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    AUDITOR GENERAL v. BOARD OF SUPERVISORS OF BAY COUNTY.
    1. Taxes — Accounting Between State and County — Mandamus —Set-Oef.
    In mandamus proceedings by the auditor general to compel a county to collect and pay to the State the amount of an alleged indebtedness, the county cannot set off moneys that it had previously paid to the State in excess of the amount legally demandable.
    2. Same — Contesting Validity of Charges.
    Where the petition in such case states the account between the State and the county from a specified date, the county may contest the validity of any of the items embraced within the account, although a balance shown to be due to the State at a subsequent date was paid by the county.
    3. Counties — Excessive Apportionment of State Tax — Remedy.
    A county which has collected the State tax apportioned to it cannot refuse to pay over any part of the same on the ground that thé apportionment included territory that had been detached and organized into another county, but it must look to the new county for reimbursement.
    4., Accounting Between State and County — Interest on State Tax
    Section 43 of the tax laws of 1882, 1385, and 1891, respectively, authorized the town treasurer to retain from the State and county taxes collected by him a sum sufficient to fill any deficiency in the school fund, and required the county treasurer to retain the amount thus reserved out of the first moneys received from township taxes. Held, that interest on State taxes so withheld was properly chargeable to the county, under the provisions of the several laws for the adjustment of accounts between the State, county, and township by mutual charges of interest.
    5. Same — Collection Fees.
    Under section 74 of the tax law of 1889 (No. 195), providing that a collection fee of 4 per cent, should be added to all taxes returned to the county treasurer, and that when paid to him it should belong to the general fund of the county, and, when paid to the auditor general, to the general fund of the State, such fee, when realized by sale or redemption at the county treasurer’s' office, belonged to the county, rather than to the State.
    6. Same — Tax Law of 1889 — Clearance Sale op State Tax Lands — Constitutional Law.
    While, under the tax law of 1869, as between State and county, the latter was entitled to credit for all taxes returned as delinquent, the county, by the terms of section 124, became a guarantor of their ultimate collection; and since 1882, pursu-' ant to existing tax laws, the county has received credit for the delinquent State tax only, and lands bid in to the State are held “ for the use of the State, county, and town, in proportion to taxes, interest, and charges due each.” Section 71 of the tax law of 1889, providing for the sale of lands bid off in the name of the State for taxes assessed in previous years, at a minimum bid of 25 per cent, of the amount due thereon, the loss to be borne by the several taxes pro rata, was valid, therefore, as to lands bid off to the State for taxes assessed subsequent to 1869, and the county was properly chargeable with its proportion of the resulting loss.
    7. Same — Sufficiency of Title to Act.
    The title to the tax law of 1889, i, e., “An act to provide for the assessment of property and the levy of taxes thereon, and for the collection of taxes heretofore or hereafter levied,” was sufficiently comprehensive to include the provisions of section 71, authorizing a clearance sale of State tax lands.
    8. Tax Law of 1885 — Void Sale — Refunding.
    The tax law of 1885 (No. 153} was prospective only in its operation, and sales thereunder for delinquent taxes assessed under the law of 1882 were void, and could not be validated by subsequent legislation. Where the title to land conveyed by virtue of such a sale was declared void, however, the auditor general was justified under section 104 of the act, on presentation of a certificate from the trial judge, in refunding to the purchaser the amount paid, although neither the Stale nor the county was a party to such suit.
    9. Same — Amount Chargeable to County.
    In such case, the county is chargeable with the amount ol the county and township taxes, under the provision of said section that, “if the error originated with the township or county officers, the proper amount shall be charged back to the county.”
    10. Constitutional Law — Pay of State Troops — Title of Act.
    Act No. 169, Pub. Acts 1885, entitled “An act to amend * * * section No. 915 of Howell’s Statutes, relative to the compensation of State troops,” which authorizes the auditor general to allow the bills of the militia for services rendered in aid of the civil authorities, and to charge to the proper county the amount paid thereon, is not unconstitutional on the ground that the object of the act is not expressed in its title.
    11. Sajie — Claims Against County.
    Said act is not repugnant to article 10, § 10, of the Constitution, providing that the board of supervisors shall have the exclusive power t.> prescribe and fix the compensation for all services rendered for and to adjust all claims against the county. The service of the militia is the service of the State, and their compensation a claim against the State; and the latter has the right to have a portion of the public revenue applied to the discharge of its obligation.

      Mandamus by Stanley W. Turner, Auditor General, against the board of supervisors of Bay county and William V. Prybesld, county treasurer, to compel respondents to collect and pay to the State an amount alleged to be due to the State from the county.
    Submitted June 25, 1895.
    Writ granted October 10, 1895.

      Fred A. Maynard, Attorney General, and A. A. Ellis, for relator.

      Isaac A. Gilbert, Prosecuting Attorney (McDonell & Hall, Lee E. Joslyn, and U. R. Loranger, of counsel), for respondents.
   Hooker, J.

