it was formerly. The bill of complaint herein was filed in October, 1906, and the final decree entered in September, 1910. The evidence was taken from time to time during the years 1907 and 1908, so that we know nothing of the lake level during the summers of 1909 and 1910, though the record shows that the water was higher in 1907 than in 1906.

The material part of the decree is as follows:

The defendants and each of them are forever enjoined and restrained from drawing any water from the said Barron Lake when the same shall stand at no higher elevation than the top of the intake pipe in the said screen-house, or when the same shall stand at less than 12 inches over the floor of the said screenhouse, and that the pipes leading around the said screenhouse shall be obstructed or removed so that no water shall be permitted to pass through the same.”

From this decree defendants appeal.

It is claimed by the complainants that by reason of the use of the water by defendants the level of the lake is so lowered as to cause its shores to be exposed, thereby making it unsightly and unhealthy. The record fully establishes the fact that there have been occasions during the past 30 years when the water has been at an unusually low stage. The proof that this condition endangers the health of the inhabitants is not convincing.

Defendants deny that the general level of the waters of the lake can be ascribed to their use thereof. They show that the withdrawal of 200,000 gallons per day (which is approximately the amount they claim is used by their customers) would lower the level but ^ of one inch in a day, or 1 inch in 35 days. This would amount to something less than 4 inches during the four months from July to October, inclusive, while the loss from evaporation alone in this latitude during those months amounts to 17.80 inches. It appears, too, that a large marsh lying to the south has, within the past few years, been drained, and, while there is no known connection between the ditch draining the marsh and the lake, it is possible that that operation may have had an influence upon the level of Barron Lake.

Added to these causes, it is demonstrated that the advance of civilization, accompanied as it is with the removal of the forest growth and the making of watercourses, tends to permit the moisture to more rapidly escape. There can be no doubt that the general average level of practically all inland lakes and streams is lower than it was when the country was newer and more unsettled.

We must, we think, hold that for the purposes of this case defendants should be treated as riparian proprietors under their several grants. It is probably true, as contended, that their status as such gave them no right to the use of the waters of the lake for nonriparian purposes if such use resulted in damage to the other owners of the shore of the lake. They and their predecessors in title did, however, make such use of the water, and have continued to so use it for a period much longer than is necessary to establish a right by prescription. This right seems to have been recognized by the learned circuit judge; but he, apparently, was of the opinion that the right to take the water was limited to a certain method. We believe that the gist of the easement lies in the quantity of the water taken, and not in the particular method in which it is taken. Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435).

The position of complainants is that the statute does not commence to run from the time the acts complained of were first performed, but, “from the time that the rights of complainants were first infringed.” It seems to us clear that in contemplation of the law the injury commenced on the first day the water was taken from the lake. The mere fact that complainants (or their grantors) were not then resident upon the banks of the lake, and therefore were not compelled to view its unsightly shores or smell the noxious odors arising therefrom, can have no bearing upon the legal question. It is, we think, well settled that a right to use the waters of a stream (or lake) in a particular manner not justified by natural rights may be acquired by prescription. 2 Farnham on Waters & Water Rights, § 535, and note; Gould on Waters, (3d Ed.) § 329, and cases cited, See, also, Id. § 225.

It is urged by defendants that inasmuch as complainants and their grantors have stood by for upwards of 30 years, and while defendants have expended large sums of money in installing and maintaining its plant, and have permitted the alleged unlawful withdrawal of the water during all that time without asserting their legal rights, they should now be held to be equitably estopped from interfering with such use, particularly in view of the fact that it is demonstrated that the amount now taken is materially less than it was during the first 17 years of operation. Upon this branch of the case the following authorities may be consulted: Payne v. Paddock, Walk. Ch. (Mich.) 487; Maxwell v. Bridge Co., 41 Mich. 453 (2 N. W. 639); Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 463; Carlisle v. Cooper, 21 N. J. Eq. 576; Clark v. Glidden, 60 Vt. 702 (15 Atl. 358); Pennsylvania Railroad Co.’s Appeal, 125 Pa. 189 (17 Atl. 478); Penrhyn Slate Co. v. Power Co., 181 N. Y. 80 (73 N. E. 566, 2 Am. & Eng. Ann. Cas. 782).

While our decision might well rest upon this ground, we prefer to place it upon the ground of prescription heretofore considered. It is clear that the decree as entered below may in any season, and, in the light of past experience, certainly will in the near future, result in the absolute destruction of defendants’ property. Defendants are supplying water to about 450 families. To entirely deprive them of water during the weeks or months when the level of the lake was below the point fixed by the decree would be to compel them to procure water from another source, and defendants could not hope to again supply them during the seasons of high water.

The pase made by complainants is not one which appeals to the conscience of a court of equity. By their laches they have made it impossible for the court to enjoin defendants without the infliction of irreparable injury. Under such circumstances equity will not interfere, but will leave the party to his legal remedy if there be one.

The decree of the court below should be reversed, and a decree entered in this court dismissing complainants’ bill of complaint.

Bird and McAlvay, JJ., concurred with Brooke, J.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    HANNA v. SMITH.
    1. Customs and Usages — Contracts—Evidence—Oil Wells.
    Evidence that it was customary in driving oil wells to include an extra charge for “rimming out” or enlarging the bore in order to admit the casing, was incompetent in an action for labor and materials furnished in driving a well under a written contract, containing complete terms and providing for a charge of five cents a foot for removing the casing under certain contingencies.
    2. Same — Written Instruments — Parol Evidence.
    A written contract cannot be varied or contradicted by proof of usage, although evidence is admissible, in the absence of express stipulations, where the meaning of the contract is equivocal, to explain the terms used.

    3. Same — Wells—Contracts.
    Provisions that the methods employed in casing the well should be such as are usually employed in similar drilling and casing of oil and gas wells in oil territory, had no reference to the price, but referred merely to the methods of work; and no dispute having arisen relative to the manner of driving and casing the well, the clause .did not warrant admission of evidence as to custom.
    4. Same — Trial.
    Under undisputed evidence that an elevator, used in boring the well, was part of the necessary apparatus which plaintiff, the contractor, agreed by the written contract to supply, defendant was entitled to a direction in his favor that plaintiff could not recover extra compensation for furnishing the equipment.
    5. Same — Recoupment.
    And the defendant was entitled to recoup for the cost of procuring hydraulic jacks to raise the casing, which the contract provided should be withdrawn when necessary, plaintiff to receive five cents a foot for the work.
    Error to Eaton; Smith, J.
    Submitted January 26, 1912.
    (Docket No. 84.)
    Decided January 3, 1913.
    Assumpsit by Charles Hanna against Alexander H. Smith for materials and labor furnished in boring an oil well. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Joseph B. Hendee and David B. Love, for appellant.

      O. Elmer McArthur and Franklin Franks, for appellee.

       On the admissibility of evidence of custom to create an exception to written contract, see note in 3 L. R. A. (N. S.) 248.

   McAlvay, J.

Plaintiff brought suit in assumpsit against defendant to recover an amount claimed to be due him under a certain contract entered into between the parties for putting down a test well for oil, gas, copper, coal, or cement in Hamlin township, Eaton county. He recovered a judgment in the sum of $1,295.92. The case is here for review by writ of 'error.

