text:
    FIRST NATIONAL BANK OF DURAND v. PHILLPOTTS.
    1. Conveyances — Executions—Sales—Rights of Purchaser— Partition.
    On a bill for the partition of certain real estate, complainant claimed title under a sheriff’s deed based upon an execution, levy, and sale of property -which the judgment debtor inherited from the estate of his father. The judgment debtor during the lifetime of the father had executed a certificate in the following form: “ This is to certify that I have sold all my claim and heirship on my father’s property, owned by him in the township of Pinconning, county of Bay, for the sum of (52,000) two thousand dollars.” After the judgment and after the execution and levy of complainant had been made and perfected, but before the sale, the judgment debtor quit-claimed to defendants. Reid, that,, as complainant had no notice of the instrument above quoted, defendants would be presumed to have taken subject to complainant’s rights, and its failure to file a bill within a year from the time of the levy would not bar its right to maintain a bill.
    2. Same — Deeds—Requisites—Statute of Frauds — Equitable Interest.
    The instrument above quoted is not a conveyance of land, as it contains no words of grant, no description of the property, and designates no grantee; at most, if not void under the statute of frauds, it is an inchoate agreement, enforceable in a court of equity, and would not affect the legal title.

      3. Executions — Levy—Notice—Liens—Priority—Statutes.
    Under Act No. 237, Pub. Acts 1889, a notice of levy filed with, the register of deeds is a claim upon the property sold upon execution from the time of such filing, and the lien thus obtained is valid against all grantees and mortgagees of whose claims the lienors shall not have actual or constructive notice.
    Appeal from Bay; Collins, J.
    Submitted November 12, 1908.
    (Docket No. 84.)
    Decided January 4, 1909.
    Bill by the First National Bank of Durand against Walter Phillpotts and Mary Phillpotts for the partition of certain real estate. Defendants filed an answer in the nature of a cross-bill to set aside an execution, levy, and sale. From a decree for defendants, complainant appeals.
    Reversed.

      A. H. McMillan, for complainant.

      Charles W. Hitchcock, for defendants.
   Montgomery, J.

This is a suit for partition of lands between complainant and defendant Walter Phillpotts, the defendant Mary Phillpotts being made a party because of her dower interest in the lands in question as widow of Harry Phillpotts. The lands consist of 320 acres in the township of Pinconning, Bay county. The facts necessary to an understanding of the case are these: The complainant on the 6th of June, 1904, obtained a judgment against Richard Phillpotts and others, and on the 25th of March, 1905, complainant caused a levy to be made upon the interest of Richard Phillpotts in and to the property above described, the levy being duly recorded. Richard Phillpotts was one of the two heirs at law of Harry Phillpotts, the defendant Walter Phillpotts being the other heir, and the defendant Mary Phillpotts the widow. On the 4th of April, 1905, after the levy of complainañt had been made and perfected, Richard Phillpotts and wifequitclaimed to the defendant Walter Phillpotts the property above described, together with another 40 acres. On the 39th of June, 1905, all the estate, right, title, and interest of Richard Phillpotts of which he was seised and possessed on the 35th of March, 1905, the date of the levy, in and to an undivided one-half of the premises in question, was sold at sheriff’s sale, and bid in by complainant for 1515.80. The sale appears to have been regular and the sheriff made a certificate of sale, which was duly recorded on the day of its date. In the meantime the estate of Harry Phillpotts, who died intestate, was probated, Fred W. Klumpp being appointed administrator. An inventory and appraisal was made, showing the total valuation of real estate and personal property to be $4,619. The administrator’s final account was filed on the 13th of April, 1906, and on the same day an acknowledgment of service of notice of hearing of the final account was signed by Mary, Richard, and Walter Phillpotts, and also papers consenting to said account and to the assignment of the residue of said estate. The final account of the administrator was allowed, and an order was made reciting that there was proof on file that due notice of hearing of said petition had been given, and determining that Mary Phillpotts, widow, and Walter Phillpotts and Richard Phillpotts, children, of said deceased, were the sole heirs at law of said deceased. This order assigned one-third of the personal estate to Mary Phillpotts, one-third to Richard Phillpotts, and one-third to Walter Phillpotts, and assigned the residue of the real estate to the heirs at law of said deceased — to Richard Phillpotts an undivided one-half, to Walter Phillpotts an undivided one-half, and to Mary Phillpotts dower in the whole. A copy of this decree was recorded in the office of the register of deeds. On September 39, 1906, the sale of the property to the complainant became absolute, and on October 9, 1906, the sheriff made a deed of all the estate, right, title, and interest which said Richard Phillpotts had or possessed on the 35th day of March, 1905, in and to an undivided one-half of the land, etc. On November 7, 1906, complainant filed the bill in the present case, asking for partition, and that the dower of the widow be ad-measured. The defendants filed an answer, in which they set up that on the 5th of April, 1904, Harry Phillpotts, the ancestor, paid to Richard Phillpotts the sum of $2,000 in consideration of his releasing to him all his interest in the estate of his father. The only written evidence of this alleged agreement is as follows:

“ Pinconning, April 5, 1904.
“ This is to certify that I have sold all my claim and heirship on my father’s property, owned by him in the township of Pinconning, county of Bay, for the sum of ($2,000) two thousand dollars.
“Richard Phillpotts.”

Complainant had no knowledge of this agreement or receipt previous to the commencement of the present suit. On the trial the proofs took a wide range, the complainant contending, among other things, that if such a transaction as’ that set up in the answer took place in 1904, it was colorable, and was a scheme to defraud the creditors of Richard Phillpotts, and was made during the pendency of the present suit. The court, however, found against complainant’s contention upon this question, and while there is much in the record to cast doubt on the testimony of the witnesses for the defense, we find it unnecessary to negative the case asserted in the answer.

Really the case gets down to this: As between a claimant under the written instrument set up in defendant’s answer and an execution creditor, which is entitled to precedence? The circuit judge determined the case in favor of defendants on the ground that the agreement of April 4, 1904, having been duly carried out, barred Richard Phillpotts from participating in his father’s estate until set aside by some competent court; that the proceedings in the probate court did not affect the title of Walter Phillpotts derived through his father from Richard Phillpotts ; and that, assuming that there was fraud in the transaction, yet as the complainant did not proceed to file its bill within one year from the date of the levy, it would be barred from now maintaining a bill. We think the circuit court was in error. This is clearly not a case of a bill filed in aid of execution, nor is it a bill to reach equitable interests of Richard Phillpotts in the property. The bill proceeds upon the view that the complainant is the owner of the legal title to one-half of this property. It is or is not the owner of such legal title, as certain legal questions which we shall consider later on shall-be determined. If it is the owner of the legal title, and if the levy was upon a legal interest, the conveyance subsequent to the levy by quitclaim deed by Richard Phillpotts to Walter Phillpotts would not compel a resort to equity to set aside that conveyance, as the title taken by Walter would be presumably subject to the complainant’s levy. So far as the defendant’s rights rest upon the undisclosed and secret transaction between Richard Phillpotts and his father in 1904, notice of which was not brought to complainant until after the time for filing a bill to set aside the transaction for fraud had expired, it is clear that complainant' was under no obligation to resort to equity, indeed could not have done so, within the time fixed by statute, as he lacked the information. The instrument referred to and quoted above was clearly not an executed conveyance. Indeed in form it is not a contract at all, but a statement of fact. It is a certificate of what Richard Phillpotts had done. But it is wanting in many particulars as a grant or conveyance of land. It contains no words of grant; and, while on its face it relates to real estate, it describes no property and designates no grantee. Taking the most favorable view to the defendant, the most that can be said is that this instrument, supplemented by parol testimony, shows an incomplete inchoate agreement, and if the statute of frauds does not render it wholly void, it at most would create an equity enforceable in a court of equity, and would not affect the legal title to the estate, which vested in Richard Phillpotts at the death of his father. The duty is therefore cast upon the defendant to invoke the aid of a court of equity, rather than upon the present complainant, as appears to have been assumed in the court below. But this equity would not, under our recording laws, take priority over the right acquired by the complainant by a levy upon the interests of Richard Phillpotts. That the recording laws inure to the benefit of a purchaser from the heir whose deed is duly recorded in accordance with the requirements of the statute appears to be established by the clear weight of authority. See Martindale on Conveyancing, §. 286, Kennedy v. Northup, 15 Ill. 148, and Earle v. Fiske, 103 Mass. 491.

