text:
    ATLANTIC DYNAMITE CO. v. ROPES GOLD & SILVER CO.
    Labor Liens — Priority—Mines and Minino.
    The provision of 2 How. Stat. § 8408, that laborers in mines shall have liens for wages upon all the corporate property, which shall take precedence of all other debts, liens, or mortgages, is not restricted, so as to render labor liens inferior to a mortgage prior in point of time, by the further provision of the same statute that such liens “may be proceeded on, enforced, and collected * * * in the same manner, and under the same regulations, limitations, and conditions, as near as may be, as are herein provided for the enforcement and collection of other liens.”
    Appeal from Marquette; Stone, J.
    Submitted October 20, 1898.
    Decided January 20, 1899.
    Creditor’s bill by the Atlantic Dynamite Company against the Ropes Cold & Silver Company. The Ishpeming National Bank and Henry Johnson and others came in under the decree, and established claims against the defendant. The claims of Johnson and others for labor were subsequently declared a first lien on defendant’s property, and from that decree the claimant bank appeals.
    Affirmed.

      H. O. Young,, tor appellant.

      Thomas J. Dundon, for appellees.
   Long, J.

The Atlantic Dynamite Company filed a creditor’s bill against the Ropes Cold & Silver Company, a'mining corporation under the laws of this State, and engaged in the mining of gold and silver in the Upper Peninsula. The defendant, the Ropes Cold & Silver Company, answered, admitting the allegations of the bill, and a decree was entered sequestering the property of the corporation to pay its debts, and providing that all persons having claims against it be permitted to file the same with the register of the court, and become parties to the suit. Under the decree, the defendants Henry Johnson and others filed claims for labor, which were allowed as labor claims, amounting to $3,467.58. The claim of the Ishpeming National Bank, amounting to $8,069.20, secured by two mortgages upon the real and personal estate of the Ropes Gold & Silver Company in process of foreclosure, was filed and allowed. After the allowance of all claims, the defendants Henry Johnson and others filed a petition praying that their claims might be decreed a first lien upon the property, and have precedence of the mortgages of the bank. It appears that the mortgages were given for moneys advanced to the Ropes Gold & Silver Company to pay for labor and for merchandise delivered to the laborers of that company, under an agreement with the company and the laborers; and all such advances, exceptan open account of $686.27, were made long before the labor was performed for which the claim was allowed. Upon the hearing below, the court decreed that the labor claims of Henry Johnson and others should have precedence over the mortgages. The Ishpeming National Bank appeals.

The only question presented is whether the labor claims have such precedence. Section 8408, 2 How. Stat., provides :

“ Every person who shall furnish or perform any labor for any corporation organized for the purpose of mining, smelting, or manufacturing iron, copper, silver, or other ores or minerals in the Upper Peninsula of this State, and every bona fide holder of any draft or order for the payment of money due for any such labor, issued or drawn by an officer, clerk, or agent of any such corporation, shall have a lien for the amount due thereon or therefor upon all the real and personal property of such corporation lying and being in the said Upper Peninsula, which said lien shall take precedence of all other debts, judgments or decrees, liens or mortgages, against such corporation, except liens accruing to this State for taxes, fines, or penalties; and every such lien may be proceeded on, enforced, and collected out of such real and personal property, or either of the same, in the same manner, and under the same regulations, limitations, and conditions, as near as may be, as are herein provided for- the enforcement and collection of other liens on real or personal property, as the case may be: Provided, that in the enforcement of any lien provided for in this section, it shall not be necessary to file, prove, or produce any written contract relative to the labor on which such lien is based.” Laws 1867, Act No. 201.

Its language is plain and unambiguous. It provides that such liens (labor liens) shall have “precedence of all other debts, judgments or decrees, liens or mortgages, against such corporation, except liens accruing to this State for taxes, fines, or penalties.” There can be no question of the legislative intent that labor liens should have precedence.

But counsel for the bank contends that the words, “every such lien may be proceeded on, enforced, and collected * * * in the same manner, and under the same regulations, limitations, and conditions, as near as may be, as are herein provided for the enforcement and collection of other liens on real or personal property, as the case may be,” mean that such limitations and conditions restrict the other terms employed, so that, unless the labor liens accrue before the mortgage becomes a lien, they are to be postponed to the mortgage; that in such case the mortgage has precedence of the labor lien by becoming a lien before the labor lien attaches. We think the statute not open to this construction.

Counsel cites, as sustaining his contention, McLaren v. Byrnes, 80 Mich. 275; but in that case it expressly appeared that the labor lien had accrued before the levy of the attachment, and therefore the point under discussion here was not involved. It is true that it was said by Mr. Justice Champlin in that case that “the complainant’s lien, having accrued before the lien of the attachment, is entitled to priority; ” but that is not equivalent to saying that it would not otherwise have precedence. It was further said in that case, “We think this statute is remedial in its character, and entitled to a liberal construction.”

If we are to construe this statute as contended for by counsel for the bank, we must interpolate into it the words, “except when the mortgage lien first attaches.” This evidently was not the intent of the legislature. The statute was upon the statute books at the time the mortgages were given, and entered into the contract between the mortgagor and mortgagee. The mortgagee must he presumed to have, known that, when labor liens were filed, such liens would take precedence over the mortgages, and it is presumed to have contracted with this in view. This was mining property at the time the mortgages were taken.

In Warren v. Sohn, 118. Ind. 813, the court held a similar statute constitutional, and that such statutory provision, in force at the time of the execution of a mortgage, entered into and became a part of the contract, and that, where such statutes provide that liens of a certain class shall have priority over all other liens, the mortgagee takes his lien subject to such labor liens as may be after-wards acquired under the statute. In Provident Institution v. Jersey City, 113 U. S. 506, it was held that a statutory lien for water rent was superior to mortgages executed prior to the attaching of the supply pipes to the mains. It was said in that case:

“When the complainant took its mortgages, it knew what the law was. It knew that by the law, if the mortgaged lot should be supplied with Passaic water by the city authorities, the rent of that water, as regulated and exacted by them, would be a first lien on the lot. It chose to take its mortgages subject to this law.”

See, also, Reynolds v. Black, 91 Iowa, 1; St. Paul, etc., Trust Co. v. Diagonal Coal Co., 95 Iowa, 551; Brooks v. Railway Co., 101 U. S. 443, — in which cases the same rule is laid down.

This statute was enacted to secure to employés of corporations doing a mining business in the Upper Peninsula an efficient remedy for the collection of their wages; and the rights secured to such laborers should not be frittered away by the construction now contended for.

The decree of the court below must be affirmed, with costs in favor of the petitioners for the labor claims.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    OCONTO CO. v. LUNDQUIST.
    1. Vendor and Purchaser — Sale of Timber — Notice.
    A vendee of land the timber on which had previously been sold to another cannot hold the same asa bona fide purchaser, where he paid much less than the timber was worth, and where he visited the land prior to his purchase, and saw a freshly-cut logging road thereon, connecting with the main road and camp of the former purchaser, whom he knew to be getting out logs in the vicinity.
    2. Same — Construction of Contract.
    Under an agreement for the sale of timber giving the purchaser permission to cut and remove it at any time prior to a specified date, "with privilege of another year if needed to remove timber,” the purchaser to have no claim or ownership in any timber not removed previous to such date, the purchaser has a year from the date specified within which to re-
    ' move the timber from such portions of the land as cannot, with reasonable diligence, be lumbered prior to that date.
    3. Same — Statute of Frauds — Specific Performance.
    A vendee of land with notice of the rights of a prior purchaser of the timber thereon will be enjoined from prosecuting an action at law against the latter to recover for the timber removed by him, even though the former transaction was insufficient under the statute of frauds, where the circumstances are such as would have entitled the claimant thereunder to a specific performance.
    Appeal from Dickinson; Stone, J.
    Submitted October 21, 1898.
    Decided January 20, 1899.

      Bill by the Oconto Company against Alfred Lundquist and Charles Fridstrom to declare the priority of complainant’s title to certain timber, and to restrain the prosecution of an action of trespass. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Sawyer & Waite, for complainant.

      Cook & Pelham, for defendants.
   Hooker, J.