The contract out of which the dispute in this case arises is as follows:

“A contract made and entered into at the city of Eaton Rapids, Mich., this 15th day of July, A. D. 1910, by and between Alexander H. Smith, party of the first part, and Charles Hanna, of Bloomdale, O., party of the second part, witnesseth: That, whereas, the party of the first part proposes to undertake the boring of a well for oil, gas, copper, coal, or cement, upon property for which said first party holds a lease, the. exact location of said well to be in the township of Hamlin, county of Eaton, State of Michigan. And whereas, the party of the second part desires to enter into a contract with party of the first part, for the purpose of boring a well for oil, gas, copper, coal, or cement, and also for completing said bore to a depth of 2,000 feet, for said first party: Now, therefore, it is agreed by and between the parties hereto as follows:
“(1) The party of the second part agrees to furnish all tools, engine, boiler, cables, sand line, reel, and wheel, tubing line or any other equipment necessary for making a test bore for any of the minerals herein specified.
“(2) In consideration of the covenants and agreement on the part of the first party to be done and performed as hereinafter expressed, the party of the second part agrees to bore to a depth of 2,000 feet for fifty (50) cents per lineal foot.
“(3) The first party agrees to furnish all material, including coal, to be delivered to the boiler at his own expense, the amount necessary to make a test bore to a depth of 2,000 feet, but shall in no wise be responsible for the loss of any tools belonging to second party, in making this bore.
“ (4) First party retains the right to stop the operations at any depth where a paying proposition is found.
“ (5) First party further agrees to pay all freight charges on tools and equipment in and out, also all team work in and out.
“ (6) Payment for labor on this contract shall be made weekly, as follows: two drillers, four dollars ($4.00) each per day, and board; two tool dressers, three dollars ($3.00) each per day, and board, all to be paid by first party, but said first party shall in no case be held for board or wages in case of sickness or other cause, for being off duty during the time this bore is being executed.
“ (?) The size of bore of said well at surface of ground shall not be less than ten (10) inches in diameter, and said bore shall be continued down from the surface of the ground at a diameter of ten (10) inches until solid rock is reached, and drive pipe put onto said rock, and the methods employed in easing said well shall be such as are usually employed in similar drillings, and casings of oil and gas wells in oil and gas territory, in order to get the very best results, either from the find of oil or gas.
“ (8) The party of the first part will not be held liable for any money to said second party, until the completion of this contract, but will pay expenses as herein stated.
“ (9) A failure of second party, for any reason whatsoever, to complete this contract, then all rights of said second party herein are extinguished, and this agreement shall become null and void.
“ (10) And it is further agreed that if it becomes necessary to draw the casing from said well, that the party of the first part shall pay to second party, the sum of five (fí) cents per foot for each and every foot of casing so drawn out of the well by him.
“ In witness whereof, the party of the first part and the party of the second part have hereunto signed this duplicate agreement, the day and year first above written.
“Alexander H. Smith.
“Chas. Hanna.”

Under this contract plaintiff proceeded to, and claims that he did, put down the test well provided for according to its terms to a depth of 2,000 feet.

The principal contention in the case relates to the admission of testimony by the court, over the objections of counsel for defendant, relative to certain customs and usages alleged to prevail in oil fields, under which evidence was introduced for the purpose of proving items charged by plaintiff, and claimed recoverable under said contract, and upon which recovery was had. This involves a construction by this court of the terms of the contract which is the basis of this suit.

Objection was first made on the direct examination of plaintiff, relative to items in his bill of particulars amounting to 4130, charged for rimming out 260 feet of the well hole, part of which was 10 inches and part 8 inches in diameter; it being contended by the defendant that by the express terms of the contract such testimony was inadmissible. . Wells of the character of the one put down under this contract require the use of a considerable equipment of tools and machinery, all of which, under this contract, by specific agreement, the plaintiff was to furnish. The casing mentioned in the contract is a heavy metal pipe of required sizes, driven down the hole to such depth as may he necessary. The purpose of casing a well of this kind is to prevent sand, gravel, water, or other undesirable subtances from filling up or running into the well as the work of drilling progresses. A drill and many other tools and appliances are required for the purpose of sinking such a well. The drill is a heavy steel bar, like a giant cold-chisel, which is screwed into a socket at the lower end of a heavy iron bar of 20 feet or more in length, the whole of which is attached to a heavy cable rope and is of great weight. A derrick is built over the well, extending above the wellhouse, in the top of which is a pulley. The drilling cable goes up over this pulley, and is brought down and attached to the end of a walking beam, operated by an engine, which furnishes the power for operating the drill in the well hole by lifting and dropping it as it drills.

In sinking a well, when it becomes necessary to drive down casing, the drill is removed, and the hole enlarged by what is called “rimming” out to the size required. The casing is heavy tubing which is of the size required, and is made in lengths of about 20 feet, is then lifted, length by length, and driven into the well. A cap is screwed upon the top of the piece being driven to protect the end from becoming battered. This cap is taken off as each length is driven, and the next length is screwed to the one already in the hole. This is repeated, length by length, until sufficient casing has been driven. The drill is then put to work again and the drilling continues. If it appears that further casing is required, the drill is removed, and the casing is driven down from time to time as the necessities of each case may require.

Consideration must now be given to the terms of this contract under which the parties to this suit are operating. The contract recites that this well was a test well, which defendant desired to have bored, for oil, gas, copper, coal, or cement, and plaintiff desired to enter into contract with him for the purpose of boring and completing such well to the depth of 2,000 feet, and by the terms of the contract plaintiff (who is described as the party of the second part) agreed as follows:

“(1) Party of .the second part agrees to furnish all tools, engine, boiler, cables, sand line, reel and wheel, tubing line, or any other equipment necessary for making a test bore for any of the minerals herein specified.
“ (2) In consideration of the covenants and agreements on the part of the first party (defendant) to be done and performed as hereinafter expressed, the party of the second part agrees to bore to the depth of 2,000 feet for fifty (50) cents per lineal foot.”

Plaintiff further agreed that the size of the bore of the well was to be not less than 10 inches from the surface of the ground until solid rock was reached and the drive pipe (casing) put into the solid rock—

“ And the methods employed in casing said well shall be such as are usually employed in similar drillings and casings of oil and gas wells in oil and gas territory, in order to get the very best results either from the find of oil or gas.”

Defendant agreed, on his part, to furnish all materials, including coal, to be delivered at the boiler at his own expense to an amount necessary to make the test bore to the depth of 2,000 feet, but not to be responsible for the loss of any tools belonging to plaintiff, and also to pay all freight charges on tools and equipment in and out and all team work hauling in and out. He agreed to pay for labor on this contract weekly, two drillers at $4 each per day and board, two tool dressers at $3 each per day and board, but in no case to pay board and wages while the workmen were off duty on account of sickness or other cause; and he further agreed, if it became necessary to draw the casing from the well, to pay plaintiff the sum of five cents per foot for each and every foot of casing so drawn out of the well by him.

The major portion of the briefs for both parties is taken up with the discussion of the principal contention in the case referred to and upon which the greater portion of claimed errors relied upon is assigned. On the part of defendant it is urged that the obligations resting upon each of the parties to the suit under this contract are therein set forth clearly and concisely, and without ambiguity. The first matter of this contention over which dispute arose was relative to “ rimming out ” the well. The agreement of the plaintiff, as determined by the contract, was to bore and complete the well to the depth of 2,000 feet for the sum of 50 cents per lineal foot. The easing which was to be used in the well was to be furnished by the defendant. In this respect it does not appear to us that there was any ambiguity in the terms of this contract, or that it requires any extraneous proof of any usage or custom as to what was intended by the parties to the contract. In drilling and completing this well to the depth of 2,000 feet, by the terms of the contract, it was contemplated that casing would be required, and it is evident that, without casing, this well could not have been put in to that depth. The record is full of evidence uncontradicted to that effect.

The record shows that “ rimming out” or enlarging the bore was necessary in order to make it large enough to receive the casing, which is driven down, as already explained, and this must necessarily have been within the contemplation of the parties when this contract was entered into, which provided that the casing should be driven down to solid rock, and fixed the price per lineal foot plaintiff was to receive for completing this test well to the depth of 2,000 feet. To drill this well to that depth without casing would have been an impossibility. No charge has been made or claimed for work done in driving the casing into this well, but provision is made in the contract that, in case it became necessary to draw the casing from the well, defendant was required to pay plaintiff five cents per foot for such work. It is evident, therefore, that the matter of putting in and taking out this casing was passed upon and agreed to between the parties, and that all work necessary in putting in the casing was included in the price per foot agreed upon to be paid to plaintiff for putting down this well. The court was therefore in error in allowing evidence to be introduced as to usage and custom alleged to prevail in oil fields in respect to the price charged for “rimming.” Such evidence is admissible in the absence of express stipulations, and where the meaning of the contract is equivocal, but is never admissible to contradict what is plain and unambiguous. 1 Greenleaf on Evidence, §§ 292, 294. The general rule is that a written contract cannot be varied or contradicted by the proof of usage. This has been announced by the United States Supreme Court in numerous cases, and the decisions of this court are uniform to that effect. Van Hoeson v. Cameron, 54 Mich. 609, 613, 614 (20 N. W. 609), and cases cited; Lamb v. Henderson, 63 Mich. 302, 305 (29 N. W. 732), and cases cited.