It is said in the brief of defendant’s counsel that complainant in this case was an execution purchaser, and was therefore not a bona fide purchaser for value, and not entitled to any notice. This is hardly an accurate statement of the law as it stood prior to the amendment of 1889. It is true that under the earlier decisions of the court, and before that amendment, a certificate of levy was held not to be notice to a subsequent purchaser. But this statute being Act No. 227, Pub. Acts 1889 (3 Comp. Laws, § 9224), amendatory of Act No. 5, Pub. Acts 1875, now provides for the filing of notice of levy with the register of deeds, and further provides that, upon said notice being filed, such levy shall be a lien thereon from the time when such notice shall be deposited. And the lien thus obtained shall from the filing of said notice be valid as against all grantees and mortgagees of whose claims the party interested shall not have actual or constructive notice. As was said in First Nat. Bank of Cooperstown v. State Sav. Bank of Ionia, 130 Mich. 332, this statute scarcely requires construction. The language could not be more plain or unambiguous. The purpose was to change the rule which had previously existed, and to give a levy under an execution the same priority accorded to a conveyance duly recorded. See, also, Gardner v. Mason, 130 Mich. 436, where the rule was again affirmed, and the case of Campbell v. Keys, 130 Mich. 127, which distinguishes between an execution levy and an attachment levy in this regard, pointing out that the attachment statute has not been changed, as has been the statute with reference to execution levy. Upon this question the case cited by counsel for complainant (Gary v. Newton, 201 Ill. 170) is quite in point. The case was very similar to the present in other respects. A levy was there made upon real estate as the property of James Frederick Gary, one of the heirs of Thomas E.-Gary. The other heirs of Thomas E. Gary asserted an agreement by which James Frederick Gary, for a consideration, had relinquished by parol his right to heirship in his father’s estate. The court say of this agreement:

. “ If the oral agreement be considered as valid and binding, then he held the legal title to an undivided one-seventh of the property in trust for the benefit of his brothers and sisters, the other six heirs of Thomas E. Gary. The trust, upon which he thus held the title when the judgment liens were acquired, was a secret trust, undisclosed by anything upon the records, and of which the judgment creditors here concerned had no notice. Inasmuch as they had no notice, that secret trust cannot be enforced as against them. A bona fide purchaser of the legal estate —and the judgment creditors here are to be .regarded as bona fide purchasers — will be protected against the prior equitable title of another, of which he had no notice; and, although an heir, holding the legal title to an interest in property by descent, may so hold it in trust for others, still a third person may acquire the title from him, if such third person has no notice of the trust, and acts in good faith. Robbins v. Moore, 129 Ill. 30. After the death of the original owner, the apparent legal title is in the heir; and the policy of the law, which is to make patent all legal titles to lands, so far as practicable, that strang-' ers may safely purchase, equally requires that the bona fide purchaser from the heir should be protected. * * * If, therefore, the agreement set up in the bill in this case should be enforced, it would lead to the inequitable result of postponing the liens of the judgment creditors to a secret, unrecorded trust, of which they had no notice. A court of equity will not enforce such an agreement as that which is here under consideration, under the circumstances thus indicated.”

It becomes unnecessary to determine as to the effect of the determination of the heirs or of the order for distribution of the estate by the probate court. For the reasons we have given, the complainant was vested with a title which is entitled to priority over that of Walter Phillpotts, and it follows that the decree must be reversed, with costs of both courts, and a proper reference made to determine whether partition is possible.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    McPHERSON v. BYRNE.
    1. Gifts — Gifts Causa Mortis — Bona Fides — Burden of Proof.
    In an action of trover by an administrator against a person who occupied the position of confidential and spiritual adviser, and claimed the property as a gift causa mortis, the burden of proof to establish such gift is upon the donee.
    2. Same — Charities—Purpose—Evidenoe—Suffioienoy—Appeal and Error.
    In such action, where the evidence, examined as a whole, discloses an attempt to make a gift for charitable purposes with the particular charity left wholly indefinite, and on the trial defendant's counsel conceded that if the claimed gift was not absolute to defendant it could not be sustained, there was no question of fact to be submitted to the jury, and error in the charge as given will not be considered.
    Error to Kent; Perkins, J.
    Submitted November 13, 1908.
    (Docket No. 47.)
    Decided January 4, 1909.
    Trover by Peter W. McPherson, administrator of the estate of Ann Yan Dyke, deceased, against James J. Byrne for the conversion of certain certificates of deposit claimed as a gift. There was judgment for plaintiff, and defendant brings error.
    Affirmed.'

      McKnight & McAllister, for appellant.

      Maher & Barnard, for appellee.
   Montgomery, J.

This action is brought by the administrator to recover of the defendant the value of three certificates of deposit, amounting to $2,060, which were delivered by the deceased, Ann Yan Dyke, prior to’ her death, to the defendant. The defendant is a priest of the Roman Catholic Church, and was in charge of the church at Parnell, Mich., where deceased resided-. She was a communicant of the church. A few days before her death, and while in her last sickness, she delivered the certificates in question to the defendant. He has used certain of the proceeds to pay funeral expenses and for a monument for the deceased. The plaintiff recovered a verdict at the hands of a jury.

The defendant claimed that these certificates were delivered to him as a gift outright, and without any limitation; unless it were that he should pay the funeral expenses of the deceased. The circuit judge correctly charged the jury that, where a gift is claimed to have been made to a spiritual adviser of a person in extremis, the burden of proof to show the good faith of the transaction rests upon the donee. - It is claimed, however, that the circuit judge in his charge to the jury required something more than the burden of proof to sustain the claim of the defendant. It is also claimed that error was committed in permitting plaintiff’s counsel to cross-examine the defendant in such a manner as to create a religious prejudice against him, and also that the charge of the court was argumentative and misleading in other respects. That the burden of proof in such a case as this rests upon the one occupying a confidential relation, is clearly settled by the authorities. See In re Bromley's Estate, 113 Mich. 53; Ross v. Conway, 92 Cal. 632.

The only evidence offered to show the gift in this case, and to show the want of undue influence, was that of Julia Toohey. It appears that a proceeding was instituted some two years after the death of Mrs. Van Dyke by Agnes Quillan, a niece, claiming that Mrs. Van Dyke left $1,000 of the money transferred to him in trust for her. In this proceeding Mrs. Toohey was a witness, and testified that she was present at the time this transfer was made; that deceased called to her and asked for a little handbag that had some papers in, and requested her to hand it to Father Byrne, who sat by her bedside. She further testified:

“A. I heard her say she was giving them all to him for charitable purposes. She wanted him to do whatever was best, to give them to charity; and he wanted to know-if there was any left if he should give some to her relatives, her brother, etc., and she said ‘No;’ she had given them enough. And she had told that to me many times too. She said what little she had she wanted it for masses and charitable purposes and for expenses, different expenses, doctor bills and funeral purposes, etc.
‘ ‘ Q. She wanted him to use it for charitable purposes ?
“A. Charitable purposes.
Q. As in his judgment—
“A. As in his judgment, just as he wished, as he decided.”

On cross-examination she was asked:

“Q. What she said to him was, he was to pay her funeral expenses and doctor bills ?
‘ ‘ A. All expenses; yes.
Q. And the rest of it he was to use for charity ?
“A. Yes, sir.
Q. He was not directed to use it for anything else than charity ?
‘ ‘ A. Whatever he desired in the charitable line. And she told me after he went out that she hoped he would do so, and she trusted he would.
Q. And it was altogether a matter of charitable purposes that she was leaving the money to him for ?
l‘A. Yes; paying up her debts and bills.
Q. Paying up her debts and charitable purposes?
“A. And the monument he got.”

We, of course, recognize that this witness might change her testimony and now state the facts differently in such a way as to leave the question of fact a question for the jury. The question is: Did she do so ? On this trial she testified on direct examination:

“Q. What did she say to him about it ?
“A. She said she wanted him to have that money; she was giving it to him.
“Q. Did he say anything to that ?
“A. Yes; he made answer, and says: ‘Well, won’t you leave some to your brother Mike?’ ‘No,’she had given her relatives enough during her life, she wanted that for him. ‘ Well,’ he says, ‘ what will I do with it ? ’ ‘Well, just as you please. Do with it just as you wish.’
“Q. Is that about all the conversation concerning the certificates ?
“A. Well, I guess they talked a little more about that, a little more about it, but it did not concern very much.
“Q. Do you recall anything further that was said about it ?
“A. No; I heard him say he would use it for charitable purposes or just as she wished. She said to him to do as he wished with it, charitable purposes or whatever he had a mind to put it to.
“ Q. Do whatever he had a mind to ?
“A. Yes; and to pay her expenses.”