The Peninsula Iron & Lumber Company, a Michigan corporation, owned a large tract of timber land in Michigan, including the 40-acre parcel in question. A copartnership consisting of James B. and Robert F. Goodman, doing business under the name of James B. Goodman & Co., were the agents of the Peninsula Iron & Lumber Company, though it does not appear that their authority was in writing. On October 25, 1894, this firm executed and delivered to complainant, a Wisconsin corporation, a writing which was as follows:

“Limited Permit to Cut Timber.
“No. 665. Expires June 1, 1895.
“Land Oeeice oe James B. Goodman & Co., Chicago.
“Received of the Oconto Company three thousand six hundred (3,600) dollars, in consideration of which we hereby grant to them permission to cut and remove at any time previous to the first day of June, A. D. eighteen hundred and ninety-five {1895), with privilege of another year if needed to remove timber, all or any part of the pine timber now upon the following described land, in the county of Dickinson and State of Michigan, to wit: [Here follow descriptions aggregating 640 acres. ] Said pine timber to be cut and removed without destruction of other merchantable timber upon said land; and the said Oconto Company shall have no claim or ownership in any of said timber that shall not be removed from said land previous to said date, and no claim of reversion or return of any of the money consideration herein expressed, but all such timber remaining on said land at said date shall be the property of the owners of said land, as fully as if this permit had not issued. “Witness our hand and seal October 25, 1894.
“Jas. B. Goodman & Co. [Seal] “We hereby fully consent and agree to the conditions expressed in the foregoing permit.
--[Seal]”

At the same time they received $3,600, as the full purchase price of the timber mentioned therein. This writing was recorded, although not acknowledged.

The complainant subsequently made a contract with one Porterfield, whereby he agreed to cut the timber for the complainant within two years, and he proceeded to do the work. In September, 1895, he began the construction of a logging road upon the 40 acres in question, connected with his main logging road, which ran through other portions of the tract, which main road led to the railroad. On December 17, 1895, the Peninsula Iron & Lumber Company sold and conveyed to the defendants, by warranty deed, the 40 acres in dispute, for $120 in cash, who claim that they had no notice of the contract previously made with the complainant. Their deed was recorded after notice of ^complainant’s claim. Porterfield subsequently removed the pine timber under his contract with the complainant, whereupon the defendants brought an action against the complainant to recover treble damages, under the statute (2 How. Stat. chap. 272). The complainant tendered to the defendants the amount paid by them for the land, with interest, and asked them to deed the land to it. This being refused, complainant filed a bill praying a decree that the defendants’ deed should be held to be subject to the contract, and that the action at law Be restrained. The bill was dismissed, and the complainant has appealed.

The questions raised by the record are stated by the appellant to be the following:

“ 1. Did the complainant obtain a title to the timber mentioned in the contract, which included the S. E. i of the S. W. of section 23, township 42 north, of range 30 west, or such an interest, equitable or otherwise, that it could be enforced by a court of equity ?
“2. Does the contract of sale of timber between the Peninsula Iron & Lumber Company and the Oconto Company give the Oconto Company two years in which to remove the timber ?
“3. Was the building of the camps and roads on the timber land for the purpose of removing the,timber purchased by the Oconto Company from the Peninsula Iron & Lumber Company, and the running of the branch road onto the 40 in question, under all the circumstances, such a notice of possession as would put Lundquist and Pridstrom on inquiry ?
“4. Has a court of chancery the power to set aside a subsequent deed for value paid, when first recorded, if given through mistake of grantor, and if prior grantee tendered subsequent grantee the purchase price, with interest from the date of purchase?”

The testimony shows that the Goodmans acted exclusively as agents of the Peninsula Iron & Lumber Company in disposing of its timber and land. They made the sale to the defendants, though the conveyance was executed by the officers, and we think that the evidence shows that they were permitted by the Peninsula Iron & Lumber Company to act for it in all such matters. We do not discover any affirmative evidence that they were not authorized in writing to sell timber; but, whether they were or not, there is no doubt that the sale to the complainant was acquiesced in by the Peninsula Iron & Lumber Company, and that the land was subsequently sold and conveyed to the defendants for an inadequate price, upon the mistaken belief that the pine had been removed by the complainant under its contract. Immediately after its purchase of the timber, the complainant’s agents entered upon the tract, and made extensive inroads upon the pine. Its logging roads were extended to and upon the lot in question before its purchase by the defendants. The defendant Lundquist was a section foreman on the railroad, and, according to Porterfield’s testimony, he was engaged in building a side track for Porterfield’s landing at the time Porterfield was constructing the logging road, and knew that Porterfield was getting out timber in that region. He was in the habit of bringing Porterfield’s mail daily. Both defendants testified that they did not know that Porterfield was working- on the lot in question. Lundquist was a railroad boss, and Fridstrom was a miner. Both say they were used to the woods, and Fridstrom says that their business on that 40 was looking for pine. If that is so, the letter from Lundquist proposing to buy the tie timber and spruce was not ingenuous. The letter is as follows:

“Randville Station, Dec. 4, 1893. “J. A. Van Cleve,
“Marinette, Wis.
“Dear Sir: Would please let me know if stumpage can be bought on the E. £ of the N. W. £ of the N. E. £, all in Sec. 23, T. 42, R. 30, Dickinson Co., Mich. I,would like to buy the tie timber and spruce on the above description land, if sold at a reasonable price.
“Respectfully,
“Alf. Lundquist.
“If you have any maps of the Upper Menominee, please let me know the price of same, so I can send and get one. A. L.”
We also insert the remainder of the correspondence:
“Marinette, Wis., Dec. 5, 1895. “Alf. Lundquist, Esq.,
“Randville, Mich.
“Dear Sir: Yours of December 4th received. The stumpage is not for sale, separate, on the tracts described in your letter. We do not, hoto ever, place any particular value in the land. Inclosed is a diagram of 42-30 for the prices of each 40 for warranty deed, except the mineral rights. If you desire to secure either or all of the tracts noted in your letter, please advise me at once. A map of the Upper Menominee country, mounted on cloth, will cost you 50 cents. If you will remit same, will mail you one. Yours truly,
“J. A. Van Cleve.”
“Division, Randville Station, Dec. 15, 1895. “J. A. Van Cleve, Esq.,
“Marinette, Wis.
“Dear Sir: Yours of December 5th received, regarding the land in Sec. 23-42-30, S. E. of S. W. Price marked on the diagrams is $120.00, which you will find inclosed in this letter. If you please, send us deed for same tract described.
“Yours respectfully,
“Alfred Lundquist & Chas. Fridstrom,
“Randville, Mich.”

The testimony shows that there was pine upon the land worth from $350 to $500 stumpage, and the testimony of Van Cleve indicates that there was considerable hemlock and other mixed timber upon it; and it is also shown that at the time the defendants visited the lot, looking for pine, a freshly-cut logging road had been made, which connected with the main road and camps of Porterfield. "We are fully convinced that the defendants had knowledge of Porterfield’s business in that region, and think there was sufficient notice of occupation of the lot to put a reasonably prudent man upon inquiry, and, therefore, that the purchase was not bona fide.

We are of the opinion that the timber contract should be construed to mean that the complainant should have two years within which to remove the timber from such portions of the land as could not be conveniently lumbered the first season, and that the showing of diligence was sufficient, under the provision, which was that permission was given to cut and remove timber at any time previous to the 1st day of June, 1895, “with privilege of another year if needed to remove timber.”

Had the Peninsula Iron & Lumber Company remained the owner of the premises, and commenced the action for trespass, we should have no hesitation in saying that the contract for the sale of the timber was made by it, though, not being executed by one whose authority appeared to be in writing, it was inadequate, under the statute of frauds, to convey title to the standing trees. In view, however, of the full payment of consideration, and the work done by the complainant in reliance upon it, we should consider the contract valid in equity, as a parol contract partly, if not fully, performed; and we should confirm the complainant’s title to the timber cut, and enjoin the prosecution of the trespass case. The defendants have succeeded to the title of the Peninsula Iron & Lumber Company as to the 40 acres described, but subject to whatever legal or equitable rights the complainant had in the premises. Had they prevented the complainant from entering and removing the timber after preparations had been made to do so, we should, upon a proper bill filed for the purpose, have specifically enforced this contract, by requiring them to permit the complainant to remove the timber. But they did not prevent the removal of the timber. They waited until it was removed under a claim of right, and then commenced an action, punitory in its nature, to recover three times as much as their actual damage amounted to, upon their own theory. Under these circumstances it is only necessary to ascertain whether the contract was ' one which should have been enforced, and, if so, to restrain the prosecution of the action of trespass. We think the conduct of the defendants has been unconscionable. They should have permitted the complainant to take the timber, or accepted the offer of reimbursement.