This disposes of all the errors assigned relative to the admission of evidence in the case showing custom and usage relative to oil wells in oil territory.

It is insisted by plaintiff that this contract was made in contemplation of the existing and known customs and usages in putting down oil wells in oil territory, relying upon the part of paragraph 6, already quoted, which provides that “the methods employed in casing such well shall be such as are usually employed in similar drilling and casing of oil and gas wells in oil territory.” This provision relates solely to the methods employed in casing wells, upon which matters there appears to be no controversy in the case. The dispute does not arise over the methods employed in casing, but because of certain charges claimed for “ rimming out” the hole in order to put in the casing, which we have already determined were improperly allowed under the terms of the contract.

Error is assigned on account of testimony of plaintiff admitted in the case in support of the item of plaintiff’s claim for furnishing elevators and the charge of the court thereon, upon the ground that such elevators were part of the equipment necessary to be furnished by the plaintiff in performing his contract. The contract provides that plaintiff shall furnish all the equipment necessary for making the test bore. The plaintiff testified as follows:

Q. I will ask you whether an elevator is any part of the equipment for the drilling of a well P
“A. It is. The elevator becomes necessary when they are putting in piping. It holds right under the collar and lowers the joints down.”

Other witnesses in the case testified to the same effect. The question was submitted to the jury to be decided as a question of fact. An examination of the record does not show that there was any testimony to warrant the court in so charging. This was part of the necessary equipment required to be furnished by plaintiff under his contract.

On the part of defendant, as a claim of set-off, among other things, was a charge for procuring hydraulic jacks for the use of plaintiff in raising the casing out of the well, an item of $148 actual expense incurred by him. Upon this claim, the court instructed the jury that if they believed there existed a general custom in oil and gas well districts, familiar to the parties to this action, under which the defendant would be required to pay for the use of hydraulic jacks, then this offset should not be allowed. We do not find in the record any evidence to support such a charge, and from the contract it appears that plaintiff was to draw out the casing when necessary and receive five cents per foot for such work. This charge of the court was erroneous. The hydraulic jacks were necessary appliances and equipment to remove this casing, and, under this contract, the charge for the same by defendant was a proper one. The defendant claimed damages by way of recoupment for board of men, for coal, for labor, caused by unnecessary delay of plaintiff in the performanee of the work, and also for expenses for extra casing, including freight and other expenses, caused by the failure of plaintiff to properly case the well, and certain other items of cash claimed to have been expended on his account as set-off. It will be unnecessary and of no benefit to consider these matters, for the reason that upon another trial, which must be had, with the construction which we have given this contract and the determination made upon other questions discussed, they will present no difficulties to the trial court in the course of such trial.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial ordered.

Steers, C. J., and Moore, Brooke, Stone and Ostrander, JJ., concurred.


author: Steere, C. J.

text:
      In re KELLEY’S ESTATE. BEDFORD v. KELLEY.
    1. Principal and Surety — Release oe Surety — Negotiable Instruments — Bills and Notes.
    By extending the time for payment the payee of a note releases the surety, guarantor, or indorser who has not consented to the extension.
    2. Same — Distinctions—Guaranty.
    Surety and guarantor are similar in that each promises to answer for the debt or default of another, the surety assuming liability as a regular party to the primary undertaking, while the guarantor’s liability arises out of an independent collateral agreement by which he undertakes to pay the obligation if the principal fails to respond.

      3. Same — Contracts—Consideration.
    To release either, an extension of time must be more than a mere agreement to indulge or forbear, and must have the ' essentials of a binding contract, must be reasonably definite as to time, must be for a valuable consideration, payment of interest in advance being a sufficient consideration.
    4 Same — Evidence—Parol Rule.
    Though evidence to show the relations of the parties and attending circumstances is admissible as an aid in interpreting or construing a writing that is doubtful or ambiguous, it is not competent to contradict the plain provisions of an instrument.

    5. Same — Revocation—Death.
    Makers of a demand note, as collateral to loans or advances made by a bank in which they were interested, continued liable while extensions of time were given by the bank to the corporation, until revocation by act of the guarantors or other act of the parties: the death of one of the guarantors terminated the progressive nature of the indemnity agreement and extensions of time to the principal debtor thereafter released the estate of decedent from liability.
    6. Same — Termination—Revocable Guaranties.
    Guaranties are of two classes; (1) the consideration being entire, passing wholly at one time, (2) the consideration passing at different times and being separable or divisible: the former are revocable by the guarantor and do not terminate at his death, upon notice of the fact; the latter may be revoked as to subsequent transactions by the guarantor, upon notice to that effect, and are terminated by his death and notice of that event.
    7. Same — Laches—Guaranty.
    Delay for about four years after decedent’s death in attempting to enforce collection of an indebtedness, guaranteed by a joint note of decedent and others, where the principal debtor was a corporation that was solvent over two years after such death, when it became insolvent, no notice being given to decedent or his estate of default, was laches sufficient to release the liability of the estate of decedent and bar contribution to the joint indemnitors.
    Error to Berrien; Coolidge, J.
    Submitted October 9, 1912.
    (Docket No. 15.)
    Decided January 3, 1913.
    John W. Bedford and others presented a claim against the estate of Frank M. Kelley, deceased, for contribution. From a judgment of the commissioners on claims allowing the claim, defendant estate by Lafayette Kelley, administrator, appealed to the circuit court. Judgment for claimants and said administrator brings error.
    Reversed, new trial denied.

      Gore & Harvey, for appellant.

      Humphrey 8. Gray and Frank H. Ellsworth, for appellees.

       On the question of parol evidence as to whether guaranty was a continuing one, see note in 39 L. R. A. (N. S.) 740.
      As to effect under negotiable instrument law of extension of time to principal to release surety or guarantor, see note in 31 L. R. A. (N. S.) 149.
      On the question of the effect of death of party on guaranty, see note in 23 L. R. A. 709.
      As to extension of time by attorney as discharging surety, see note in 39 L. R. A. (N. S.) 62.

   Steere, C. J.

In March, 1911, claimants recovered a verdict and judgment in the circuit court of Berrien county against the estate of Frank M. Kelley, deceased, for $1,340.45, as his proportional liability upon a collateral note for $10,000, signed by him and six others, as guarantors for the West Michigan Nurseries Company. Said note was dated February 6, 1903. Said Frank M. Kelley died June 24, 1904. On June 12, 1908, payment having been insisted upon, these claimants, being three of the seven makers of the note, paid to the Farmers’ & Merchants’ Bank of Benton Harbor, Mich., the holder of said note, the $10,000 demanded, whereupon said note was surrendered to them. On November 1, 1909, they presented a claim for contribution, in the probate court of Berrien county, against the estate of said Frank M. Kelley, deceased, based on the payment by them of said note. The commissioners on claims against said estate allowed their claim at the sum of $2,698.76, and an appeal was taken by the administrator to the circuit court, where trial by jury was had, resulting in the verdict and judgment above stated. Said administrator thereupon removed the case to this court for review on writ of error.