On cross-examination her attention was called to the testimony which she had given on the former hearing between defendant and Agnes Quillan, and she testified that her recollection at that time was as good as on the present trial, and that what she then testified to was true, as she supposed and believed, and answered the question, “ Now, you mean by that, don’t you, that she said he was to use that money for charitable purposes ? ’ by, ‘ Of course, he spoke to her that way.” On redirect examination she was again asked to state the transaction, and she stated it as follows:

“A. She took them out, and she told him then, explained to him: ‘ This is for you. * * * This is for you, Father Byrne.’ And, if I am not mistaken, he says: * For who ? ’ ‘Yes,’ she says, ‘ I am going to give this to you.’ And he says, ‘Are you going to leave a little of this here to your brother Mike?’ She said: ‘No; I left — I give them all my lifetime, and I intend to give what I have left after my death to you, to do as you wish with it.’ ‘Well,’he says, ‘ I suppose for charitable purposes ? ’ She says, ‘Yes; just as you desire. Use it for charity, just as you wish.’
“Q. That was all she said ?
“A. Of course, there was a little more. Charity was spoken about and they spoke about certain things there, and I guess fixed it right up.
“Q. Something said about the expenses ?
“A. Yes; there was said about the expenses too. Of course, I repeated that before. She said: ‘ Pay all my expenses when I die.’
liQ. After she made the statement that she wanted her expenses paid, did she say anything then with reference to the rest'of it?
“A. No; I don’t think she did. She didn’t say any more.”

Taking this testimony as a whole — and it should be so read — there is no apparent conflict between the testimony on the trial between defendant and Agnes Quillan and that given on the present trial. She concludes her statement as to what the conversation was by a distinct statement that deceased said to defendant in respect to his suggestion that he supposed the money was to be used for charitable purposes:

“Yes; just as you desire. Use it for charity, just as you wish.”

The transaction cannot be distorted into anything other than an attempt to make a gift for charitable purposes with the charity wholly indefinite. On the trial it was conceded by defendant’s counsel that if the gift in controversy was not for the defendant’s own use, but was for charitable purposes only, without naming the charitable purposes for which the funds were to be used, it could not be sustained as a gift. In view of this concession, we think no question of fact was left to be submitted to the jury, and it becomes unnecessary to consider the errors alleged in the charge of the court. _

The correct conclusion was reached, and the judgment is affirmed.

Ostrander, Hooker, Moore, and Me Al v ay, JJ., concurred.


text:
    CARRIER v. EMMET CIRCUIT JUDGE.
    1. Mandamus — Bill of Exceptions — Settlement—Extension of Time — Abuse of Discretion.
    Mandamus will not issue to compel the circuit judge to settle a bill of exceptions after the expiration of the time provided by rule, where an examination discloses that he did not abuse his discretion in denying a motion for such extension.
    2. Pleading — Notice—Sufficiency—Waiver.
    Where, after questioning the sufficiency of a notice for settle- ■ ment of the return of respondent in mandamus proceedings, relator flies a reply brief and enters no motion to dismiss, the court will treat the return as properly before it.
    Mandamus by Edwin B. Carrier to compel Frank Shepherd, circuit judge of Emmet county, to' vacate an order denying a motion to extend the time for settling a bill of exceptions.
    Submitted October 14, 1908.
    (Calendar No. 23,047.)
    Writ denied February 2, 1909.

      T. Rogers Lyons, for relator.

      Halstead & Halstead, for respondent.
   Montgomery, J.

This is an' application for a mandamus to compel the circuit judge to enter an order extending the time within which to settle a bill of exceptions. The case in the circuit was brought against ten defendants. One defendant appeared by Pailthorp & Hackney, attorneys, and four of the defendants by Halstead & Hal-stead. A verdict was rendered for the defendants on September 7, 1907, and the plaintiff was given until the first day of the January term, namely, January 6,1908, to settle a bill of exceptions. No formal notice of a purpose to settle a bill of exceptions was served within the time limited, but on the 23d of December a letter was written to Halstead & Halstead, and also one to Pailthorp & Hackney, by the plaintiff’s attorney, as follows:

“I serve upon you herewith the following papers: The original bill of exceptions in the Carrier v. Blaine case. This bill may be amended, and when amended we may agree upon a day of settlement before the court, or we may be able to agree upon the necessary amendments, and agree to settle without the necessity of a day before the court. This copy I serve upon Mr. Halstead. I also hand you for your collective use the full stenographer’s notes of the trial. Please consider these served, as I can do no better. These I inclose to Mr. Halstead. I also serve copy of bill upon Mr. Pailthorp herewith. Please acknowledge receipt, and notify me if you will serve me with amendments with a view to agreeing upon a day to settle or stipulate a settlement, or will it be necessary for me-to serve notice for settlement in the regular way. If so, will you please provide a day, and I will meet your convenience.”

No reply to this letter was received from Halstead & Halstead. But on December 26th Messrs. Pailthorp & Hackney wrote as follows:

“We have received your letter of the 23d inst. containing your proposed bill of exceptions. We will examine the exceptions, and make such suggestions to amend as we may deem proper as soon as we receive the stenographer’s minutes, and will then let you know what they are.”

No further proceedings were taken by either of the defendants’ attorneys, and plaintiff’s attorney took no further steps until the 3d of March, 1908, when he wrote the presiding judge, Hon. Frank Shepherd, asking that a time be set for the settlement of a bill of exceptions. He replied that the letter was received just as court was about to adjourn at Petoskey, and that the next term would begin April 13th, and in the meantime he (the judge) would be at Cheboygan. Relator’s attorney then served a notice of settlement of bill of exceptions for April 13, 1908, at which time the attorneys for defendants appeared and opposed the settlement of the bill. The circuit judge declined to settle the bill, and the relator’s attorney later, and on June 22, 1908, presented a motion for an extension of time in which to settle a bill of exceptions, setting up by affidavits the facts above stated. This motion was denied, and the present proceeding is for an order vacating the order denying the motion and directing the entry of an order extending the time to settle the bill.

It appears that Halstead & Halstead, attorneys for four of the five defendants, failed to reply to the letter of the relator’s attorney of December 23, 1907, and that, as a matter of fact, no steps were taken by Pailthorp & Hackney to propose amendments for more than four months after the receipt of the letter. In the meantime relator’s attorney did nothing to facilitate the settling of the bill. If the clients of Pailthorp & Hackney were the only ones concerned in the matter, the plaintiff’s attorney might be held justified in this delay. But, unfortunately for his position, they were not. There were four defendants who in no way consented, unless their silence be consent, to any extension of time, or any delay beyond the time fixed by the court. The rules of the court were not observed, and we cannot say that it was an abuse of discretion on the part of the circuit judge to refuse, under these circumstances, to give a further extension of time. The case is ruled by Lake Shore, etc., R. Co. v. Branch Circuit Judge, 116 Mich. 399.

A question as to the sufficiency of the notice for settlement of the return of the circuit judge is raised; but, after criticising the practice, counsel for relator files a reply brief, and has entered no motion to dismiss the proceedings. We, therefore, treat the return as properly before us.

Under the peculiar circumstances of this case no costs will be awarded to the respondent.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    TOWNSHIP OF ECORSE v. DETROIT, MONROE & TOLEDO SHORT LINE RAILWAY.
    Highways and Streets — Railroads—Crossings—Construction.
    On a bill to enjoin a railway from crossing a highway, it appeared that defendant had secured permission of complainant’s commissioner to cross at a certain grade, and had been ordered by the State railway crossing board to make an overhead crossing of other railroads adjacent to said highway, and that complainant had knowledge of, and took part in, the proceeding when the overhead crossing was ordered, and made no protest until the work was nearly completed. Held, that complainant under these facts could not object to the crossing on the ground of lack of defendant’s authority, and that the decree in all respects grants all the relief to which it is entitled under the pleadings and proofs.
    Appeal from Wayne; Brooke, J.
    Submitted October 15, 1908.
    (Docket No. 83.)
    Decided February 2, 1909.
    Bill by the township of Ecorse and another against the Detroit, Monroe & Toledo Short. Line Railway and another to enjoin the crossing of a highway. From the decree rendered, complainants appeal.
    Affirmed.