The decree of the circuit court is reversed, and a decree will be entered in this court validating the contract for the sale of timber as a parol contract wholly performed, and adjudging defendants’ deed to be subject thereto, and perpetually enjoining the defendants from further prosecuting their action of trespass, or in any manner attempting to recover for the timber cut and removed, or any damages therefor. The complainant will recover costs of both courts.

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


author: Grant, C. J.

text:
    GALLAGHER v. BOARD OF SUPERVISORS OF CHEBOYGAN CO.
    Mandamus — Boards of Supervisors — Allowance of Claims—
    Answer.

      Mandamus to compel a board of supervisors to pass upon relator’s claim will be denied, where it appears from the sworn answer of the chairman and clerk of the board that, on receiving the order to show cause, it met, notified relator of a time and place for hearing his claim, and disallowed the same.

      Mandamus by Cornelius A. Gallagher to compel the board of supervisors of Cheboygan county to pass upon a claim.
    Submitted November 15, 1898.
    Writ denied January 20, 1899.

      Shepherd & Reilley, for relator.

      S. B. Roe and H. W. Harpster, for respondent.
   Grant, C. J.

Relator’s petition sets forth that the respondent, being authorized to purchase a site for a courthouse, purchased what is known as the “Horne site,” for $6,360, of which $4,690 was paid by the county, and $1,670 by relator and other subscribers, the relator contributing $100. The respondent paid the $4,690, and received deeds for the property. Subsequently the respondent decided ■upon another site, and made an exchange with the owners for the Horne site. Relator presented his claim to respondent, who, by resolution, referred the matter to the ■electors, to be voted upon at the next election. He asks •for a writ of mandamus to compel the respondent to pass upon his claim.

The sworn answer, signed by the chairman and clerk of the board of supervisors, denies all the material allegations of the petition. It sets forth the resolution of the board for the purchase of the Horne site, for the sum of $4,690, and the reasons for making the change; denies that the board had knowledge of or entered into any arrangement with relator or others by which they were to pay a part of the consideration; alleges that, at the time the board passed the resolution selecting the other site, relator and those interested with him filed a protest, claiming an equitable interest in the Horne property; and that this was the first time respondent learned of any such claim. It further sets forth that, upon receiving the order to show cause in this case, respondent met, and notified relator of the time and place for hearing his claim; that it met, rescinded its former resolution submitting it to the electors, and disallowed the relator’s claim.

The answer must be taken as true, and the writ must therefore be denied.

The other Justices concurred.


author: Montgomery, J.

text:
    CORBY v. MORAN.
    Deeds — Incompetency oe Grantor — Evidence.
    It is significant, apon the question whether or not a grantor at the time he executed certain deeds was imbecile and unable to understand the effect of the transactions involved, that his relatives, who attacked his deeds after his death, permitted him to deal with the property unrestrained, taking no steps towards the appointment of a guardian, and that dealings similar to those in question were had by him with reputable members of the legal profession.
    Appeal from Wayne; Lillibridge, J.
    Submitted November 16, 1898.
    Decided January 20, 1899.
    Bill by Abby Corby and others against Frances A. Moran and others to set aside certain deeds. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      John Atkinson (O’ Brien J. Atkinson and William F. Atkinson, of counsel), for complainants.

      Edwin F. Conely, Orla B. Taylor, Stewart & Wenzell, and James C. Smith, Jr., for defendants.
   Montgomery, J.

The complainants are the heirs at law of Thomas Bolam, who died in 1891, aged 67 years. This bill is filed to set aside four deeds made by him in his lifetime, — -one to William B. and Charles G. Moran, April 3, 1873; and the other three to William B. Moran, dated, respectively, September 3, 1877, April 29, 1878, and October 8, 1878.

The claim of complainants is that Thomas Bolam was, at the several dates when these deeds were executed, mentally incompetent, and that the consideration paid was in each case inadequate. It is not claimed that Mr. Bolam was an imbecile, but it is contended that he was simple-minded, and unable to understand the effect of the transactions involved, and that this want of capacity was known to the grantees. A large number of witnesses appeared on either side who had known Mr. Bolam for many years, and the usual conflict ¿ppears. The case is not free from doubt. The fact that the relatives of Mr. Bolam, knowing of his ownership of this property, permitted him to deal with it unrestrained for a long term of years, and took no steps to have a guardian appointed to care for his estate, is significant. Burt v. Mason, 97 Mich. 127; Richardson v. Medbury, 107 Mich. 176. It is also significant that Mr. Bolam dealt with others, and, among other transactions, gave mortgages to John Ward and Sidney D. Miller, two reputable members of the bar. We find that the value of the property conveyed did not exceed the price paid but slightly, if at all. There was no overreaching, by way of driving a hard or unconscionable bargain. The transactions must be set aside, if at all, on the ground of mental incompetency. We are satisfied that the circuit judge was right in holding that the complainants had failed to show by a preponderance of the evidence that Mr. Bolam was incompetent.

The decree dismissing the bill will be affirmed.

The other Justices concurred.


author: Long, J.

text:
    DAWSON v. PETER.
    1. Tax Deeds — Evidence op Title — Burden op Proof — Constitutional Law.
    The tax laws of 1889 and 1893 do not provide that deeds executed thereunder shall he prima facie evidence of title in the grantee, but attempt to make them conclusive evidence, which it is beyond the power of the legislature to do ( Taylor v. Deveaux, 100 Mich. 581); and therefore one who claims under such a deed has the burden of showing the regularity of all anterior proceedings, the sarne as at common law.
    2. Same — Form op Conveyance — Quitclaim.
    The tax law does not prescribe the form of the deeds to be given thereunder, and hence a deed in the form prescribed by 2 How. Stat. § 5729, defining what shall be a sufficient quitclaim deed, is sufficient to pass title to the grantee.
    3. Same — Purchase op State Tax Lands — Interest Acquired.
    Under section 70 of the tax law of 1893, providing that, for want of bidders at the annual sale, the land shall be bid off to the átate, “for the State, county, and township, in proportion to the ” amount due each; and section 84, providing for the after sale and conveyance of all the right, title, and interest “of the State” in the lands so acquired, — the purchaser takes a fee] in the land, if all the proceedings are regular.
    4. Mortgages — Ejectment—Parties.
    A mortgagee of lands has no title thereto, but merely a lien thereon, prior to foreclosure and the expiration of the redemption period (2 How. Stat. § 7847), and therefore, unless in possession of the premises, he cannot be made a party defendant to an action of ejectment, under 2 How. Stat. § 7791, authorizing such action against persons “ claiming title to or some interest in ” the premises.
    Error to Sanilac; Beach, J.
    Submitted October 7, 1898.
    Decided January 20, 1899.
    Ejectment by John Dawson against Oliver Peter, Harlan P. Smith, and John J. McTavish. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      G. W. Davis, for appellants.

      Gates & Rapley, for appellee.
   Long, J.

Action of ejectment. Plaintiff claims title in fee to the S. W. i of S. E. i, and the S. E. ¶ of S. W. of section 18, township 10 N., of range 12 E., Sanilac county. To prove his title, plaintiff offered in evidence a State tax land deed executed by the auditor general, dated November 11, 1897. The deed recites that the plaintiff became the purchaser of the lands on August 25, 1897, and that they were bid off to the State for the taxes assessed thereon in the years 1890, 1891, and 1892; that the plaintiff obtained a certificate from the auditor general for the purchase of the lands, and paid therefor $284.18; and that such certificate has been surrendered and canceled. The deed then recites that—

“The auditor general of the State of Michigan, in the name of the people of said State, and by virtue of the authority vested in him by the laws thereof, in consideration of the premises, and the payment of the purchase money above mentioned, the receipt whereof is hereby confessed and acknowledged, does by these presents remise, release, and quitclaim unto the said John Dawson, party of the second part, and to his heirs and assigns, forever, all the rights acquired by the State in virtue of the original sale or sales to the State in the premises above described,” etc.

To.the introduction of this deed defendants’ counsel made the following objections:

“First. That said deed is incompetent, and has no tendency to prove title in the plaintiff.
“Second. That it bears date November 11, 1897, which is subsequent to the taking effect of Act No. 229, Pub. Acts 1897, which prohibits a procedure to recover possession of lands based on tax titles claimed to have been derived from the sale of said land for taxes, when the purchase was made, either at the delinquent tax sale or from the State tax land list, subsequent to the time when said act took effect, without serving such a notice as is prescribed by said act. * * *
‘Fourth. It is incompetent evidence to prove title in the plaintiff, because upon its face it does not purport to convey title in fee, but simply to convey to the grantee therein the right, title, and interest of the State; or, in other words, it is a deed which undertakes to remise, release, and quitclaim the interest of the State to the plaintiff, and unless he proves that at the time of the execution of the deed plaintiff had some other interest in the land, upon which the words ‘remise, release, and quitclaim’ could operate, he obtained no title whatever by the deed.”