The note in question was given as collateral to protect a line of credit extended to the West Michigan Nurseries, a corporation in which said Frank M. Kelley and the other signers were interested. The West Michigan Nurseries was organized and incorporated in 1896, having its headquarters at Benton Harbor, Mich.; its nurseries being located at Eau Claire in Berrien county. The claimants herein and said Kelley were all stockholders and directors in said company. Kelley, who was a farmer residing in Berrien county, was a director from the time it was organized until he died. The company borrowed money from time to time for the furtherance of its business and prior to 1903 had obtained a line of credit to the amount of $5,000 from the Farmers’ & Merchants’ Bank, of Benton Harbor, secured by a collateral note for $5,000 signed by members of the board of directors of said nursery company, among whom was said Kelley. The indebtedness of the company had gradually increased until, in February, 1903, it owed the bank $13,000, and, at the insistence of the cashier of the bank that the loan could not be continued without increased collateral, the directors of the West Michigan Nursery Company gave to the bank the note in question, which is as follows:

.“$10,000. Benton Harbor, Mich., Feb. 6, 1903.
“ On demand after date I promise to pay to the order of Farmers’ & Merchants’ Bank ten thousand dollars payable in gold at their office in Benton Harbor, Mich. Value received, with interest at 7 per cent, per annum.
“ W. B. Mosher.
“F. M. Kelley.
“H. L. Bird.
“ A. C. Bird. ”

On the back of said note appears the following indorsement:

“ This note is given as collateral to other notes of different amounts and dates made by the West Michigan Nursery Company, favor of Farmers’ & Merchants’ Bank, Benton Harbor, Mich.”

Negotiations for this line of credit were conducted with the bank by H. L. Bird, treasurer of the company. He testified that when these negotiations were had, and after the previous note for $5,000 was given, he fully explained the transaction to the directors of the nursery company, including deceased, and told them it was necessary to borrow money from time to time as the business demanded, that it was difficult and practically impossible to be constantly getting the directors together, and that, for the efficient transaction of business, continued acceptable collateral in sufficient amount to satisfy the bank was required, so that he could have it available whenever needed. After the note in controversy was given, the nursery company continued to do its business at the bank as previously, giving its notes, sometimes making payments on its indebtedness; then again borrowing more and renewing, in whole or in part, whenever its paper at the bank fell due, the bank in the meantime holding the $10,000 note as collateral therefor. The notes given by the company to the bank in the transaction of its business were 90-day paper. This course was continued until January 2, 1906, when all notes then held by the bank against the company, except one secured by other collateral, were substituted by, and their amounts merged into, one note of the company for $14,750. Interest was paid on this note, and it was renewed for the same amount on August 5, 1907.

On June 12, 1908, the nursery company having been found to be insolvent and unable to meet its obligations, after repeated demands and insistence by the bank, which yet continued to hold the $10,000 note as collateral to the company’s indebtedness, claimants here, Bedford, Preston, and Bird, took up said note, paying the bank the $10,000, which was thereupon credited by the bank on the $14,750 note of the company. Kelley had then been dead four years. When he died, in June, 1904, the nursery company was a large, prosperous, and growing concern, and solvent. It so continued until October, 1906, when a severe and disastrous freeze destroyed its nursery stock and entailed immense losses which it was unable to retrieve, resulting in insolvency. No demand was ever made by the bank upon Kelley or the representatives of his estate for the payment of this note. And, so far as shown, no notice of dishonor of the notes for which this note was held as collateral, or of any failure on the part of the nursery company to meet its obligations, was given to Kelley or his administrator until November 1, 1909, over five years after his death, when claimants presented this claim for contribution against his estate in the probate court.

On February 6, 1903, when this $10,000 note was given, the bank held 11 notes of the nursery company, of various dates and amounts, totaling $13,000. These, being 90-day paper, were soon retired; most of them being taken care of at maturity by renewal notes for the same length of time, upon which interest was paid in advance. The history of the company’s indebtedness, traced through the books of the bank and verified by witnesses, show a varying indebtedness, never less than the $13,000, represented by a sequence of 90-day notes, one occasionally being paid at maturity, but most often renewed with advance interest paid. Of the original $13,000, claimants trace, through repeated renewals and changing accounts, $8,250 as continued on until finally merged into the $14,750 note given January 2, 1906, and later renewed. While the note in question was payable on demand and, by the indorsement upon it, was collateral to certain other notes running for 90 days, “of different amounts and dates, made by the West Michigan Nursery Company,” claimants contend that it was a continuing collateral, which it is competent to show by evidence of the relations of the parties, of their previous and subsequent method of dealing, of the explanation given by Bird to his directors of the purpose of the note before they signed it, and by any other pertinent circumstances attending its execution; that, the signers being guarantors, notice of nonpayment by the principal was not necessary in order to hold them liable, and no laches could be imputed to the payee within the period fixed by the statute of limitations.

In behalf of the defense, it is Urged that the language of the writing indorsed on the note is plain and unambiguous; that it distinctly confines the guaranty to certain clearly designated, short-time notes then made, and cannot otherwise be construed; that testimony is not competent to contradict its plain terms and show a different oral agreement that it should continue and extend to notes thereafter made; that extending the time of payment by subsequent renewal notes, to run for a definite time, released the guarantors; that even conceding it was a continuing guaranty it was for no 'fixed period and terminated with Kelley’s death so far as he and his interests were concerned, and that further renewals released his estate. Failure to make demand, long delay, and laches are also urged as a defense.

It is conceded to be a general rule that extension of time by the payee to the principal, without consent of the surety or guarantor, releases the latter. While a surety and guarantor are not the same in all respects, they are similar in the particular that each promises to answer for the debt or default of another, the surety assuming liability as a regular party to the primary undertaking, while the guarantor does not, but his liability depends upon an independent, collateral agreement by which he undertakes to pay the obligation if the primary payor fails to do so. The authorities, in discussing certain principles common to both, often use the terms interchangeably.

As to either, an extension of time must, to operate as a release, be more than a mere agreement to indulge or forbear. It must present the essentials of a binding contract, reasonably definite as to time and for a valid consideration. Payment of interest in advance is a sufficient consideration. Schnitzler v. National Bank, 1 Kan. App. 674 (42 Pac. 496); Sweet v. Newberry, 92 Mich. 515 (52 N. W. 1005). In this case there was no express stipulation in the contract of extension that a delay should not affect the right to proceed against the surety at any time. The renewal notes were for an agreed, definite time, 90 days, and interest was paid in advance. The contract at each renewal was a definite, binding one. When the notes were given and advance interest paid, neither the bank nor the guarantors could take any steps to enforce payment until the debt was again due.

It is undoubtedly the law that evidence is competent to show the relations of parties and attending circumstances as an aid in interpreting, or construing, a written instrument which is uncertain and ambiguous. 32 Cyc. p. 40; Columbus Sewer Pipe Co. v. Ganser, 58 Mich. 385 (25 N. W. 377, 55 Am. Rep. 697); Big Rapids Nat. Bank v. Peters, 120 Mich. 518 (79 N. W. 891). But this cannot be extended to contradicting its plain provisions.

It is argued and urged by claimants that the indorsement upon the collateral note is not so clear as to preclude construing it to include notes to be made, as well as those already made, in the light of the relations of the parties and the mutual interpretation shown to have been given the instrument both by the bank and the makers of the note themselves. In view of the conclusions reached on other questions involved, we need not determine here whether it was competent to prove that the indorsement according to the understanding of the parties was a continuing guaranty.

Conceding that under the circumstances shown it is to be regarded as a continuing security for a succession of notes given and to be given by the nursery company to the bank, the length of time it should continue is left indefinite. The signers of the collateral note were guarantors, on a separate undertaking, payable on demand. The security then would continue, covering renewals until some subsequent action of one of the parties terminated it. The bank could terminate it by refusing further extension. The guarantors could revoke the continuing guaranty, nothing in the contract forbidding it, by proper notice to the bank, and extensions thereafter granted, would operate as a release. Death of the guarantor, of which the payee has notice, is of like effect. The death of Frank M. Kelley, known to all the parties, was notice to the bank of revocation and terminated the progressive element of the guaranty, at least as to him and his estate. Each renewal of the notes was a new transaction with a new consideration, and when made was indemnified by a continuing and, in effect, renewed, binding promise on the part of the living guarantor. Dead guarantors can make no new promises. We think it well established that the bank had notice of Kelley’s death. His business relations with the bank, and position with the company, of which the bank was a heavy creditor, and the fact that he was a well known and prominent man in that community, establish it by strong presumption; but, even if not shown, it would be no unreasonable hardship to require parties dealing in commerical paper to exercise sufficient diligence to ascertain whether the person on whose credit they are taking new notes is living.