      James H. Pound, for complainants.

      Brennan, Donnelly & Van De Mark, for defendants.
   McAlvay, J.

Complainants, claiming that defendant railway company was illegally building an embankment across Pleasant avenue, one of the principal highways in said township, seven feet higher than the grade of said highway, for the purpose of making a roadbed and laying its tracks across said highway, filed the bill of complaint in this case, and secured a temporary injunction. Defendant Reaume was a former highway commissioner of complainant township. Defendant railway company answered the bill, setting forth that it was a Michigan corporation, organized under the general railroad laws of the State, and was authorized to cross said highway by a permit duly granted by Highway Commissioner Reaume five feet above grade under certain restrictions, also that it had been ordered by the railroad crossing board to make an overhead crossing over the tracks of the Wabash and Michigan Central railroads, notwithstanding the combined efforts of said defendant and the complainant township to secure a grade crossing; that, in constructing its roadbed across said highway, it is following the plans and specifications of the work ordered and approved by the crossing board, and within the authority of the permit lawfully given by Reaume, highway commissioner, ánd has not obstructed the highway. Upon a hearing a decree was granted complainant, directing defendant railway company to reduce the height of its roadbed at this highway crossing so that from the center of the street grade to the top of the rails should not exceed six feet, and providing for the approaches, the width of the road crossing, the planking between the rails, and the character of the construction and surface of the approaches and guard rails on each side thereof. Complainant has appealed, claiming that no lawful authority was éver given to cross this highway.

From an examination of the entire record we do not think it is necessary to determine whether the permit of the highway commissioner was necessary to allow defendant company to cross this highway. It appears as a fact that the complainant’s township board had knowledge of this crossing, was in consultation with defendant and the State crossing board at the time an overhead crossing was considered, and without protest allowed this work to proceed until the roadbed was nearly finished, before any steps were taken to prevent the crossing. It appears from the record that the dispute arose not because of crossing the highway, but because of the excess in height of the embankment over five feet. The testimony of members of the township board shows that with the crossing five feet high, and proper approaches and road construction, the board would be satisfied. The trial court inspected this crossing, and made a decree warranted by the proofs. It in every respect grants all the relief complainant is entitled to under the pleadings and proofs. The height of the crossing is reduced to six feet, instead of five, doubtless because from the record such height would make a safer crossing than a lower one, which would require a steeper grade of the railroad track in approaching from one way. .

The decree is affirmed, with costs.

Blair, C. J., and Grant, Hooker, and Moore, JJ., concurred.


author: Blair, C. J. Hooker, J.

text:
    DETROIT LUMBER CO. v. AUXILIARY YACHT "PETREL."
    Certiorari — Appeal and Error — Final Judgments — Remedy.
    ' The writ of certiorari is not favored and will be refused when there is another adequate remedy; and a judgment dismissing a proceeding under the water-craft act (chapter 298, 8 Comp. Laws) for the reason that claimant had failed to prove that at the time of giving notice of his claim the owners were indebted to the contractor, is a final judgment, and the remedy by appeal provided by the statute is adequate.
    Proceedings under the water-craft law by the Detroit Lumber Company against the auxiliary yacht “Petrel.” There was judgment for defendant, and petitioner brings certiorari.
    Submitted November 25, 1908.
    (Calendar No. 23,219½.)
    Writ dismissed February 2, 1909.

      Emanuel T. Berger, for petitioner.
   Blair, C. J.

The proceedings in this case were instituted to, enforce a demand against a water craft, pursuant to the provisions of chapter 298 of the Complied Laws, sections 10788-10836, inclusive. At the conclusion of claimant’s proofs, the circuit judge dismissed the proceedings and awarded judgment in favor of defendant for the reason that claimant had failed to prove that at the time of giving notice of his claim the owners of the craft were indebted to the contractor. Claimant applies to this court for the writ of certiorari to review this judgment.

We are of the opinion that the applicant has misconceived its remedy. The judgment is clearly a final judgment upon the merits, and the remedy by appeal provided by the statute in such case is adequate. Sections 10823-10827, inclusive. From an early day it has been held by t.hifl court that the remedy by certiorari should not be favored, and would generally be refused when another adequate remedy existed. Farrell v. Taylor, 12 Mich. 113; City of Ishpeming v. Maroney, 49 Mich. 226; U. S. Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668; Detroit River Transit Co. v. Trust Co., 152 Mich. 91; In re Phillips, 154 Mich. 139. On the previous application of the petitioner for the writ of certiorari, it appeared that the circuit judge dismissed the claim, upon the ground that, the amount thereof being less than $100, the court did not have jurisdiction of the case. Detroit Lumber Co. v. Yacht Petrel, 153 Mich. 528. In that proceeding there was no determination upon the merits, but, on the contrary, the court held there was no jurisdiction to pass upon the merits of the claim. In such a case the writ of certiorari was the most appropriate, if not the only adequate, remedy.

The application is denied.

Grant, Montgomery, and Ostrander, JJ., concurred.

Hooker, J.

I concur in the result reached by the Chief Justice, but I do not concur in the view that certiorari would lie at an earlier stage in the proceedings. It is true that after a dismissal of this case, upon the ground that the amount involved was not sufficient to confer jurisdiction, the question was reviewed upon certiorari and the “judgment” reversed, and a “new trial ordered.” No objection was taken to the regularity of the proceeding, and the question was not discussed.

The practice cannot therefore be considered established by that case. We have said in the case of People’s Ice Co. v. Steamer Excelsior, 43 Mich. 336, a case which arose under this law, that— '

“The proceedings are special and different in some respects from either legal or equitable cases. Where there is no common-law form of review, or where if there is one it is not resorted to, the conditions and form of appeal depend entirely upon statute,' and cannot be changed or aided by any judicial action.”

The trial in this court is de novo, upon an appeal and after a method prescribed in the statute, 3 Comp. Laws, § 10823. As we have said in the case cited, this is “a special proceeding differing both from an action at law and a suit in chancery.” That being so, the only right to an appeal is to be found in the statute itself, as we said in Waterman v. Bailey, 111 Mich. 571, i. e., “Appeals are statutory, and, in the absence of statutes, no right to appeal exists.” This statute provides one, but it does not provide for a certiorari at interlocutory stages or after final judgment upon dismissal. We have often held that the judgment upon nonsuit or dismissal of a cause is a final one from which error or appeal will lie, and there can be no question that appeal was open to the complainant in the former case. If it be said that the decision below did not involve the merits and therefore the case was not in a situation for this court to make a final decree, it does not follow that appeal was not the remedy. In such case this court might or might not be able to make a final decree. If it should take the view of the circuit judge, affirming his action, the decree would certainly be final. If not, it would remand the case for further proceedings in accordance with the common practice in equity.

If we could consider this either an equity suit or an. action at law, certiorari would not lie, except if an action at law it might be resorted to under Act No. 310, Pub. Acts 1905. It may be said that this is an act in derogation of the common law, and one — like its prototype in chancery causes — which fosters dilatory proceeding, — a thing that is deprecated by our Constitution and laws,— without any considerable meritorious compensation. It should be strictly construed, and not applied to cases not * ‘ actions at law ” to which by its express terms it is limited. This is not an action at law, “but a special proceeding differing from an action at law.” People’s Ice Co. v. Steamer Excelsior, supra. A decision of this question is not necessary in the disposition of this cause, and is mentioned here for the reason that I am not prepared at this time to assent to the views expressed in distinguishing the present from the former case, and the further reason that the former opinion may be erroneously thought by some to have adjudicated the question.

Writ denied.


author: Ostrander, J.

text:
    BARBO v. JERU.

    1. Wills — Construction—Respective Shares op Devisees and Legatees.
    Testator owned a 40-acre tract, and also part of a lot in the same section. His buildings were located upon the lot, though he supposed them to be upon the 40-acre tract, and he was apparently without knowledge that he owned such part of the lot. He gave to his daughter a one-third interest in the buildings, and also the 11$ acres upon which he supposed the buildings were situated. To a son he gave a one-third interest in the buildings, 1 acre near the buildings, and 13$ acres. To another son he gaye a one-third interest in the buildings, 1 acre near them, and the 13$ acres between the land given to his daughter and that given to the other son. Held, that the devise to the sons of an acre each near the buildings, and the bequest of an undivided one-third interest in the buildings to each, manifested testator’s intent that the .buildings should be a home for his daughter, and that the sons should have therein such an interest as would permit them also to make a home there, and that there should be no division of the buildings nor of their value.
    8. Same — Construction — Designation op Shares op Devisees and Legatees.
    It appearing that it was the intention of testator that his daughter should take the land on which the buildings were situated, the will is construed so as to give to her that part of lot 4 on which they stand.