Plaintiff’s attorney' then asked the attorney for the defendants if he would concede that Oliver Peter has on record a deed of the premises, and that the other two defendants have mortgages on the premises, to which defendants’ counsel replied:

“Yes; I will concede'that Mr. Oliver Peter owns, as I understand it, the government chain of title by deed, and Mr. McTavish and Mr. Smith have mortgages, and that is the only interest they have in the land.”

Thereupon plaintiff’s attorney asked defendants’ attorney if he would concede that Mr. Dawson paid the money for the land the 25th of August,,1897, to which counsel replied:

“I will make this concession: That Mr. Dawson sent to the office of the auditor general, by mail, on the 25th day of August, 1897, a draft for $287.75, accompanied by this letter, a copy of which I will read:
“‘Marlette, Mich., August 24,1897.
“ ‘ Auditor General,
“ ‘ Lansing, Mich.
‘Dear Sir : Inclosed find draft for $287.75, for S. E. £ of S. W. iof section 18, 10-12 E., taxes of 1890, 1891, and 1892, $150; also S. W. i of S. E. i of section 18, 10-12 E., for taxes of 1890, 1891, and 1892, $187.75. Yours truly,
“‘John Dawson.’”
On the back of the letter is a memorandum made in the office of the auditor general, which shows that it was received August 25, 1897, with a draft for $287.50, and that they returned $3.37 afterwards to him.
Q. by Plaintiff’s Attorney: Do you concede that they received the money the 25th of August, 1897, from John Dawson, for the purchase of this land for which this deed was afterwards issued ? ”
To which defendants’ attorney answered: “The draft was sent in this way, and the deed was issued in pursuance of the application afterwards.
Q. Do you concede that the draft was of that nature to represent money, and was accepted as money?
“A. I suppose they received the money on it, or they would not have issued the deed.”

The deed was received in evidence, and plaintiff rested. The decree of the court authorizing the sale of the land for taxes was not offered in evidence; nor were there offered the proceedings to foreclose the tax lien had prior to the making of the deed. Defendants’ counsel asked the court to direct the verdict in favor of defendants. The court charged the jury to return a verdict in favor of plaintiff. Defendants bring error.

1. sThe proceedings for the foreclosure of the tax lien for the year 1890 were had under the tax law of 1889. The proceedings for the sale for the taxes of 1891 and 1892 were had under the tax law of 1893. The rule of the common law is that one who asserts title under a tax deed has the burden of showing that the original title has been forfeited pursuant to law, by showing the regularity of all the proceedings anterior to the deed. In Cooley, Tax’n (2d Ed.), 517, the rule is stated that:

“The deed of conveyance would not stand for this evidence. It would prove its own execution; nothing more. The power to execute it must be shown before the deed itself could have any force; for no officer can make out his own jurisdiction to act by the mere fact of acting.”

The plaintiff, however, relies upon the tax statute, which he contends makes the deed evidence without proof of the former proceedings showing that all the steps required by the statute have been properly and timely taken. Section 67 of Act No. 195, Pub. Acts 1889 (3 How. Stat. § 1170gr6), provides that “such deeds shall convey an absolute title to the land sold,¡[and be conclusive evidence of title in fee in the grantee,” etc. Section 72 of Act No. 206, Pub. Acts 1893, contains the same provision as to tax deeds. But it is contended by counsel for defendants that this provision of these statutes has been held unconstitutional and void by this court in Taylor v. Deveaux, 100 Mich. 581, and that, therefore, the plaintiff was bound to follow the common-law rule, and show the proceedings leading up to the giving of the deed, before he could put his deed in evidence. It was said by this court in the last-mentioned case that:

“The statute, of necessity, determines the nature of the title conveyed by a valid sale and deed, viz., an absolute title in fee, subject to subsequent taxes. It is not within the power of the legislature to deny the right to defend title against a tax deed. 1 Blackw. Tax Titles, §§ 78-80; Cooley, Const. Lim. (6th Ed.) 452. We think it much more consistent to hold that the legislative intent was that the deed should be evidence of title in fee simple, after the right to give the deed had been shown by proof of a valid, decree.”

The contention of counsel for defendants is undoubtedly correct. These provisions of the statute were beyond the power of the legislature to enact. It is within the power of the legislature to make the tax deed prima facie evidence of the regularity of all the proceedings, and of title in the purchaser, thus shifting the burden of proof upon the party defending against the deed. Cooley, Tax’n (2d Ed.), 519. But these statutes do not attempt to do this; and under Taylor v. Deveaux, supra, the rule of the common law must be applied, and the burden cast upon the plaintiff to show a valid decree, and a sale thereunder. The statute does not purport to make the deed evidence that the sale was regular; nor does it purport to make the deed evidence, even prima facie, of the truth of the recitals contained therein.

2. It is contended that the form of the deed in the present case is not such as to entitle the plaintiff to recover in an action of ejectment, even if all the other proceedings anterior thereto were proved, and were in strict compliance with the law. These statutes prescribe .no form for such deeds, but section 67 of the tax law of 1889 provides that the auditor general shall “execute deeds to the purchasers in such form as shall be determined by him,” and section 72 of the tax law of 1893 provides that, on presentation of the certificate of sale, the auditor general or his deputy “shall execute and deliver to the purchaser, his heirs or assigns, a deed of the land therein described.” It is also provided by section 5729, 2 How. Stat., that:

“ Any conveyance of lands worded in substance as follows: ‘A. B. quitclaims to C. D. (here describe the premises) for the sum of (here insert the consideration), ’ the said conveyance being duly signed, sealed, and acknowledged by the grantor, shall be deemed to be a good and sufficient conveyance in quitclaim to the grantee, his heirs and assigns.”

No greater formality in making a conveyance by the State should be required than as between individuals. The words in the form of the deed adopted by the auditor general are the words provided by this act; that is, the auditor general quitclaims all the interest of the State in the land. This deed operated to convey the title to the grantee.

But counsel further contends that the State had no interest in the land, except as to the amount of the State tax; that it had no interest in the amount of taxes for county, city, etc. The statute provides that, for want of bidders, the lands shall be struck off to the State. We think there is no force in these contentions.

3. It is also contended that the defendants McTavish and Smith being mortgagees only, and not being in possession of the premises, they could not be made parties defendant, and that the court was in error in directing verdict against them. The rule is stated in 7 Enc. Pl. & Prac. 314, that “neither the landlord, nor any other person out of possession of the premises demanded, can be joined as a co-defendant in ejectment without his consent, and, if so joined, will be entitled to a nonsuit.” This was undoubtedly the common-law rule. But the rule was later modified, and the landlord who received rents and profits was permitted to defend ‘in ejectment. In Pearson v. Poe, 6 Bing. 613, the rule was laid down by the court of common pleas that a mortgagee would not be permitted to come in and defend as landlord in ejectment unless he were interested in the result of the suit; so that mortgagees who received rents and profits were later permitted to defend in ejectment. This rule was modified in New York in Wisner v. Wilcocks, Cole. & C. Cas. 62. In that case it was moved that Wilcocks be admitted to defend jointly, on his affidavit that the defendants held of him as their landlord. This was opposed on the ground that the affidavit did not specify that Wilcocks was in the receipt of rent. The motion was, however, granted. In Nathan v. Fen, 6 N. J. Law, 478, it was held that a mortgagee might be admitted to defend in an action of ejectment, unless the lessor of the plaintiff would discharge the mortgage.

These cases, however, were ruled upon the principle that the mortgagee had title under his mortgage. In this - State the mortgagee has no title to the premises, but a lien upon them, until after foreclosure, and after the expiration of the time of redemption; so that the question of whether a mortgagee may be made a party defendant in ejectment must depend upon the wording of our statute. . 2 How. Stat. § 7791, provides that:

“ If the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named a defendant in the declaration; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto or some interest therein at the commencement of the suit; and all persons claiming any title to the premises adverse to that claimed by the plaintiff may in all cases be made defendants in such action.”