“ Guaranties have been divided into two classes: one, where the consideration is entire, that is, where it passes wholly at one time; the other, where it passes at different times, and is therefore separable or divisible. The former are not revocable by the guarantor, and are not terminated by his death and notice of that fact. Calvert v. Gordon, 3 Man. & Ry. 124, 128; Green v. Young [8 Greenl.], 8 Me. 14, 15, 16; Moore v. Wallis, 18 Ala. 458, 463; Royal Ins. Co. v. Davies, 40 Iowa, 469, 471 [20 Am. Rep. 581]; Lloyds v. Harper, L. R. 16 Ch. Div. 290, 305-307, 313, 314, 317-321; Rapp v. Insurance Co., 113 Ill. 390, 394, 395 [55 Am. Rep. 427]. The latter, on the contrary, may be revoked as to subsequent transactions by the guarantor, upon notice to that effect, and are determined by his death and notice of that event. Offord v. Davies, 12 C. B. N. S. 748, 756, 757; Jordan v. Dobbins, 122 Mass. 168, 170, 171 [23 Am. Rep. 305]; Coulthart v. Clementson, L. R. 8 Q. B. Div. 42, 46, 47; Rapp v. Insurance Co., 113 Ill. 390, 395, 396 [55 Am. Rep. 427]; Menard v. Scudder, 7 La. Ann. 385, 391, 392 [56 Am. Dec. 610].” National Eagle Bank v. Hunt, 16 R. I. 151 (13 Atl. 116).

Vide, also, Gay v. Ward, 67 Conn. 147 (34 Atl. 1025, 32 L. R. A. 818); Jordan v. Dobbins, 122 Mass. 168 (23 Am. Rep. 305); Hyland v. Habich, 150 Mass. 112 (22 N. E. 765, 6 L. R. A. 383, 15 Am. St. Rep. 174); Valentine v. Banking Co., 133 Cal. 191 (65 Pac. 381).

The guaranty in the case at bar comes within the second class above mentioned. Death terminated the power of Kelley to act and revoked any authority or license he may have given, not yet executed or acted upon.

One year and four months after the note was given Kelley died. If the bank wished to hold the Kelley estate as a guarantor on the collateral note, it was then its duty to grant no further extensions, but proceed to collect the notes then in existence when due, or at least within a reasonable time thereafter. The nursery company’s notes were 90-day paper, and the collateral note was due on demand. The nursery company was then prosperous and solvent, and continued in that condition for over two years thereafter. The bank, by legal and binding contracts, repeatedly extended the time of payment after Kelley’s death, accepting renewal notes for a fixed time with interest paid in advance, as before, without even notice to his administrator, and until after the nurseries company became insolvent and conditions changed to the prejudice of the guarantor’s rights. Not only was Kelley’s estate released by the extension of time after his death in strict operation of law, but by attendant laches which would preclude recovery. Defendant’s counsel requested the trial court to charge the jury as follows:

“It is uncontradicted that, at the time the collateral note was given, the West Michigan Nurseries was a solvent corporation with assets sufficient to pay all its debts; that said corporation continued solvent during the lifetime of Frank M. Kelley, and that said corporation continued solvent for more than two years after the death of Frank M. Kelley. And I charge you that a delay on the part of the creditor, the Farmers’ & Merchants’ Bank, of demanding payment upon the collateral note for a period of more than five years, under the circumstances shown in this record, releases Frank M. Kelley and his estate from liability upon such contract.”

It is true that prompt notice of default in payment is not necessary to charge a guarantor, as in case of an indorser; but it is advisable to give such notice inasmuch as it frequently becomes important to prove notice to meet the presumption of laches arising from long delay. 1 Edwards on Bills, p. 241. Delay may, and often does, amount to laches and bar recovery regardless of the statute of limitations. While the guarantor of payment, not a party to the original note, cannot complain of laches, or want of notice, unless it has worked to his prejudice, on the other hand want of due diligence by the payee, which operates to the injury of the guarantor and occasions him loss which he could otherwise have avoided, operates as a release.

While this rule is enforced on less provocation in cases of a guaranty of collection than a guaranty of payment, it is equally applicable to the latter. It has been held that the guarantor is released if the payee fails to make demand, give notice of default, or to take any proceedings to collect for a period of five years. Shepard v. Phears, 35 Tex. 763. Where the maker, financially responsible when the debt became due, has left the State or subsequently become insolvent, a shorter period of delay is often imputed as laches and discharges the guarantor. Oxford Bank v. Haynes, 8 Pick. (Mass.) 423 (19 Am. Dec. 334); Gaff v. Sims, 45 Ind. 262; Gamage v. Hutchins, 23 Me. 565; French v. Marsh, 29 Wis. 649; Withers v. Berry, 25 Kan. 373.

For the reasons heretofore given, we are of opinion that the request quoted should have been given and a verdict directed for the defendant.

The judgment is reversed, and no new trial granted.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
    WANNER v. MARTIN.
    Appeal and Error — Demurrer to Plea — Final Judgment.
    Error does not lie to review an order sustaining plaintiff’s demurrer to defendant’s plea in abatement, with leave to defendant to plead to the declaration, because the order entered is not a final determination; defendant’s remedy is by writ of certiorari under Act No. 310, Pub. Acts 1905.
    Error to Saginaw; Gage, J.
    Submitted October 10, 1912.
    (Docket No. 25.)
    Decided January 3, 1913.
    Case by Madeline Clements Wanner against Fred J. Martin for slander. Defendant pleaded in abatement and a demurrer to the plea was sustained. Defendant brings error.
    Dismissed.

      McHugh, Gallagher & McGann, for appellant.

      Thomas A. E. Weadoch, for appellee.
   Ostrander, J.

To plaintiff’s declaration defendant filed a plea in abatement, and to this plea plaintiff demurred. The demurrer, coming on to be heard, was sustained, with leave to defendant to plead issuably. Defendant sued out a writ or error. It is objected on the part of appellee that the order of the court below is not final. We are referred to the case of Campbell v. Hudson, 106 Mich. 523 (64 N. W. 483), as authority for the proposition that the order sought to be reversed is final. In that case a demurrer to a plea was overruled, and it was said by this court that, although not final in form, the order was in substance and effect a final determination of the case, and that the trial court should have entered judgment quashing the writ. It is plain that the order now sought to be reviewed is not a final order. An expeditious method of reviewing such rulings is created by Act No. 310, Pub. Acts 1905.

The writ is dismissed, with the costs of printing the brief and an attorney’s fee of $15 to appellee.

Steers, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.


text:
      In re BUTTS’ ESTATE.
    1. Wills — Probate Practice — Plea.
    Contestants having filed a plea to a petition for the probate of decedent’s will, setting up a former adjudication in bar of the proceedings, were entitled, on demurrer to the plea, to have the facts set up therein taken as true.
    2. Same — Probate Courts — 'Vacating Orders.
    Except in pursuance of the statute permitting probate courts to modify or set aside their orders or decrees within 90 days of the rendition of the same (Act No. 271, Pub. Acts 1905 (5 How. Stat. [2d Ed.] § 12099), courts of probate have no jurisdiction to modify or set aside their orders or decrees, or, after admitting a will to probate, to enter a decree admitting a different instrument to probate.