      3. Homestead — Property Constituting — Separate Tracts.
    A devise to one in severalty of land upon which buildings are situated and to another of a one-third interest in the buildings will not support a claim of a homestead right in the land or buildings by the latter.
    4. Execution — Levy — Possession Notice op Eight Under an Unrecorded Deed.
    A judgment creditor levied upon and sold the interest of the judgment debtor in two parcels of land. Later, he took out another execution and levied it upon the same lands. When the first execution was levied, the person in possession of the premises held a conveyance of the interest of the judgment debtor in the lands to herself. Said deed having been set aside' at the suit of the judgment creditor because the conveyance was in fraud of her rights, and the levy and sale on execution having been held ineffective because of the vendee’s possession of the premises, the second execution is held to be a lien upon the premises for the amount of the judgment undiminished by the sums bid at the execution sale.
    Appeal from Menominee; Stone, J.
    Submitted November 9, 1908.
    (Docket No. 108.)
    Decided February 2, 1909.
    Bill in aid of execution by Mary Barbo against Frank Jeru, Joseph Jeru, George Jeru, and Agnes Jeru. Defendants Agnes and Frank Jeru filed an answer in the nature of a cross-bill making Alva L. Sawyer a party defendant, to correct an error in a deed, and to set aside the execution, levy, and sale. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      A. L. Sawyer, for complainant.

      Oummiskey & Spencer, for defendants.
    Complainant is a judgment creditor of defendant Frank Jeru, the judgment having been recovered May 11, 1906. She levied an execution issued upon the judgment upon all the interest of said defendant in the northeast quarter of the southwest quarter, and lot 4 in section 23, in town 35 north, of range 25 west, and a sale under the execution was made October 23, 1906, the first-described parcel being sold for $350 and the second for $650. A certificate of sale was issued. The execution was returned unsatisfied to the amount of upwards of $600. March 27, 1907, another execution was issued upon the said judgment, and was on that date levied upon all the remaining interest, legal and equitable, of the said defendant in and to the same lands. One Nicholas Jeru was in his lifetime owner of the said northeast quarter of tbie southwest quarter. It appears, also, that he was owner of the west 463 feet of lot 4, in the same section. Title to the land on lot 4 was acquired by occupancy. The buildings constituting the home of the said Nicholas Jeru were erected upon lot 4. They consisted of a large house used as a home, hotel, and saloon, with outbuildings. There are no buildings on the 40 acres. All parties agree that he supposed that the buildings were located on the northeast quarter of the southwest quarter. He died- testate, and apparently without knowledge that he owned by occupancy or otherwise any land on lot 4. The will probated was the second one made by Nicholas Jeru. From statements made by Nicholas it appears that in and by the first will he gave the house with its furnishings to his daughter. In the will which was probated he gave his daughter a one-third interest ‘ ‘ in all the buildings on the northeast quarter of the southwest quarter of section twenty-three,” also ‘ ‘eleven and one-third acres of said forty-acre tract. ” The following is taken from the will:
    “The northeast quarter of the southwest quarter section twenty-three (23) * * to be divided into three equal tracts of land, each containing 134 acres, this forty acres to be divided from east to west. The eleven and one-third (114) acres I bequeathed to my daughter being the one what the buildings are upon. To my son, Frank Jeru, I give, devise and bequeath one-third interest in all of the buildings on the northeast quarter of the southwest quarter of section twenty-three (23) * * *; one acre of land near the aforesaid buildings being in the first thirteen and one-third (134) acres or the one that aforesaid buildings are upon. Also to my son Frank thirteen and one-third (13^-) acres * * * being the tract along the south line of said forty. To my son, Joseph Jeru, I give, devise and bequeath one-third interest in all the buildings on the northeast quarter of the southwest quarter of section twenty-three (23) * * *, one acre of land near the aforesaid buildings being in the first thirteen and one-third (13-J-) acres, or the one that aforesaid buildings are upon. Also to my son, Joseph Jeru, the remaining thirteen and one-third (13-J-) acres of the northeast quarter of the southwest quarter of section twenty-three (23) * * *, being the tract situated between the one bequeathed to my daughter, Agnes Jeru, and my son, Frank Jeru.”
    Pending the determination of the suit in which the aforesaid judgment was rendered, and under date April 10, 1906, Frank Jeru, who is unmarried but who had children, and at and before that time was living upon the premises, made a warranty deed, conveying to his sister, for a stated consideration of $300, “an undivided one-third interest in the northeast quarter of the southwest quarter of said section 23,” with the recital, “the above premises being the same one-third interest in the same property as bequeathed to me by the will of my father, Nicholas Jeru, reference to which said deed as so recorded for greater particularity is hereby had.”
    When the deed was made, both Agnes and Frank understood that by the will the buildings were given to Agnes. It is charged in the bill that Frank Jeru had no homestead interest in the property; that the conveyance to his sister was without adequate consideration, and made with the purpose on the part of Frank and his sister to defraud the creditors of Frank. The prayer of the bill is that the deed may be held to be void as against complainant, and be set aside and canceled; that a decree may be entered establishing the respective interests of the parties in the land; and that complainant may have such other and further relief as circumstances may require., Frank, George, Joseph, and Agnes Jeru are made parties to the bill. Agnes Jeru lived at home with her parents, and after the death of her mother took charge of the house, kept boarders, and cared for her father. Frank paid board to her for himself and his children. Joseph was married and lived elsewhere. George, his wife, and children lived with his father and sister at the time his father died. He was otherwise provided for in the will. They filed a joint and several answer, admitting the judgment, the levy and sale upon execution, the issuing and levying of the second execution. They admit that Nicholas Jeru was owner of all the land which has been described, and state that his title to the west 463 feet of lot 4 was acquired by actual, visible, notorious, and hostile possession for a period of more than 15 years, and that he had no title of record. They admit it was the intention of Nicholas Jeru to include in his disposition of his property the part of lot 4 which has been described; admit the execution and delivery of the deed by Frank to Agnés; say that Frank had at the time a homestead interest in the property which his father devised to him, and that it was the intention of Frank in conveying the property to his sister to convey all of the interest he had in all of the property left him by his father; that the failure to properly describe the property arose from a mistake of fact. Defendant Agnes Jeru alleges that at the time of making the deed by Frank, and at all times since, she was and has been in open, actual, visible possession of the premises, including lot 4 and the 40-acre tract. It is denied that the conveyance by Frank to Agnes was made to' defraud creditors or to defraud complainant. It is averred that the conveyance was made pursuant to an agreement between the parties entered into before the suit was begun; that upon the death of the wife of Frank Jeru in June, 1903, he committed to his sister the care of his three children; that she cared for them; that in January, 1906, in consideration of past services in the care of his children, and in consideration that said care should continue, Frank agreed to convey his interest in and to the premises, including the buildings and land, to Agnes. It is claimed that the interest of Frank Jeru in the premises was worth less than $1,500. Agnes and Frank claim the benefit of a cross-bill, ask that the purchaser at the execution sale be made a party defendant, that the description in the deed from Frank to Agnes may be corrected, that the certificate given at the sale upon execution may be canceled, that the subsequent levy be set aside, and that they have such other and further relief as is agreeable with equity. Later on, the purchaser at the execution sale entered his appearance. It appears from a stipulation filed in the cause that no money passed at the execution sale, but that the purchaser, A. L. Sawyer, holds the certificate of sale, first, for himself to satisfy his services as attorney for the complainant; second, if there is any interest in excess of the value of such services, it is held in trust for complainant. Defendant George Jeru disclaimed any interest in the property. The decree which was entered, and from which the defendants "have appealed, finds that Nicholas Jeru in his lifetime owned the 40 acres described, and also the west 463 feet of lot 4; that by his will title to the south 13J acres of the 40 passed to Frank, title to the north 13£ acres to Agnes, and the middle 134 acres to Joseph, and that all that part of lot 4 owned by Nicholas, together with the buildings, passed in equal undivided interests to Frank, Joseph, and Agnes; that Frank never acquired a homestead interest in any portion of said property. It is further found that the levies made under the first execution have no force as against the claim of Agnes derived from the deed from her brother, her possession at the time the levies were made being notice of all her rights in the land, and that the sales made to defendant Sawyer should be set aside; that the deed from Frank to Agnes should be set aside as made upon an inadequate consideration, and with knowledge on the part of both parties to the deed of the pendency of the complainant’s suit at law and her position as creditor of Frank; that complainant under her second execution acquired a lien upon all of the interest of Frank in all of said property, with the right to file this bill to test the validity of the deed from Frank to Agnes, and that she shonld be permitted to amend her second execution so as to include therein the amount bid at the sales made upon the first execution. It is therefore decreed that the sales to defendant Sawyer be canceled, that the second execution be amended to include the whole of the original judgment with interest, that said execution is a lien upon the interest of Frank Jeru in all of the property, and that it may be enforced as though originally levied for the full amount.