Mortgages executed prior to March 8, 1843, were held to convey title to the mortgaged premises, and in default in payment the moi’tgagee could maintain ejectment to recover possession of the lands. But by Act No. 62, Laws 1843, this rule was changed, and it is now provided:

“No action of ejectment shall hereafter be maintained by a mortgagee, or his assigns or representatives, for the recovery of the mortgaged premises, until the title thereto shall have become absolute upon a foreclosure of the mort- ’ gage.” 2 How. Stat. § 7847.

Since this act took effect, in 1843, mortgages are not deemed to be conveyances, but are securities only; and, until foreclosure and sale, the title to the premises and the right of possession remain in the mortgagor.

In Dougherty v. Randall, 3 Mich. 588, it was said:

‘ ‘ His mortgage interest is but an incident of the debt, and consequently must follow the debt, and when the debt is paid his lien upon the-land is discharged; and therefore the mortgage is nothing more than a chose in action, and the mortgagee’s interest therein, before foreclosure and sale, a mere chattel interest, which may be transferred without the execution of a deed or other instrument in writing, where the statute does not require the transfer to be made by deed. In this State the statute contains no such provisions.”

We think section 7791, 2 How. Stat., was not intended to give the right to plaintiffs in ejectment to bring mortgagees in as parties defendant until after foreclosure and sale. The “interest therein,” mentioned in that section, means some legal interest, and not a mere equity. A mortgagee cannot bring ejectment until after foreclosure and sale, and he should not be put to the cost and expense of defending his mortgage interest in ejectment until that time.

The judgment is reversed, and a new trial granted.

The other Justices concurred.


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    DETZUR v. B. STROH BREWING CO.

    1. Negligence — Palling Glass — Question for Jury.
    Plaintiff was injured by the falling of a piece of glass from an upper window in defendant’s building, which stood close to the public street. There was evidence tending to show that the pane of glass had been for some time in such a shattered condition as to render it likely that pieces would readily be shaken out. There was no unusual wind on the day of the accident. Held, to support a finding oí negligence.
    2. Same — Proximate Cause — Ordinary Wind.
    An owner’s negligence in maintaining a window above a public street in such a shattered condition as to render it likely to fall and injure pedestrians is the proximate cause of an accident so occurring, although an ordinary wind may operate as a concurring circumstance to dislodge the glass.
    3. Same — Evidence—Opinions of Witnesses.
    While a witness may testify to circumstances coming under his observation which tend to show that a window above a sidewalk’was maintained in a condition dangerous to pedestrians, as, for example, that he had noticed a hole in the glass, and had heard the rattling of the panes, it is not competent for him to draw the inference on the stand that the window was in fact unsafe.
    4. Same —Objection on Wrong Ground — Expert Knowledge. But' a reversal will not be granted on account of the admission of such testimony, where the objection at the trial was that the witness was not shown to be an expert, since, conced_ ing its admissibility, no special qualifications on the part of the witness would be-required.
    5. Evidence — Sufficiency of Objections — Hypothetical Questions.
    An objection that a hypothetical question is incompetent does not raise the point that the question is not in proper form because it includes the witness’ understanding of the testimony of another witness.
    6. Same.
    The overruling of an objection to the admission of testimony will not justify a reversal where the form of the objection was such as to leave the trial court unadvised as to the ground on which it was based. So held, in an action for personal injuries, where testimony tending to show that the president of the defendant corporation had admitted the company’s negligence was objected to as “incompetent,” without the statement of any specific ground.
    7. Personal Injuries — Damages—Excessive Judgment.
    A judgment of $3,500 damages for an arm permanently stiffened is not so clearly excessive that it will be interfered with on appeal.
    8. Same — New Trial — Remitting Verdict.
    A new trial in an action for personal injuries may be made dependent upon plaintiff’s refusal to remit a portion of his verdict.
    Error to Wayne; Smith (George W.), J., presiding.
    Submitted November 22, 1898.
    Decided January 20, 1899.
    Case by Augusta Detzur, an infant, against the B. Stroh Brewing Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry M. Duffield (Thomas S. Jerome, of counsel), for appellant.

      James H. Pound, for appellee.

       Rehearing denied May 23, 1899.

   Hooker, J.

The plaintiff was injured by a piece of glass, which fell from a window of the defendant’s building, cutting her arm severely, and permanently impairing its use, according to some of the testimony in the case. There is testimony upon the part of the plaintiff tending to show that a round window in the upper story was broken for some days or weeks before the accident, and that it was a piece of glass from this window which injured the plaintiff. The defendant offered testimony tending to show that there was no broken window in the building on the day before the accident, and that the glass causing the injury came from a square window, in a lower story, and its fall was caused by a high wind blowing at the time. The theory of the only count relied upon is that the defendant created and 'maintained a nuisance, in an insecurely fastened and broken window sash and glass, whereby the plaintiff was injured. A verdict of $10,000 was rendered in behalf of the plaintiff. A motion being made for a new trial, the court denied the same, upon condition that the plaintiff remit the sum of $6,500 from the verdict, which was done. The defendant has brought error.

Error was assigned upon the refusal of the court to charge the jury that there was no evidence of negligence. It is urged that it cannot be inferred from the mere fact that there was an accident. There is testimony tending to prove that there was a broken window; that, immediately before the accident, a window or glass was heard rattling, and the witness looked up, and saw triangular pieces of glass falling from the window, which she had previously seen in a broken condition; that several pieces fell to the sidewalk; and that it was a pleasant day, with but little wind. The window was 50 or 60 feet from the ground, in a building that stood but a few feet from the street. If it is true that a pane of glass was shivered, as, we think, there was some testimony tending to show, we cannot say that a jury could not legitimately find that it was negligence to leave it in that condition until the action of the elements loosened it, and caused it to fall. It is true that, where there is no evidence suggestive of a negligent cause, no recovery should be allowed upon a charge of negligence; but this is not such a case. Circumstances consistent with the plaintiff’s theory are found in the case, and offer a reasonable opportunity for the inference that the injury resulted from a careless disregard of the broken and loosened condition of glass in a window above a street where pedestrians were frequently passing.

Counsel say that it is common knowledge that there is nothing dangerous in itself in a broken windowpane. We know that it is common to see cracked and broken windows, and we recognize the fact that some of them are considered safe; but others are sometimes seen which are so palpably unsafe, because of the apparent danger of the pieces falling or being shaken out when the sash is shaken by wind or otherwise, that they may well be considered dangerous. As we cannot say that all cracked windows are safe, we must submit the question to the jury, when the testimony tends to show a condition of the window indicating danger.

In this connection we will mention the question of proximate cause. Counsel contend that, if the glass fell by means of its being dislodged by the wind, the negligence of the defendant was not the proximate cause of the injury, and they complain of a refusal to instruct the jury that in such event the plaintiff should not be allowed to recover. The negligence complained of is the maintenance of a window in such a condition that the glass was liable to fall out; not necessarily from its own weight, but under the natural conditions and strain to which it was likely to be subjected. It might not be negligent to leave a broken pane, if assurance could be given that it would be undisturbed by wind or by use. But wind is an every-day occurrence. It is a condition, not necessarily a cause, and one which should be taken into consideration before determining that a broken glass is not likely to fall. The wind may have been a concurring circumstance, but it cannot be said to have been the proximate cause, and the broken glass' the remote cause. It cannot be true that a defendant who is liable if a defective glass falls from its own weight on a quiet day is to be relieved from responsibility because its fall is due to the pressure of a wind which should have been anticipated.

The testimony of two witnesses was relied upon to prove that a round window in the upper story had been broken for some time. One of these witnesses testified that she had noticed the window before; that it had a hole in it, etc.; she had noticed the rattling of these panes. She was then asked:

“Q. Will you state as to whether or not, before this, when you would hear this rattling, whether you thought that was a safe window or not ?
“A. No, sir.”

The testimony was inadmissible. If we overlook the fact that the question did not ask her to state her opinion upon oath, but called merely for a previously existing opinion, and assume that she meant to give it as her opinion at the time of the trial that the glass was unsafe, such testimony was incompetent. It was proper for her to state the condition of the window, and the circumstances which came under her observation; but it was for the jury to draw inferences and conclusions as to danger or safety. The condition of this window as to safety was one of the principal points in the case. Upon the unsafe condition of this window the case may be said to have hinged. Analogous questions have been passed upon repeatedly by us, as shown by the cases cited in the brief of counsel. But the objection now urged was not made, and it is fair to presume that the trial court did not consider it. The reason given for the objection was that she was not shown to be an expert. The court probably considered it ■a matter requiring no special qualification, and in this he was right; and we can hardly believe that he would have admitted the testimony had the objection been made which was made in this court.