    3. Same — Judgments.
    The effect of admitting to probate a subsequent will would be to revoke or set aside the prior adjudication, admitting the first will, even though the order of the court should not so declare.
    4. Same — Laohes.
    Proponent’s remedy, if any exists, is in chancery, which has jurisdiction to entertain bills in cases for which the probate courts have no adequate relief, and peculiarly incases of fraud, accident or mistake, where it appeared that an instrument subsequently revoked by the execution of a second will had been, by mistake, admitted to probate, and owing to the fact that proponent supposed the right will had been offered and admitted to probate, he took no action from 1880 until 1911.
    Error to Saginaw; Gage, J.
    Submitted October 15, 1912.
    (Docket No. 87.)
    Decided January 3, 1913.
    Dellmore A. Butts presented to the probate court of Saginaw county a petition to admit to probate the last will of Anna Maria Butts, deceased. Contestants filed a plea to the jurisdiction of the court which caused the proceedings to be certified to the circuit court for determination. Petitioner demurred and the demurrer was overruled; petitioner brings error.
    Affirmed.

      A. L. Chandler and George E. Pardee, for appellant.

      James P. Devereaux, for appellee.

       On the question of the right to dismiss or withdraw proceedings to probate or contest a will or issues thereunder, see note in 19 L. R. A. (N. S.) 121.
      As to who may sue or take other proceedings to set aside decree of probate, see note in 54 L. R. A. 761.

   Steere, C. J.

This case comes here on an appeal taken from a judgment of the circuit court of Saginaw county, overruling petitioner’s demurrer to a plea to the jurisdiction of the probate court of said county, to entertain a petition for the probation of a lost will, quashing the proceedings, and dismissing said petition in accordance with said plea. The matter was appealed and certified from probate court to the circuit court under Act No. 238 of the Public Acts of 1911 (5 How. Stat. [2d Ed. ] § 12111), permitting appeals to be taken from the probate court during the pendency of a petition for the allowance of a will, and before final hearing thereon in said court.

The petitioner, a grandson of Anna Maria Butts, deceased, filed the petition in question on October 16, 1911, in the probate court of Saginaw county, asking probation of a lost will claimed to have been made by deceased in June, 1878. Said Anna Maria Butts died in 1880, prior to April 20th of that year, on which day her son, Jacob Butts, filed a petition in said court for the probation of her last will and testament. An instrument in writing, dated April 5, 1876, was produced in evidence, and properly proven as such will. It was duly admitted to probate, and said Jacob Butts was appointed its executor. He qualified and entered upon his duties as such executor, and continued to act in that capacity until his death in 1901. Upon his death his brother, John Butts, who by said will was given a life estate in a farm formerly owned by deceased, was named as executor, and so continued until his death in 1911, following which his wife, Maria Butts, was appointed executrix, and so still continues.

Petitioner in this case is a son of said Jacob Butts, who filed the first petition, and was appointed executor in 1880. He claims in his petition that the former will made in 1876, and probated on petition of his father, had been revoked by a later will made in 1878; that neither he nor his father knew there were two wills, but labored under the misapprehension that the will then probated was the one now sought to be probated, owing to the fact that both wills gave a life estate in the land left by deceased, which was the principal part of her estate, to his uncle John Butts, and they were advised, and understood, that there could be no further distribution until his uncle’s death; that, after the death of his uncle in 1911, petitioner wrote to the probate court of Saginaw county to obtain a copy of the will which had been probated, and then it was first discovered that there were two wills, and the wrong one had been admitted to probate; that the later one, made in 1878, was drafted by an attorney named James Johnston, in Chesaning, Saginaw county, and left with him for safe-keeping, and was in existence at the time of the death of the testatrix, but that said Johnston has since died and his papers have been scattered and destroyed, so that said will cannot be found and produced; that petitioner can, however, make proof of the contents of the same and its due execution, its disposition of the estate, after the death of his uncle, being different from that in the earlier will, which it expressly revokes.

After this petition was filed, the contestants, being beneficiaries under the will already probated, filed a plea to the jurisdiction, reciting briefly the history of the probation of the other will substantially as already stated, alleging that in the matter of said estate the same court had long before determined that a certain instrument in writing duly presented and proven was the last will and testament of the deceased; that for the court to again act and take cognizance of this second petition would necessarily involve the setting aside of former orders of the court relating to the same estate, and would require the exercise of powers not vested in the court, and beyond its jurisdiction. At this stage of the proceedings the petitioner removed the case to the circuit court, under the statute already referred to, and a stipulation in writing was entered into between the parties, providing that, after the plea had been disposed of, either party could file such order or take such steps as to them seemed proper, following which petitioner demurred to the plea. The case was thereupon submitted to the circuit court on said petition, plea, and demurrer, and said demurrer was overruled.

The matter being presented on demurrer, it is the rule that all facts alleged and set out in the plea must he taken as true for the purposes of this case, though here the facts material to the question before us also appear in the petition, and are conceded to be true by both parties. It is undisputed that on May 17, 1880, an instrument in writing, duly presented and proven, was adjudicated by the probate court to be the last will and testament of the deceased; that the administration of her estate continued under said will for 31 years, owing to the duration of the life estate provided for in said will. Petitioner now asks that another and different will alleged to be lost, but the contents of which he proposes to prove, containing a revocation of the former will which had been probated, be declared to be the last will and testament of said deceased. Counsel for petitioner discuss at length in their brief the question of laches, and are undoubtedly correct in their contention that it is usually one of fact to be determined in a trial of the case on its merits, and not, as a rule, for adjudication on a plea in abatement or to the jurisdiction. Counsel for contestant substantially admit this, and say in their brief:

“ We believe we have made it plain that our objection to appellant’s petition is not upon the ground of laches and we submit that the issue is this: Has a probate court jurisdiction to entertain a petition for the probate of an instrument alleged to be the last will and testament of a deceased person, where the same court, in the same matter and estate, has already adjudicated that a certain other instrument is the last will and testament of the deceased person?”

It is recognized as a general principle of law, both in England and America, that any court, whether ecclesiastical, surrogate, probate, or otherwise designated, which, acting within its jurisdiction, has admitted a will to probate, has inherent power to vacate its order or decree and revoke such probate, unless, as in a few jurisdictions, the constitutions and statutes are so framed as to deny the court such power. 40 Cyc. p. 1234. This is one of the jurisdictions where the general rule does hot obtain. In this State such power is denied to the probate court. While that proposition was at one time a matter of serious contention in this court, and a vigorous dissenting opinion was filed in Grady v. Hughes, 64 Mich. 540 (31 N. W. 438), the question has long since been put to rest beyond controversy by adjudicated cases. Besancon v. Brownson, 39 Mich. 388; Grady v. Hughes, supra; Wright v. Wright, 79 Mich. 527 (44 N W. 944); Corby v. Judge of Probate, 96 Mich. 11 (55 N W. 386); Hitchcock v. Judge of Probate, 99 Mich. 128 (57 N. W. 1097); Smith v. Boyd, 127 Mich. 417 (86 N. W. 953); Hopper v. Probate Judge, 137 Mich. 124 (100 N. W. 266); In re Mills’ Estate, 158 Mich. 504 (122 N. W. 1080). The stringency of these decisions was recognized and somewhat relaxed by Act No. 271, Pub. Acts 1905 (5 How. Stat. [2d Ed.] § 12099), conferring on probate courts power to modify or set aside their orders and decrees within 90 days of their rendition, after due notice to all parties in interest, but that provision furnishes no relief in this case, arising so many years subsequent to the original probation.

Petitioner contends, however, that he does not ask or seek by his petition to have the court revoke, or set aside, its former orders or judgments, and that it is not necessary to do so in order to grant the prayer of his petition; that the order admitting a will to probate is conclusive only as to its due execution. If properly proven and found to be duly executed, the lost will, as well as the former will, stands probated and established as duly executed, thus laying the foundation for invoking a court of chancery to determine between them; the probation of the will being a prerequisite to the chancery court assuming jurisdiction, inasmuch as jurisdiction to probate wills primarily rests with the probate court. We are unable to accept these conclusions. The probation of the later will of the same testatrix, in relation to the same property, by its terms revoking the former will, inevitably operates to nullify and vacate the probation of the former, though the second order of probation may not so declare in exact language. With the admission of a will to probate goes the power and duty to construe such will, and to administer the estate of the deceased according to its terms. It is idle to say two conflicting wills of the same person, making a different disposition of the same estate, can stand probated in and be administered by the same court, at the same time. While probate courts are by statute given jurisdiction of all matters relating to the settlement of estates, they are nevertheless courts for peculiar and limited purposes, and in certain respects incapable of dealing completely with many questions relating to ordinary rights. One of their limitations, as already observed, is lack of power to set aside their own adjudications and grant rehearings, except as authorized by statute. In view of the peculiarities and restrictions necessarily appertaining to the probate courts, the legislature, in the same section by which it conferred upon said court jurisdiction of all matters relating to settlement of estates, also provided—

“That the jurisdiction hereby conferred shall not be construed to deprive the circuit court in chancery, in the proper county, of concurrent jurisdiction, as originally exercised over the same matters.” Section 651, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12099).