       Headnotes prepared by Ostrander, J.

   Ostrander, J.

{after stating the facts). All parties agree that the will should be construed so as to prevent partial intestacy; that Nicholas Jeru supposed, when he made his will, that the buildings were located on the northeast quarter of the southwest quarter of section 23, and that he intended to devise all of his property. It is contended, however, on the part of defendants, that in legal effect the will severed the buildings from the land, that the devises of real estate are in severalty, and that in the buildings alone is there an undivided interest created. This contention would seem to support the ruling that Frank Jeru had no homestead interest in the property.

It is impossible to read the will, in the light of the testator’s surroundings, without bein£ impressed that he intended that the buildings should'be a home for his daughter, and that the other devisees should have in the buildings such an interest as would permit them, also, to make a home there as was necessary or convenient for themselves and for their children. The change made in the terms of the first will, the care manifested in his devise to Frank and to Joseph of an acre of land each, “near the aforesaid buildings,” the 2 acres so devised being taken from the equal one-third of 40 acres which would otherwise have been given to his daughter, and the bequest of an undivided one-third interest in the buildings to each, is evidence of this intention. It is incredible that he intended there should be a division of the buildings, or of the value of them, among the three devisees. Whatever the legal effect of what he did may be, the intention that common use should be made of the buildings seems to me to be clearly established by the will itself, in the light of surrounding circumstances. We are furnished with but one dimension of that part of lot 4 owned by the testator. Perhaps it is not material to know the other dimension, so long as we know that the buildings were located upon it. The intention of the testator cannot well be given effect unless we treat the land upon which the buildings stand as belonging to Agnes. The intention that Agnes should have the ownership and control of the land upon which the buildings are located is clear. As between herself and the other devisees, it should be treated as the controlling thing. The intention is not carried out by a construction of the will which gives to the devisees an undivided interest in the land upon which the buildings are situated. Complainant’s rights, acquired by her levy, affect proper construction of the instrument not at all. We construe the will as though the strip of lot 4 upon which the buildings are located was a part of the north one-third of the 40 acres. We enlarge the holding of Agnes by the extent of the strip, give to the other devisees an acre each “near the aforesaid buildings,” and leave the other provisions of the will to stand. It is clear that the judgment debtor had no homestead interest in the south 13£ acres of the 40 acres. For the purposes of a construction of the will, the land on lot 4 may be added to the land on the northeast quarter of the southwest quarter. But there is no connection, in fact or in law, between the interest of Frank Jeru in the south 134 acres of the 40 acres and his interest in the buildings and land on lot 4. Whether, his home in fact being with his sister, the interest acquired by him in the buildings and in 1 acre of land near them may be made the foundation for a claim of homestead, is, therefore, one of the questions presented. A homestead right is an interest in land. Michigan Mut. Life Ins. Co. v. Cronk, 93 Mich. 49. He can have no homestead interest in the land owned in severalty by his sister. So that, notwithstanding the evident intention of the testator, what he did will not support the right of the judgment debtor to a homestead in any part of the land. We agree with the learned trial judge in holding the deed from Frank Jeru to his sister to be void as to the complainant.

The decree of the court below will be modified so as to make it correspond with this opinion. Except as indicated, it is affirmed, but without costs to either party.

Grant, Hooker, Moore,' and McAlvay, JJ., concurred.


text:
    CUSTARD v. HODGES.
    1. Bills and Notes — Bona Fide Purchasers — Question for Jury. .
    In an action on a promissory note signed by defendants, co-partners, and 18 others, where an indorsement upon the note acknowledging payment in full from the copartners, defendants, had been erased and materially changed, and plaintiffs’ agent saw and carefully examined the note before purchasing, noticed the erasure and writing over it, and also the date of the note and indorsement. Held, that the testimony warranted the submission of the question of the good faith of the purchasers to the jury.
    3. Same — Bona Fide Purchasers — Burden of Proof.
    In order to destroy the bona fides of the holder of commercial paper, circumstances which ought to excite the suspicion of a prudent, careful person are not sufficient, unless the circumstances or suspicions are so cogent and obvious that to remain passive would amount to bad faith. And under the facts above stated a case was made out by defendants which operated to shift the burden of showing good faith upon plaintiffs.
    3. Same-Question for Jury — Instructions.
    The charge to the jury must be considered as a whole; and where, in such action, under the evidence above stated, a charge that if defendants were originally by agreement with the payee only to pay the amount claimed by them, and before delivery paid that amount, and the note had been indorsed showing that payment in full had been received from them, and that if this indorsement was later changed by one of the defendants without the other’s knowledge, and the change was apparent, then plaintiffs could not recover, was warranted except as to the reference to “the other’s knowledge,” which was not prejudicial.
    Error to Grand Traverse; Mayne, J.
    Submitted November 11, 1908.
    (Docket No. 150.)
    Decided February 2, 1909.
    Assumpsit by Wesley P. Custard and Alexander Custard, copartners as Wesley P. Custard & Brother, against Giles E. Hodges and Hartwell P. Glidden, co-partners as Hodges & Glidden, upon a promissory note. There was judgment for defendants, and plaintiffs bring error.
    Affirmed.

      John W. Patchin and William P. Crotser, for appellants.

      Pratt & Davis, for appellees.
   McAlvay, J.

This is an action in assumpsit upon a certain promissory note executed by defendants Hodges and Glidden, as copartners, and 18 others, to John Crawford, July 2, 1903, due September 1, 1906, with interest at 6 per cent. This note was sold and assigned by Crawford to plaintiffs August 15, 1903, and indorsed by him: '* Payment guaranteed.” In this transaction of purchase Dr. J. B. Martin of Traverse City acted as agent of plaintiffs. The note in suit and two others amounting to $2,200 were given by the signers in payment of a registered French stallion purchased by them from Crawford. Two of these notes of $800 each were signed by defendants. The third note of $600 they did not sign. Crawford’s agent who negotiated the sale of his horse to the 19 purchasers was assisted by defendant Hodges in making such sale and forming a company to handle the horse, and received $100 for such services. On July 3, 1903, the day after the execution of the notes by Hodges and Glidden, defendant Glidden, after seeing that the notes in terms made all liable for the full amount, refused to allow them to go out of the office until payment of the sum of $100, the extent of the liability which it has been agreed that each signer assumed in order to be released therefrom, and then paid that amount. Then, by agreement, there was indorsed by Hodges upon each of the notes they had signed the following: “July 3, 1908. Received payment in full from Hodges & Glidden on the within note.” The notes were then given to Crawford’s agent, who later delivered them to Crawford. Defendant Glidden swears that he refused to deliver the notes to Crawford until this indorsement was made with his consent. At the time this indorsement was made and the money paid, the following certificate was given by Crawford’s agent to defendants:

“Capital Stock, $2200.00. No. shares 1. Certificate of Stock. This certifies that we have received of Hodges & Glidden their cash for one hundred dollars, in full payment for their one share of one hundred dollars each in the French Coach Stallion. Name, ‘Xino.’ No. 2620.
“ Dated at Fife Lake, County of Grand Traverse, State of Michigan, this second day of July, 1903.
“John Cbawford.”