Again, error is assigned upon a hypothetical question asked a medical expert. The objection appearing upon the record is that it was incompetent, which did not advise the court that the form of the question was objectionable. The precise point argued here is that the question made the witness’ understanding of the testimony of another witness a part of the question, — a practice which has been criticised by this court, though permitted in some States. See People v. Aikin, 66 Mich. 476 (11 Am. St. Rep. 512); Kempsey v. McGinniss, 21 Mich. 138; Lawson, Exp. Ev. 144 et seq.

Error is also assigned upon the introduction of admissions of Bernard Stroh, the president of the company, who' is said to have stated to the plaintiff’s mother', in an interview some hours after the accident, that the windows were defective. Objections were made to the questions, but no ground whatever was stated in two instances. A third objection to this testimony is based upon the ground of incompetency. While there may be cases in which a court could not fail to understand the point relied upon, even under so general an objection as incompetency, there are others where such an objection would not even suggest the real objection. In this case it might have been intended to mean that the president had no authority to negotiate a settlement, or that he was not engaged in a negotiation for that purpose, and, therefore, that he was not acting in the company’s business, or that, the admission being made in an attempt to compromise the matter, it should not be treated as an admission. If anything is settled by our decisions, it is that, unless an objection clearly advises the trial court of the) specific ground upon which it is made, it will not justify a reversal. Among the cases supporting this rule are the following: Rash v. Whitney, 4 Mich. 495; Hoard v. Little, 7 Mich. 468; Young v. Stephens, 9 Mich. 507; Morrissey v. People, 11 Mich. 332; Hollister v. Brown, 19 Mich. 166; Gilbert v. Kennedy, 22 Mich. 117; Snyder v. Willey, 33 Mich. 490; Campbell v. People, 34 Mich. 351; Ward v. Ward, 37 Mich. 259; Stevens v. Hope, 52 Mich. 69; Merkle v. Township of Bennington, 68 Mich. 144; Jennison v. Haire, 29 Mich. 207; Heymes v. Champlin, 52 Mich. 25; Jochen v. Tibbells, 50 Mich. 33; Bulen v. Granger, 63 Mich. 311; Abbott v. Chaffee, 83 Mich. 256; People v. Moore, 86 Mich. 134; Hutchinson v. Whitmore, 95 Mich. 592; Seventh-Day Adventist Pub. Ass’n v. Fisher, Id. 274; People v. Durfee, 62 Mich. 491.

A motion for a new trial was made upon the following grounds:

1. The damages are excessive.
2. The damages are so excessive as to evince passion, prejudice, partiality, or corruption of the jury.
3. The verdict is against the weight of evidence.

The court found that the damages were excessive; that they were not so excessive as to evince passion, prejudice, or corruption, and that they do not exist; that the jurors were so moved by sympathy for the plaintiff, and by their common knowledge of the financial ability of the defendant, and their belief of large amounts expended by the defendant for medical expert evidence, as to have awarded a larger amount than they otherwise would have done, and to that extent partiality is found; that the verdict is not contrary to, or against the weight of, the evidence. An order was then made ordering a new trial, unless $6,500 should be remitted from the verdict. Error is assigned upon this order. Counsel argue that $3,500 is excessive damage for a stiff arm; but we cannot say that it is so clearly excessive as to justify our interference upon that ground. "We are also of the opinion that making a new trial dependent upon a refusal to remit a portion of the verdict in cases of this kind is a well-settled practice in this State, where, as in this case, the amount of unliquidated damage is the only question involved. It has always been considered lawful for the trial judge in such a case to set aside a verdict as excessive; and it has been a common practice to grant a portion of the relief asked by requiring a remission of a portion of the verdict as a condition upon which the new trial will be denied. This has always been a matter of discretion, and, where it is not clearly erroneous, the action of the trial court should not he disturbed.

Several other questions are raised, but our investigation of them leads to the conviction that they do not furnish a ground for reversal of the case. We think it unnecessary to discuss them. The jury found a cause of action, and that left merely the question of the amount of damages to be awarded. These involved pain and suffering, and prospective as well as past deprivation of the use of the arm. Such damages are not altogether a matter of mathematical computation, but they are determined by the con-census of opinion of the jury, acting under the direction of the judge. The question of new trial was within the discretion of the court.

The judgment of the circuit court is affirmed.

The other Justices concurred.

       To this point counsel cited Marcott v. Railroad Co., 49 Mich. 99; Jones v. Railway Co., Id. 573; Cook v. Johnston,. 58 Mich. 437 (55 Am. Rep. 703); Lemon v. Railway Co., 59 Mich. 618; Passmore v. Passmore’s Estate, 60 Mich. 463; Anderson v. Boom Co., 61 Mich. 489; Smith v. Township of Sherwood, 62 Mich. 159; Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842); Zube v. Weber, 67 Mich. 52; Ireland v. Railroad Co., 79 Mich. 163; Kelley v. Railroad Co., 80 Mich. 237 (20 Am. St. Rep. 514); Langworthy v. Township of Green, 88 Mich. 207; Girard v. City of Kalamazoo, 92 Mich. 610; Lewis v. Bell, 109 Mich. 189; Smaltz v. Boyce, Id. 382; Atherton v. Village of Bancroft, 114 Mich. 241.


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    SKEELS v. OCEANA CIRCUIT JUDGE.
    1. Attachment — Form oe Writ — Service.
    2 How. Stat. § 7991, as amended by Act No. 129, Pub. Acts 1895, relating to the execution of writs of attachment issued out of the circuit court, provides that if property is found and seized in the county where the writ issues, but it is insufficient to satisfy the demand and costs, the officer shall seize other property, sufficient, with that seized within his county, to satisfy the same, wherever it may be found within the State, and shall serve a copy of the attachment and inventory upon the defendant, if found within either county where property has been seized. Held, that a writ which commands service upon defendant, “if he can be found in either county where property has been seized under the writ,” is not invalid for failure to command service in the county where the writ issues if defendant can there be found.
    2. Same.
    The further provision of the amended statute that, in case defendant shall not be found in either county where property has been seized, service may be made by the sheriff of any county where defendant may be, authorizes service by the j sheriff of another county in any case where defendant is not found in the county or counties where property is seized.

      Mandamus by Richard Steels to compel Fred J. Russell, circuit judge of Oceana county, to quash a writ of attachment.
    Submitted December 13, 1898.
    Writ denied January 20, 1899.

      W. D. Fuller, for relator.

      L. M. Hartwick, for respondent.
   Long, J.

It appears that on May 11, 1898, one John 'V. Oahill sued out of the Oceana circuit court a writ of attachment against relator, returnable June 10, 1898. The usual affidavit was annexed to the writ. On the date of its issue the sheriff of Oceana county levied the writ upon certain lands of the relator, and caused the same to be appraised. The levy was indorsed upon the writ, as well as the certificate of the appraisers. On the same day the writ was issued, and the property attached and appraised, the sheriff sent the writ, with the affidavit attached and levy indorsed, and the appraiser’s certificate also indorsed, to the sheriff of Ottawa count, for service on the defendant named in the writ, the relator here. The sheriff of Ottawa county served the writ personally on the relator in Ottawa county, by delivering to him certified copies of the affidavit, writ of attachment, and inventory, certificate of levy, and appraisal. On June 29, 1898, the •original writ was returned and filed in the clerk’s office of Oceana county. The return of the sheriff of Oceana county is indorsed on the writ, and sets forth the levy, with a description of the land, the appraisal, etc., as made on May 11, 1898. The sheriff then further returns:

“On the day aforesaid I was unable to find said defendant within said county, and learning that he was in Ottawa county, in said State, I sent said affidavit and writ to Frank Van Ey, sheriff of said Ottawa county, whose return of personal service appears on back of affidavit annexed hereto.”

The return of the sheriff of Ottawa county is duly indorsed, and sets forth, as above stated, how he served the writ.

On July 2, 1898, an affidavit of nonappearance was filed in the case, and on July 6th the declaration was filed. On July 14th the relator moved to quash the writ and set aside the service on the grounds:

1. That the writ is not in the form required by section 7990, 2 How. Stat., and Circuit Court Eule No. 1 (e), as it does not contain the commands specified in said statute and rule.
2. That section 7991, as amended by Act No. 129, Pub. Acts 1895, authorizing the service of a writ of attachment in any county within this State by the sheriff of the county where the defendant may be found, applies only where the writ has been levied upon property of defendant in more than one county, and the defendant is not found in either of said counties.