Under our probate system, this section, in its entirety, has been construed to give the chancery court jurisdiction only where an adequate remedy does not exist in the probate court, and to declare that in such contingency the chancery court does have jurisdiction to exercise its inherent equity powers, amongst which, peculiarly within its province, are fraud, accident, and mistake. People v. Wayne Circuit Judge, 11 Mich. 393 (83 Am. Dec. 754); Holbrook v. Campau, 22 Mich. 288; Smith v. Boyd, 127 Mich. 417 (86 N. W. 953); Nolan v. Garrison, 156 Mich. 397 (120 N. W. 977).

We are of opinion that the circuit court was correct in its conclusions that the probate court was without jurisdiction, and petitioner’s only forum, if any, is the court of chancery.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Kuhn, J.

text:
    RILL v. GARRITY.
    Easements — Deed, Execution of — Lost Instruments.
    Evidence tending to show that defendants executed a deed under a misunderstanding as to its effect, considered and held, to be insufficient to defeat complainants’ bill to establish a private alley in pursuance of the provisions of the instrument, that had become lost or mislaid.
    Appeal from Wayne; Murfin, J.
    Submitted November 14, 1912.
    (Docket No. 102.)
    Decided January 3, 1913.
    Bill by Harry J. Rill and others against John Garrity and others for the establishment of an alley pursuant to provisions of a lost deed. From a decree for complainants, defendants appeal.
    Affirmed.

      James H. McDonald, for complainants.

      Navin, Sheahan & Kennary, for defendants.
   Kuhn, J.

This controversy is over a strip of land nine feet wide, used as an alley, in the rear of the premises of the parties to this litigation, who reside on Antoinette street, in the city of Detroit. Originally the lots faced on Fifteenth street, but as Antoinette street was considerada better street by Joseph Colwell, who was at one time the owner of the premises, he redivided the lots into four parcels and built houses on them to face Antoinette street,, laying out a strip nine feet wide, running from the old alley to Fifteenth street, for a private alley in the rear of the buildings.

Complainant Harry J. Rill purchased one of these lots, and when he had his abstract of title examined discovered that there was some doubt about the record title of this alley. He employed an attorney to prepare a deed, which was signed by all four lot owners along this strip of land. By this deed the nine feet should be conveyed to the city of Detroit as a public alley, if the city of Detroit would accept it; if not, then that each of the parties did convey his interest in that strip to the others, “for the purposes of a private alley, with a right of free and unobstructed ingress and egress, and also for any and all other purposes over and across said land for which a public alley is or may be used,” etc.

This deed was properly executed by all the parties and their wives, and duly acknowledged and delivered to the city of Detroit, with a petition asking that it be accepted as a public alley. This petition, after having been referred back by one committee of the common council and taken up by another, was denied, for the reason that it was the policy of the city to accept nothing as a public alley less than 18 feet wide. Subsequently, when this deed was demanded back for the purpose of recording it as a deed for a private alley, it was lost, and could not be found. The complainants thereupon filed their bill to establish and confirm the deed by which the alley was rededicated as a private alley. It is also claimed here, although it does not appear to have been urged upon the court below, that the 9 feet became an alley by long user. A fair reading of the bill of complaint, however, shows that the only right sought thereby was the establishment and confirmation of the lost deed.

The defendants’ position is that the instrument which they signed was represented to them by Mrs. Rill as a petition to the common council of the city of Detroit, requesting the said common council to accept the 9-foot strip in question as a public alley; that Mrs. Rill stated that if the common council did not accept it the petition would be returned to the defendants or destroyed, and that, relying entirely upon the representations and statements made to them by Mrs. Rill, they, without reading the paper, signed the same; that if the instrument which they signed was the lost deed, and they had known that it contained a deed for a private alley, they never would have signed it.

After the paper was drafted, Mrs. Rill took it to the defendants, and they admit that it was left with them overnight, and they signed it the next evening. Mrs. Rill testified that they had the deed two or three weeks. The notary who took the acknowledgment of Mr. and Mrs. Garrity testified that he asked them if it was their free act and deed, and whether they knew the nature of the paper they signed, and they answered that they did know the nature of the paper, and that it was their free act and deed. Mr. Hanna, who is a neighbor of the Garritys, testified:

“ Mr. Garrity owns the two [lots] on the west of me. Mr. Garrity did not buy those two on the west at the same time. He bought the one next to me first. I could not say how long afterwards that he bought the one on the corner. It was more than a few weeks. I have talked with Mr. Garrity about this alley. This talk that I now speak of was before he purchased the corner. We used to talk about the alley, and he was always very anxious that there should be an alley there. He had those bought at the start off, as I understand, from the People’s Savings Bank, and when he heard there was no alley he withdrew his offer. He wanted to back out of the bargain. They persuaded him, or convinced him, that there was an alley there, and the deal went through. Then afterwards he brought up this curb business. He got to talking to me about having that cut down; wanted to know why that curb was not cut down for that alley. He said: * I will have to see Mr. Haarer about that, and get that cut down.’ So Mr. Haarer says he did see him, and got it cut down, for the purpose of using it for an alley. The curb was cut down; yes. I know nothing more about making this deed between the then owners of the property about the private alley than that we all signed it.”

The deed is short, covering only one page, in simple and plain language. It can easily be understood, and appears to be an equitable and fair arrangement.

The trial judge had the witnesses before him, and heard the testimony as given on the witness stand. At the close of the hearing he found—

“ That the proof in this case shows quite clearly that the deed set forth in the bill of complaint was signed, acknowledged, and executed by these people.”

We are satisfied that this conclusion was justified by the record in this case.

The decree is affirmed, with costs.

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


text:
    DONNELLY v. LYONS.
    1. Fraud — Equity—Vendor and Purchaser.
    In a suit to cancel land contracts for fraud of the vendee, and to quiet title because of his default and forfeiture, fraud is not lightly to be presumed, and evidence that complainant believed, or was misled into thinking that the contracts were mere options, is found to be insufficient to sustain the burden of proof.
    2. Vendor and Purchaser — Default in Land Contract.
    Mere default in payments will not of itself terminate a land contract: the vendor must notify the purchaser or his assignee of his election to declare the contract void because of the breach.
    3. Same — Land Contracts — Forfeiture—Notice.
    Having notified defendant of her election to terminate the contracts for default, complainant was entitled to maintain a suit to quiet her title to the premises, although she had subsequently contracted to convey them to other purchasers, and defendant, after being notified of the forfeiture, tendered her a certain check for the purchase price, which she refused to receive.
    4. Same — Possession—Posting Signs — Quieting Title.
    By posting signs upon the premises, advertising them for sale, defendant did not obtain such a possession of vacant lots as to oust equity of jurisdiction over complainant’s bill to quiet title.
    Appeal from Oakland; Smith, J.
    Submitted November 12, 1912.
    (Docket No. 53.)
    Decided January 3, 1913.
    Bill by Agnes Donnelly against Samuel J. Lyons and others, to quiet title to real property. From a decree for complainant, defendants appeal.
    Affirmed.