This was given according to the agreement that each signer of the notes was liable only for $100, and was to own one share in the company gotten up to handle this horse. On or about August 1, 1903, Crawford took the notes in question and other notes to a law firm in Traverse. City to sell for him. About August 15, 1903, Crawford brought these two notes back to Hodges, stating that he had tried to sell them and found out they were indorsed “ Payment in full,” which he said canceled the notes. He requested that a change be made. He said it was a criminal offense in that form. Hodges said it was not the intention to cancel the whole note, but only to show the agreement, and that Hodges & Glidden had paid and were released, and, in substance, was willing to change it, and make it show the'agreement. After some discussion, the indorsement was then changed. Crawford erased the words ‘ ‘ Payment in full,” and Hodges wrote in the words “fifty dollars,” making the indorsement on each note as changed read: ‘ ‘ July 3, 1903, Received fifty dollars from Hodges & Glidden on the within note.” This change was made without the knowledge or consent of defendant Glidden. On August 10th or 11th, one of defendants’ attorneys brought these two notes to plaintiffs’ agent, Dr. Martin, at Traverse City, who was a relative of one of the plaintiffs, and acted for them at that place. Plaintiffs’ agent testifies that the indorsements as changed were then on the notes, that he examined them carefully, and that the erasure appeared just as at the time of the trial. Dr. Martin then wrote plaintiffs in regard to the matter, and on August 14th they sent him a check for $2,100. On the next day, August 15th, Dr. Martin telephoned to Crawford’s attorney that he had the check. The notes were brought over, and the two signed by defendants purchased by him for plaintiffs for $1,470 without inquiry or investigation of any kind. He refused to purchase the third note because not signed by defendants. The attorney divided ■his commission with plaintiffs’ agent. Plaintiffs did not see the notes until received from Dr. Martin after the transaction. Plaintiffs with their declaration furnished what purported to be a copy of the note sued upon. Defendants gave notice with their plea that the note was procured through fraud and false representations relative to a certain coach stallion, as to age, qualifications, registration, etc., and also as to the agreement as to liability for but $100, the payment of said amount and the release from liability by the indorsement, and that plaintiffs were not good-faith purchasers without notice. The case was tried before the court with a jury, and at the close of the proofs a motion to instruct a verdict for plaintiffs was denied. Under the charge given the jury returned a verdict for defendants. The errors assigned relate to portions of the charge as given by the court, the refusal to give certain requests, and the refusal to instruct a verdict for plaintiffs.

The principal question in the case is whether the testimony in the case warranted the submission of the question of good faith in the purchase of the note to the jury. It appeared without dispute that the agent of plaintiffs saw and examined these notes twice before he consummated the purchase. His testimony is that he examined the notes with care, noticed the erasure and the writing over it, also noticed the date' of the notes and of the indorsement. He knew defendants and their financial standing, and evidently knew the business in which they were engaged. He also had some knowledge of the other signers because he refused to purchase the note not signed by defendants. The notes were of considerable amount made by an unusual number of persons. They bore date July 2d. The indorsement was erased and rewritten, showing $100 paid July 3d by the only responsible signing parties. We have recited the facts and circumstances under which the notes were executed by defendants, the payment of their share, the indorsement relieving them from liability, the erasure, and the circumstances under which it was secured. We think that a case was made out by defendants which operated to shift the burden of showing good faith upon plaintiffs. Mace v. Kennedy, 68 Mich. 389; Goodrich v. McDonald, 77 Mich. 491; Township of Grant v. Township of Reno, 114 Mich. 41, and cases cited.

By the modern rule it is held that, in order to destroy the bona fides of the holder of commercial paper, circumstances which ought to excite the suspicion of a prudent, careful person are not sufficient, unless the circumstances or suspicions are so cogent and obvious that to remain passive would amount to bad faith. Detroit Nat. Bank v. Union Trust Co., 145 Mich. 656. The question is now one of good or bad faith. 7 Cyc. pp. 944, 945, and notes. It is also held that such “ circumstances of suspicion, or even gross negligence, are merely admissible as evidence tending to show mala tides, but do not of themselves preclude the holder from recovery.” ' 4 Am. &Eng. Enc. Law (2d Ed.), pp. 300, 301, and notes. In the case of Detroit Nat. Bank v. Union Trust Co., supra, this court has discussed this question of mala fides of a holder of commercial paper, and. has cited and digested the leading cases. Upon this question, the evidence showing the circumstances in the case at bar under which plaintiffs purchased this paper without making any inquiry was sufficient in our opinion to be submitted to the jury. The rule governing these cases is clearly stated in Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191 (10 L. R. A. 676), cited by this court in Detroit Nat. Bank v. Union Trust Co., supra. The case is an interesting one and many of the facts similar to those in the case at bar.

In concluding the opinion in Goodrich v. McDonald, 77 Mich. 493, this court said:

“We think the court left the only fact in the case to the jury, and they have found that the plaintiff was not a bona fide purchaser, under evidence tending strongly to show the fact.”

In the case at bar, in addition to the facts already referred to, there was evidence from which a jury might fairly conclude that plaintiffs’ agent had seen these notes before the indorsements were changed. He first saw them on the 10th or 11th of August. No sale was made until the 15th. The change was made about the 15th. A commission was divided between Crawford’s attorney and this agent. This question was not submitted to the jury. Whether it was requested by defendants does not appear. It would have been proper to have submitted it, and, as the case was submitted, it was a circumstance which the jury might consider upon the question of mala fides of plaintiffs. It follows that the court was not in error in refusing to instruct a verdict for plaintiffs. To make the defense offered, it was not necessary that the execution of these notes should be denied under oath. It was admissible under their notice given with the plea. The execution of this note is not in question. The defense sought to show circumstances under which in this case it was an act of bad faith to purchase this paper without investigation.

The court submitted the question of the good faith of the plaintiffs in this transaction. To give the entire charge of the court will not be necessary. But one of the errors assigned upon it is discussed by the appellants. It is contained in the following paragraph:

“ If you so find these facts that the defendants in this case were originally, by agreement with John Crawford, only to pay the sum of $100 under this note, that before the delivery of the note, or even after its delivery but before it passed into the hands of the purchaser, they, the defendants, by agreement and pursuant to the original agreement, paid the sum of $100 in full of their obligation, and had indorsed on a note the following: ‘ Received payment in full from Hodges & Glidden on the third of July on the within note ’ — that this indorsement was actually made as claimed by them, and later it was changed by erasure made by Mr. Hodges without the knowledge of Mr. Glidden, and made to read, ‘ Received $50 from Hodges & Glidden on the within note,’ and the erasure was apparent to anyone observing the note, then I charge you that the plaintiffs cannot recover in this case, and your verdict must be for the defendants.”

We have frequently said that the charge must he considered as a whole. This is an excerpt from a charge in which the court has stated at length the claims of the parties. It is claimed that the record does not show any authority from Crawford to warrant his agent in accepting a note with the original indorsement, and that such indorsement, if valid, would cancel the note. There was ample testimony, undisputed, as to the agreement as claimed by defendants. What occurred at the time the original indorsement was made has been stated. This agent at the time the money was paid handed defendants the certificate which was Crawford’s receipt. He delivered the notes to Crawford, who brought them back to defendant Hodges, not repudiating the agent’s authority, but because he could not negotiate them with those indorsements. All of this is undisputed. Crawford is not produced as a witness. The facts warranted so much of the charge as is referred to by this objection.

As to the second objection, we agree that the indorsement, if valid, would cancel the note as far as these defendants are concerned, and, if their evidence is credible, such was its purpose, effect, and intent. While it might appear to a stranger to the transaction without explanation a full payment of the note, yet its true meaning and intent could be shown.

Further objection is made that this portion of the charge amounts to an instruction that, if the change in the indorsement was made without Glidden’s knowledge, and the erasure was apparent to any one observing the note, the jury must find for defendants. In the charge the court had already given the substance of this paragraph several times with the exception of the words, “without Glidden’s knowledge.” We do not think that this was prejudicial, and would not mislead the jury when the whole charge was considered. As a matter of law, Hodges could not without Glidden’s knowledge or consent make a new contract relative to this transaction, which was outside of the scope of copartnership business. Defendants had paid their entire liability, for which they had been released by an indorsement made on a note which was afterwards erased and changed.

The controlling question in the case was whether the notes as they appeared to the plaintiffs’ agent required investigation and made it a matter of bad faith to buy without it. This was a question of fact properly submitted to the jury. The record does not disclose any reversible error.

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ. concurred.


text:
    APPLEBAUM v. GOLDMAN.