This motion was denied by the court below, and application is now made for the writ of mandamus to compel the circuit judge to quash the writ and vacate the service.

1. The first point made is that the writ of attachment does not command the sheriff to whom the writ issued to serve a copy of it and the inventory, certified by him, upon the defendant if he can be found within the county, but only commands that the sheriff serve a copy of the writ and inventory, certified by him, upon the defendant if he can be found in either county where property has been seized under the writ. We think the writ was in substantial compliance with the amendatory act of 1895. That act provides that in case any property of defendant is found and seized in said county (that is, the county in which the writ issues), but not sufficient to satisfy the demand and costs, then said officer shall seize other property of the defendant, sufficient, with that seized within his county, to satisfy the demand and costs, wherever the same may be found within the State, and shall serve a copy of such attachment and inventory upon the defendant, if found within either county where property has been seized; and in case defendant shall not be found in either county where property has been seized, such service may be made in any county within this State by the sheriff of the county wherein such defendant may be. Circuit Court Rule No. 1 (e) makes substantially the same provision. It follows the amendatory act of 1895.

2. Property was seized in Oceana county, but none in Ottawa county. The defendant was in Ottawa county, and the writ and inventory were served upon him there. The amendatory act of 1895, we think, is broad enough to allow such a service; that is, if the defendant could not be found in the county where the property was seized, the writ and inventory might be served in any county in the State where he might be found.

The court very properly refused to quash the service. The order is affirmed.

The other Justices concurred.


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    CITY OF MT. CLEMENS v. MACOMB CIRCUIT JUDGE.
    1. Condemnation Proceedings — Cities of Fourth Class — Qualifications of Jurors — Constitutional Law.
    Section 17, chap. 25, of the general act for the incorporation of cities of the fourth class (Act No. 215, Pub. Acts 1895), which provides for a trial de novo in the circuit court, before a jury of the regular panel, on an appeal fi;om justice’s court in condemnation proceedings instituted under that chapter, is unconstitutional, since circuit court jurors are not necessarily freeholders from the vicinage, who only, under article 15, § 15, and article 18, § 2, of the Constitution, are qualified to sit in such proceedings.
    2. Same — Waiver of Rights by Appeal.
    The fact that an appeal is taken in such proceedings from justice’s court, where, under the statute', a jury properly qualified is provided, cannot be construed as a waiver of the right to a constitutional jury in the circuit.
    3. Same — Statutes—Invalid Provisions — Construction.
    Since the right of an appeal and of a trial de novo in the circuit is an essential part of the proceeding provided for in chapter 25 of the act, the unconstitutionality of the section respecting appeals invalidates the entire chapter.

      Mandamus by the city of Mt. Clemens to compel James B. Eldredge, circuit judge of Macomb county, to vacate an order discontinuing condemnation proceedings. Submitted
    November 22, 1898.
    Writ denied January 20, 1899.
    O. C. Lungerhausen, City Attorney (Seth W. Knight, of counsel), for relator.

      E. W. Meddaugh ( Geer & Williams and L. G. Stanley, of counsel), for respondent.
   Long, J.

The city of Mt. Clemens was reincorporated under Act No. 215, Pub. Acts 1895. Sections 1 to 14, inclusive, of chapter 25 of that act, confer upon cities of the fourth class the right to condemn land for streets and other purposes, and prescribe the method of procedure before á justice of the peace. Proceedings were taken by the city before a justice of the peace to condemn land for street purposes. Among the lands described were certain lands of the Grand Trunk Railway Company of Canada, and the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company, extending across the right of way and tracks of such companies. A jury was duly impaneled before the justice as provided by the act, who returned a verdict and finding that it was necessary to take the property for the use and benefit of the public for-the proposed public improvement, and awarded the railway companies certain damages, varying from 6 cents upoñ certain descriptions to $450 upon others. The order of confirmation was thereafter entered by the justice. The railway companies, within the time provided by the act, took an appeal to the circuit court. On June 15, 1898, the cause was called for trial. The parties appeared, and, the clerk being directed by the court to call a jury from the regular-panel returned for that term, counsel for the railway com.panies objected to the cause being tried by such panel, for the reasons:

1. That though the jury contemplated by section 17, chap. 25, of the act, was the regular panel of jurors selected for the trial of causes in the circuit court, yet such jurors might or might not possess the qualification of jurors required by section 2, art. 18, of the Constitution of this State, and that no other or different jury than that provided by the Constitution could be called to determine the question of the necessity of taking private property for public use, or determine the just compensation therefor.
2. That section 17, chap. 25,. of the act, is unconstitutional, in that it does not provide for such a jury.

The court below, after the argument of the questions stated, sustained the contention of counsel for the railway companies, and refused to proceed with the cause. Application is now made here by the relator for mandamus to compel the court below to proceed with the hearing of the cause according to the rules and practice of the court.

It is the contention of counsel for relator:

1. That, by appealing to the circuit court from a tribunal where the railroad companies had a trial before a constitutional jury, they waived the right to a jury of freeholders, inasmuch as no such jury is provided on appeal, and that the writ' should therefore issue, requiring respondent to proceed with the hearing before the regular panel of jurors.
3. That, if the machinery for carrying into effect such appeal be found defective, that portion only of the act should be held unconstitutional, and the proceedings before the justice should stand as final.

Section 15 specifically provides for an appeal from the determination of the jury in justice’s court. Section 17 provides that:

“Upon filing the return of the justice as mentioned in the preceding section, the circuit court shall have jurisdiction of the case. The parties may proceed to trial by jury, without reference to any term of court, upon all questions involved in such proceedings, and the verdict or finding of the jury shall be conclusive. The appeal of one or more persons interested in any judgment of confirmation shall not in any way affect said judgment as to other persons' interested therein, who do not appeal.”

It is apparent from the language of this section that a trial is to be had de novo in the circuit court; that all the questions litigated in the justice’s court may be again litigated in the circuit court on appeal. • The question as to the necessity of taking the lands for the public improvement, as well as the just compensation to be awarded therefor, may be retried on the appeal; so that the inquiry . may well be made whether the regular panel of jurors drawn for a regular term in a circuit court are such jurors as are provided for by the Constitution in condemnation proceedings. Section 3, art. 18, of the Constitution, provides that:

“When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law: Provided, .the foregoing provision shall in no case be construed to apply to the action of commissioners of highways in the official discharge of their duty as highway commissioners.”

Section 15, art. 15, provides that:

Private property shall not be taken for public improvements in cities and villages without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders, and actually paid or secured in the manner provided by law.”

The jurors provided by the Constitution, then, are to be such as are secured from the vicinage, and who are freeholders. The j urors returned to the circuit court under the statute (2 How. Stat. §§ 7554, 7555) are to be selected from the assessment rolls, having the qualifications of electors. Such jurors do not necessarily possess the qualifications required of jurors by the Constitution in the taking of private property for public uses. In City of Owosso v. Richfield, 80 Mich. 328, it was expressly held that the provisions of the charter which required jurors to be summoned, who were qualified to serve as jurors in courts of record, to serve in condemnation proceedings, were unconstitutional; and the verdict in that case was reversed, and the .proceedings quashed. The court was not in error in the present case in refusing to go on with the case before that jury. The statute under consideration makes no provision for the summoning of jurors who would be qualified to serve in such cases in the circuit court. It points out no method for obtaining such a jury. We are therefore of the opinion that the sections of the act providing for the trial of such cases on appeal in the circuit court are unconstitutional, and that such trials cannot be had on appeal. This result is greatly to be regretted, but it is a matter that the legislature alone can remedy.

The contention that the appeal must be dismissed, and the verdict before the justice affirmed, if this result is reached, cannot be sustained. The provisions for appeal are an essential part of the proceedings for the condemnation of land for public uses, and we cannot say that the legislature would have passed that portion of the act providing for such condemnation without giving the parties interested the right of appeal and a trial de novo in the circuit court. It may happen that valuable properties are to be condemned, even to the taking of homesteads. Justices of the peace are frequently chosen who are not learned in the law, and the proceedings before the j ustice with a jury in such cases may not always result in justice between the landowner and the city; and the legislature very probably had in mind that on appeal, where the jury were under the control and direction of the circuit court, a more just result might be reached, or where the court, on motion for confirmation, might set aside the findings for misconduct of the jury, as was held in Fort-Street Union Depot Co. v. Backus, 92 Mich. 33.