      E. A. Fink, for complainant.
    Friedman, Bmilansky & Blumrosen, for defendants.
   Kuhn, J.

The complainant was the owner of 26 lots in the village of Royal Oak, in the county of Oakland. On or about January 10, 1910, she entered into four contracts for the sale of the lots with the defendant Samuel J. Lyons. The agreed price was $40 per lot, $1,040, and she received the sum of $2 down, which is the only payment she has ever received. The terms of payment were $5 or more every three months, so that the first payment was due April 10, 1910. There were certain clauses in the land contracts against the assignment thereof without the consent of the vendor, which complainant struck out, at the request of the defendant Lyons, because he claimed he could handle and sell the lots better. The contracts were drawn on the customary printed blanks, and complainant filled in the forms at the dictation of Lyons. On March 22, 1910, Lyons assigned the contracts to the defendant Merton L. Rice, and on August 16,1910, Lyons gave Rice a quitclaim deed of the lots in controversy, which was recorded in the register of deeds’ office on August 20, 1910. The contracts were recorded on August 22, 1910. Immediately after his purchase of the lots, Rice put up three signs thereon on which were the words, “ For sale or exchange, Merton L. Rice, 805 Majestic Building, Detroit,” and claims that he called at complainant’s house several times with the money for the purpose of making the payments called for by the contracts and did not find her at home. When the time of the first payment arrived, the complainant did not hear from Lyons or from any one. Being under the impression and belief that nothing more was necessary to terminate her prior contracts with Lyons, on and before July 6, 1910, she sold the lots to other parties on contract and subsequently executed deeds under the contracts for some of the lots. On bringing down the abstracts of title, she claims that she first learned of the recording of the Lyons contracts with assignments and quitclaim deed to defendant Rice. In November, 1910, complainant, on learning of the claims of Rice, prepared and served on Lyons and Rice a notice to terminate the contract. On November 25, 1910, four days after service of this notice, the defendant Rice tendered a certified check to the complainant and her attorney for the amount he claimed to he due under the contracts, which tender was refused. Complainant thereupon filed her bill of complaint to quiet title against the four land contracts and the quitclaim deed and asks for relief on two grounds:

(1) Because, from her understanding of the transaction, she had given only an option for the sale of the lots, and, through the misrepresentation, fraud, and deception of defendant Lyons, was led to believe and to be assured that she had given only an option, which expired by its own limitations and terms, when, in fact, she had given a land contract, which it was necessary for her to terminate by affirmative action on her part.

(2) Because upon default in the performance of the contracts she had, through a proper notice, terminated the contracts and was entitled to have the title quieted as against the record of them.

The defendants Samuel J. Lyons and Bessie C. Lyons filed a disclaimer, and the defendant Rice answered and also filed a cross-bill, asking for the specific performance of the contracts made by the complainant with defendant Lyons and assigned to him. The trial court gave the complainant the relief prayed for, and defendants have appealed from the decree entered.

Counsel for complainant says that, although the first ground for relief was not urged strongly in the court below, it is not without force. A careful examination of the record does not disclose sufficient proof of any fraud or deception practiced by Lyons in the execution of the contracts in controversy. Complainant was a woman of some business experience. She had had the same form of contracts in her house and had executed the same kind of instrument to other people before and after the transaction with Lyons. Under the testimony offered, she would not be entitled to relief by reason of the first ground above set forth. Fraud is not lightly to be presumed, and it is the duty of those alleging it to prove it. Peaslee v. Collier, 83 Mich. 549 (47 N. W. 353); Clinton v. Rice, 79 Mich. 354 (44 N. W. 790); Gumberg v. Treusch, 103 Mich. 543 (61 N. W. 872); Zucker v. Karpeles, 88 Mich. 413 (50 N. W. 373); Bly v. Brady, 113 Mich. 176 (71 N. W. 521); Raymond v. McKenna, 147 Mich. 35 (110 N. W. 121).

The first question that confronts us in considering the second ground for relief is: Was the complainant in a position to declare a forfeiture of the contract at the time it was done ?

The contracts in question contained a clause or provision as follows:

“And if said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such failure, have a right to declare the same void, and retain whatever may have been paid hereon, and all improvements that may have been made on said premises, and may consider and treat the said party of the second part as a tenant holding over without permission, and may take immediate .possession of the premises and remove the party of the second part therefrom.”

It has been held, and it is the rule in this State, that mere default in payments will not of itself annul or make void the contract under such provisions, but that the vendor must give a notice that he has elected and does declare the contract void because of such default. Converse v. Blumrich, 14 Mich. 109 (90 Am. Dec. 230); Miner v. Dickey, 140 Mich. 518 (103 N. W. 855); Murphy v. McIntyre, 152 Mich. 591 (116 N. W. 197); Nelson v. Smith, 161 Mich. 363 (126 N. W. 447).

It is urged that, as complainant had contracted to sell all the lots in controversy, and had executed deeds to 11 of them, she was in no position to declare a forfeiture, and in support of this contention the case of Getty v. Peters, 82 Mich. 661 (46 N. W. 1036, 10 L. R. A. 465), is cited. An examination of that case shows that the trial court found that the defendant, the vendee in the contracts, had been ready at all times to perform said contract on her part, and this court, on examination of the record, sustained this finding.

In the instant case, can it be said that Lyons or his assignee, Eice, after default in making payments, was ready at all times to carry out the terms of the contract ? While the trial court has made no findings of fact, a careful examination of this record does not lead us to such a conclusion. It is true that defendant Eice claimed, on his direct testimony, that on one occasion he went to complainant’s house prepared to make a payment on the contract, but would not say for sure that he had the money with him, and, at a later session of the court, on cross-examination, claimed to have made several efforts for payment with the same result. It does not seem reasonable, however, that if he had made a bona fide effort to carry out the contracts he could not have done so. He did not have any difficulty in making a tender both to her and her attorney after notice of forfeiture. As we do not find from the record that such a genuine effort to pay was ever made before the forfeiture was declared, the facts do not come within the ruling of Getty v. Peters, supra.

In discussing this case, Mr. Justice Ostrander, in the case of Gould v. Young, 143 Mich. 572, 577 (107 N. W. 281), said:

“ Indeed, in that case it was expressly found that the vendee was always ready to perform the contract, and that, at the time notice of forfeiture was given, the vend- or had no title to the premises. We think no authority will be found for the broad claim asserted at the hearing that defendants may remain in possession without making payments, or being ready or offering to do so, because complainants have, since the contract period began, mortgaged the land.”

It is also claimed that Eice was in such possession of the premises, through the signs that were posted on the premises, as to preclude the complainant from seeking relief in a court of equity to quiet title, citing Beidler v. City Bank of Battle Creek, 172 Mich. 381 (137 N. W. 717). The premises were vacant lots, and no personal occupancy was had by Rice. There certainly could be no necessity to bring a possessory action under these facts when no personal occupancy or interference would be encountered in the taking of possession. Complainant denies ever having parted with possession of the property, and, moreover, under the terms of the contracts, she was entitled to possession upon default by the vendee. There is no question that, at the time of service of notice of forfeiture, defendants were in default of the payments.

The case of Lambton Loan, etc., Co. v. Adams, 132 Mich. 350 (93 N. W. 877), is relied upon to sustain the proposition that it was necessary for complainant to resort to one of three actions: (1) A suit in equity to foreclose the contract. (2) An action in ejectment. (3) Proceedings under the statute. In that case, however, the vendee was in actual and physical occupation of the premises, and the court said, speaking of the statutory proceeding to obtain possession:

“The statute was designed to provide a speedy and summary remedy for obtaining possession of lands held over contrary to these agreements, and in doing so it also sought to give the lessee or vendee another opportunity to retain the benefit of his contract by payments within five days, where the failure to pay was his sole default.”

The proceeding commented upon was purely a possessory action, and no such proceeding was necessary in the instant case.

We are of the opinion that complainant is entitled to the relief prayed for, and the decree is therefore affirmed, with costs against the defendants Samuel J. Lyons and Merton L. Rice; costs being waived as against the defendant Bessie C. Lyons, for the reason that she was only a passive agent in joining her husband in the quitclaim deed to Rice.

Steers, C. J., and Moore, MoAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.