    1. Justices of the Peace — Pleadings — Common Counts in Assumpsit.
    While pleadings in justices’ courts, whether oral or written, are treated with liberality, a -declaration on the common counts in assumpsit will not support a recovery for the value of merchandise sold by an express, written contract, and paid for but not delivered.
    2. Pleadings — -Bill oe Particulars — How Treated.
    A bill of particulars is not a pleading; it may restrict but cannot enlarge the scope of the recovery permissible under the declaration.
    3. Justices of the Peace — Return on Appeals — Stipulations.
    In appeals from justices’ courts the return is the record from which the nature of the proceedings in that court is determined. And where it affirmatively-appears from the return and the docket entries that the plaintiff declared upon the common counts in assumpsit, and after verdict in the circuit court, and by stipulation it was made to appear that upon a file cover the justice had indorsed the additional words “especially for breach of contract,” it will not be assumed, no further or amended return having been procured, that the declaration was special.
    4. Same — Appeal and Error.
    Whether, if it affirmatively appeared that the issue tried in the circuit court was the same as that tried in the justice’s court and that no objection was made in justice’s court to the declaration, a ruling of the circuit court that the declaration was sufficient should be held to be error without prejudice, is not decided.
    Error to Wayne; Mandell, J.
    Submitted November 12, 1908.
    (Docket No. 129.)
    Decided February 2, 1909.
    Assumpsit in justice’s court by Isaac Applebaum against Hyman L. Goldman for breach of a contract for the sale of certain goods. There was judgment for plaintiff, and defendant appealed to the circuit court. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Robert M. Brownson (Robert M. Webster, of counsel), for appellant.

      A. J. G-roesbeck, for appellee.
    The contract made by the parties to this suit is evidenced by a writing of which the following is a copy:
    “February 12th, 1903.
    “Mr. H. L. Goldman,
    “City.
    “ Dear Sir: I hereby offer you for all the machinery seen by me at Clark avenue and M. C. R. R. consisting of three boilers, 100 H. P. engine and all the wood and iron planers, pulleys, shafting, etc., and from ten to twelve ton of iron in your yard including brick and frame building and all old iron on the buildings as inspected by me and all the attachments for same and guarantee the engine to be complete with all the attachments with the brass bearings belonging to same for which I understand was stolen and you to replace same also 3 smoke stacks for fifteen hundred ($1500) dollars spot cash. I am to take same away at my own expense. This must be accepted immediately or different arrangements will be made.
    “ Yours truly,
    “I. Applebaum.
    “ Accepted “H. L. Goldman.”
    It was fully performed by the plaintiff by payment of the purchase money. It is his contention that not all of the property purchased was delivered to him. He began suit in justice’s court, filing the following bill of particulars:
    “ To the value of the following articles bought upon express contract and not delivered:
    “ 6 foot power stave jointers, at $10____________$60 00
    1 large anvil_________________________________ 10 00
    1 vise----------------------------------------- 3 00
    30 iron and wood pulleys, at $1.00____________ 30 00
    1 left hand stave heading and shingle bolter. _ 35 00
    1 plough.------------------------------------ 5 00
    1 hayoutter__________________________________ 5 00
    6 circular saws, at $5.00______________________ 30 00
    3 saw arbors without frames, at $7.00_________ 21 00
    18 iron hangers, at $1.00...................... 18 00
    1 five feet wheel jointer...................... 50 00
    1 improved pendulous shingle and heading sawing machine........................... 75 00
    1 ton of scrap................................ 13 00
    1 cylinder saw------------------------------- 125 00
    Total--------------...............$180 00”
    He recovered judgment for $291. An appeal was taken to the circuit court, where plaintiff had a verdict and judgment for $480. At the trial the plaintiff was a witness, and having introduced the contract in evidence an objection was made to the introduction of any further testimony upon the ground that the plaintiff had declared upon the common counts in assumpsit; that it appeared that the action was for breach of an express contract, and in the absence of a special count assigning such breach no recovery could be had. The objection was overruled, and defendant excepted. It appears from the return of the justice that the plaintiff declared in an action of assumpsit on all the common counts, claiming damages of $500 or under. The defendant pleaded the general issue, with notice of set-off and recoupment. It appears further from a stipulation made and filed in the circuit court after the bill of exceptions was settled, found in the printed record, that upon the file cover used by the justice he indorsed:
    “Plaintiffs declare in an action of assumpsit on all the common counts, especially for breach of contract; claim • damages $500.00 or under.”
    The docket entry is:
    “ Plaintiff declares in an action of assumpsit on all the common counts; claims damages $500.00 or under.”
    Counsel who appeared for defendant in the circuit court did not appear for him in justice’s court and had no knowledge of the proceedings had in said cause in justice’s court except as gained from the return of the justice. Delivery of some of the goods which plaintiff claimed to have bought having been refused by a person in charge of the property, plaintiff obtained from defendant a written order to such person, which reads:
    “Detroit, Mich., March 3, 1903.
    “Dear Sir: Please deliver to Isaac Applebaum or bearer, all the pulleys, gauges, saws, machines, etc., which you have belonging to me, the same being in the barn and office.
    “H. L. Goldman.”
    Thereafter, a servant of the plaintiff, having loaded certain property upon a wagon preparatory to moving it away, was ordered by defendant to unload it, which he did, taking an inventory of what he so unloaded. The inventory corresponds with the bill of particulars. The evidence upon this subject, including the said inventory, was received over objection and exception, the objection being that it tended to vary by parol the terms of a written instrument, and this objection was based upon the proposition that by the terms of the written contract it appears that the property described in the plaintiff’s bill of particulars is not property described or referred to in the contract. Later, the court was moved to direct a verdict for the defendant upon the ground that no recovery could be had upon the common counts in assumpsit, and that the declaration was defective in not containing a special count. A motion for a new trial was made and wa§ denied. The reasons assigned for a new trial were that the verdict was against the weight of evidence; that it awarded plaintiff excessive and exorbitant damages; that the court refused to direct a verdict for defendant, refused to strike out testimony relating to the items of plaintiff’s bill of particulars not specified in the written contract, and refused to charge the jury as requested by defendant.

       Rehearing denied May 25, 1909.
      Headnotes prepared by Ostrander, J.

   Ostrander, J.

(after stating the facts). The articles claimed to have been sold and paid for, but not delivered, were part of a larger quantity, all being sold together for a lump sum. The suit is not' brought to recover any specific or proportional part of the purchase money which was paid, but to recover the value of the undelivered goods. It is in affirmance of the contract. The meaning of the common counts in assumpsit has been in modern times rather enlarged than restricted, but none of them is calculated to apprise the defendant of the nature of the plaintiff’s demand in this case, and under none of them is plaintiff entitled to recover. Pierson v. Spaulding, 61 Mich. 90, 94. See 2 Stevens’ Michigan Practice, §§ 322-331, and notes, where the decisions of this court are collected. Pleadings in justice’s court, whether oral or written, are treated with great liberality, and it is the general rule that a declaration good in justice’s court is good on appeal. Lynch v. Craney, 95 Mich. 199; Bradshaw v. McLoughlin, 39 Mich. 480; Soper v. Mills, 50 Mich. 75; Daniels v. Clegg, 28 Mich. 32, 46. It has been intimated, too, that the bill of particulars may be referred to to amplify or make certain a declaration in justice’s court. Nugent v. Teachout, 67 Mich. 571; Davis v. Gerber, 69 Mich. 246; Bush v. Brooks, 70 Mich. 446; but in each of these, as in other like cases, it was held that a recovery could be had under the common counts. A bill of particulars is not a pleading in any court. It may restrict, but cannot enlarge, the scope of the recovery permissible under the declaration, and the issue made by the pleadings is not changed by its amendment. Cicotte v. County of Wayne, 44 Mich. 173; Weston v. County of Luce, 102 Mich. 528. It is said that the declaration in the case at bar is special, that the indorsement upon the file is notice of this; that in any event the defendant was apprised of the issue to be tried and tried it in justice’s court without objection. In appeals from justice’s court the return of the justice is the record from which the nature of the proceedings in justice’s court is determined, when the pleadings are oral. The practice does not permit the return to be amended, after verdict, by stipulation of the parties, although such a stipulation, brought upon the record, might perhaps in some cases be treated as an admission. But it is a sufficient answer to the contention of the appellee to say that it does not appear from the return, from the docket entries, or from the indorsements referred to, that the declaration was, or was intended to be, special. It cannot be said, as matter of law, that the issue tried in justice’s court was the same issue tried in the circuit court. We have no doubt that it was, in fact, the same issue. Whether the objections made at the circuit were also made in justice’s court, we cannot know. Much as we regret the situation, we have no alternative except either to refuse to apply settled rules or to reverse the judgment. It is reversed; and a new trial granted.

Montgomery, Hooker, Moore, and McAlvay, JJ., concurred.