We are compelled to hold that chapter 25 of the act, which provides for taking private property for public use, is unconstitutional, and that the court below was not in error in refusing to proceed thereunder.

The writ must be denied.

The other Justices concurred.


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    MOON v. MILLS.
    1. Easements — Right of Way — Obstruction of Axley — Injunction.
    The owner of a perpetual right of way in a private alley on which his property abuts will not be restrained, at the suit of another abutting owner having the same rights, from maintaining therein an obstruction beneficial to himself, unless the complainant shows that he is incommoded thereby.
    2. Same — Prescriptive Right.
    Prescriptive rights may be acquired in land laid out for an alley.
    Appeal from Livingston; Smith., J.
    Submitted January 3, 1899.
    Decided January 20, 1899.
    Bill by Orrin N. Moon and another against Wesley J. Mills to compel the removal of obstructions from an alley. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Judd Yelland, for complainants.

      W. H. S. Wood, Louis E. Howlett, and W. P. Van Winkle, for defendant.
   Long, J.

This bill was filed to compel the removal of a certain platform, stairway, and water-closet from and out of an alley situate between the premises of the complainants and the defendant. The alley is 12 feet wide and 160 feet long, extending from the street to another alley at right angles with it. The complainants’ premises, which are 24 feet in width, abut in the rear upon this first alley, and extend through to East street, upon which their store fronts. The defendant’s premises, upon which there are three brick stores, face on Main street, and extend te the alley in the rear. The obstruction complained of is a platform 29 feet 10 inches in length, .extending partly across the rear end of the second story of defendant’s buildings. Leading down from the platform into the alley is a stairway about 35 inches in width. The platform is held in place by brackets fastened against the wall, 12 feet from the ground. The water-closet is beneath the stairway, and not extending so far into the alley as the stairway itself. The stairway and platform are used for the purpose of reaching the second story of de- k fendant’s buildings, these stories being used as offices, living rooms, and dressmaking parlors.

The defendant purchased his premises from the heirs of Almon Whipple, in 1880 and 1881. The alley in question also belonged to that estate. The deeds to the defendant, after describing the property, recite:

“Together with a perpetual right of way twelve feet wide, parallel with Main street, extending from Clinton street south to the alley on lot number 33 of Cowdry’s addition, running parallel with Grand River street, which right of way is to be used in common by the parties of the second part, their heirs and assigns, • and the owners, their heirs and assigns, of the several lots and parcels of land lying west and bordering on the above-described alleys, according to the recorded plat,” etc.

Soon after the defendant purchased his premises, these three store buildings were erected, and three different stairways built in the alley leading to the upper rooms of the stores. Fires occurred in the buildings some time in 1887, when the three stairways were rebuilt. No objection seems to have been made to these obstructions by any one until the complainants purchased their property, on the opposite side of the alley, in 1897. While complainants were building their property, defendant took down the three stairways, and erected the platform and one stairway instead. No objection was made by complainants to these changes while they were being made.

The case was heard in open court, and the bill dismissed. Complainants appeal.

We think the testimony shows conclusively that the complainants are not injured in any manner by these obstructions. The land in this alley was never dedicated to the public by any plat, and the only ones interested in the alley are those whose property abuts thereon. Under the deeds to the defendant, he has a perpetual right of way in the alley. Any encroachment must become a serious inconvenience to the parties having the right of way before it becomes a nuisance. The claim of complainants is that, as matter of law, they are entitled in a court of equity to a removal, though they show no equitable reasons why it should be so ordered. This contention cannot be sustained. The true rule is that one of the owners in common of a way, who erects an obstruction on his part, beneficial to himself, and which does not tend to incommode one who has an equal right, cannot be compelled to remove such obstruction. 19 Am. & Eng. Enc. Law, 113.

There is another reason which prevents the complainants from sustaining their claim. The defendant obtained his deeds in 1880 and 1881, and in the following iyear erected his buildings, and from that time to the present has occupied the alley by the stairways erected in the alley in the rear of these buildings. There has been a continued, uninterrupted use of the alley by the stairways, under a claim of right, for more than 1? years prior to the time of filing the present bill. Prescriptive rights may .be acquired in an alley, though it was laid out as such. Vier v. City of Detroit, 111 Mich. 646. Title may be acquired to a public highway by adverse possession. Village of Essexville v. Emery, 90 Mich. 183.

The court below was correct in dismissing complainants’ bill. That decree will be affirmed, with costs.

The other Justices concurred.


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    LOWRY v. BENNETT.
    1. Mortgages — Assignment as Collateral — Authority of
    Assignee.
    One who holds an assignment of a mortgage as collateral security may receive payments and give a valid discharge; especially if the assignment in terms authorizes him to do so.
    2. Same — Erroneous Entry of Discharge — Constructive Notice
    —Bona Fide Purchaser.
    A purchaser of real property is not chargeable with constructive notice by the terms of an indorsement by an assignee of a mortgage on the land, opposite the record of the mortgage in the office of the register, reading, “In consideration of the full payment of all moneys secured to be paid, I hereby discharge the same of record,” that the indorsement was intended to refer to an assignment of the mortgage as collateral security, and not to the mortgage itself.
    Appeal from Van Burén; Buck, J.
    Submitted January 3. 1899.
    Decided January 20, 1899.
    Bill by George Lowry against Alvin Bennett and others to foreclose a mortgage. From a decree for complainant, defendant Bennett appeals.
    Reversed.

      T. J. Cavanaugh, for complainant.

      Benjamin F. Heckert and Howard, Boos & Howard, for appellant.
   Montgomery, J.

This is a bill brought to foreclose a mortgage given September 27, 1886, by James Lowry to the complainant. The mortgage is in the sum of $400, payable five years from date, with the privilege of paying $100 or more at the end of any year after the first two years. This mortgage was duly recorded, and on the 15th day of January, 1887, an assignment of the mortgage was made to the Paw Paw Savings Bank. This assignment constituted the assignee the attorney of the assignor, to, in case of payment, give acquittance or sufficient discharge as fully as the assignor might do, and contained a recital that the assignment was made as collateral to a loan of $100, made, at the date of the assignment, by the bank to George Lowry. On the 2d of January, 1889, the cashier of the bank, in the presence of the register of deeds, entered opposite the record of the mortgage in the office of the register an indorsement reading:

‘ ‘ In consideration of the full payment of all moneys secured to be paid, I hereby discharge the same of record as cashier of the Paw Paw Savings Bank.
■ “John W. Peee,
“ Cashier of Paw Paw Savings Bank.”

The defendant Bennett, on the 30th of January, 1889, bought a portion of the land covered by the mortgage, in . good faith, relying on an abstract showing a dischai'ge of the mortgage. He also gave testimony tending to show that complainant was present at the time he made this purchase, and that he assured him that the mortgage was paid. The court found against the defendant on this question of fact, and we think rightly. The complainant gave testimony showing conclusively that the entry opposite the mortgage was a mistake; that the intention was to discharge the assignment, and not the mortgage. The question, therefore, is whether the complainant is, notwithstanding the discharge, entitled to foreclose the mortgage as against defendant Bennett. The circuit court held that he was, and defendant Bennett appeals.

The complainant contends that the recital in the assignment that the same was made as collateral to a loan was notice limiting the right of the assignee to receive payment and discharge the mortgage, and that the wording of the discharge itself was unusual, inasmuch as the mortgage was not named in the release; that, at least, the purchaser was put upon inquiry by these circumstances. We think it is clear that one who holds an assignment of a mortgage as collateral security may receive payment and give a valid ■discharge. 1 Jones, Mortg. § 963. This is generally true, but more certainly is it true when, as in the present case, the assignment contains an express authority to receive ■payments and give a discharge. We discover nothing in the wording of the discharge which, taken alone or read in connection with the assignment, suggests the idea that it was intended to apply to any other than the mortgage itself. It was entered on the margin of the mortgage, •and it is very technical to say that it does not refer to it. Moreover, the use of the word “discharge” is not common in referring to an assignment of a mortgage. The defendant is entitled to protection as a good-faith purchaser. Sheldon v. Holmes, 58 Mich. 138; Ferguson v. Glassford, 68 Mich. 36; Moran v. Roberge, 84 Mich. 600.

Decree reversed and bill dismissed as to defendant Bennett.

The other Justices concurred.