The relator seeks to compel the officers of Bay county to collect and pay to the State upwards of $100,000, which he claims to be due to the State from said county. He professes to claim only sums which have been collected by said county since December 31, 1884, alleging that at that date said county had overpaid the State, and that the State soon after paid to said county the sum of $95, in full of the balance due to the county. The county admits this payment, but alleges that at the time it was made the State was indebted to the county for a large amount, which it had paid, and the State received, under the mistaken belief that it was a valid obligation against the county, and it asks that this sum be allowed in reduction of relator’s claim. Apparently the county had paid all claims made by the State up to December 31, 1884, and something more, and it asks that the correct amount be ascertained, and allowed against the relator’s claim. In other words, the county desires that the account between itself and the State from 18G9 to the date of filing the petition be examined, and a balance struck, disregarding the fact that on December 31,1884, a sum was paid by the State as a balance due upon account. It denies that there was a settlement at that time, and questions the authority of the county treasurer to make a valid settlement.

Whatever may be thought about the power of the treasurer to settle, or of the effect of his acceptance of the $95, it is plain that the State received the funds from the county; and, if it received more than it was entitled to, the most that can be said is that the county had a meritorious claim against the State for the excess, and this we are asked to enforce against the State in this proceeding. If this is a just claim upon the part of the county, it can amount to no more than a claim against the State for money paid to the use and benefit of the county, which, it has been repeatedly held, cannot be made the subject of an action against the State, as a State cannot be sued without its consent. The case of Ambler v. Auditor General, 38 Mich. 74G, is.in point, and closely resembles the present case, except that here the proceeding was instituted by the auditor general, while in that case he was respondent in a mandamus proceeding, upon relation of the county treasurer. But in that case, like this, the amount in controversy was money paid to the State treasurer under a mutual mistake of law, and the court denied relief, expressing doubt of the propriety of interference with matters of a purely public and executive nature, where the auditor’s action is not purely mechanical.

“While there is, no doubt, some difficulty in drawing with precision any exact line of jurisdiction, we think it very clear that, where money has gone into the State treasury, not as a separate and independent item wrongfully received, but as part of a general balance rightfully received, the recovery of it from the State, if not voluntarily allowed within the authority of some proper officer, must fall within the same rules that would apply to any other pecuniary demands against the State. ' If this money had been found in a city or county treasury among- the book balances or other charges or credits, or if it had been retained by an individual upon an error in stating accounts, it could not be distinguished from other causes of action usually prosecuted in a suit for money had and received. It is simply so much money kept back out of the collections made by the State for the benefit of the county. If the State could be sued, it would certainly not be a proper case for mmdamus. The fact that actions will not lie against the State does not change (.he nature of the claim, or make it anything but a State debt.”

This subject was again before the court in the case of Auditor General v. Van Tassel, 73 Mich. 29. Mr. Justice Campbell reviewed the case of Ambler v. Auditor General, emphasizing the rule there stated. In the case of Auditor General v. Board of Supervisors of Shiaiwassee Co., 74 Mich. 537, Mr. Justice Long reaffirms the doctrine, and distinguishes between cases where the illegal charge is made the subject of proceedings on behalf of the State (o collect and those where it is sought to be introduced as a set-off or counterclaim, the same having been already paid to the State. The doctrine was recognized in the case of Auditor General v. Board of Supervisors of Midland Co., 84 Mich. 121, but was held not applicable to the facts in that case. We must therefore hold that claims on behalf of the county which arose before December 31, 1884, cannot be considered.

The county may, however, question the validity or amount of any item of the relator’s claim, and several important questions arise in relation to the charges made against the county since December 31, 1884., Since that date the account has been running, balances having been struck by relator from time to time; but the balance against the county has varied, and, as a rule, has steadily increased. It is said on relator’s behalf that on December 24, 1886, the county paid in cash the balance due the State, as shown by a quarterly statement rendered September 80, 1886, and it is urged that this precludes inquiry back of that date; but the petition contains a statement of account, starting, as already said, in 1885, and showing annual balances carried forward. Relator’s claim is based upon the theory of an open,- unsettled account from that date. There is, therefore, force in the claim that none of these items has been paid, so as to preclude the respondents from questioning its validity.

Inasmuch as the respondents’ right to contest is limited to the claims presented, it is unnecessary to investigate items back of January 1,1885. This eliminates several questions argued at length in the briefs.

The practice in the auditor general’s office was to charge to each county the State taxes assessed. The county was credited with such cash as was paid upon such taxes, and by the amount of State taxes in the delinquent list. Later it was charged with such sums as the county treasurer reported collected by him upon such lists, and he was credited with payments upon such collections when made. In addition to this account, a general account was kept with the county, in which other items were charged and credited; e. g., for the year 1885, the treasurer was charged on December 31st with interest on balances and on taxes charged back, an item for cash paid for deaf and dumb, amounts paid for State troops in aid of civil authorities, delinquent taxes refunded, and items of cash paid by the State on collections made by it, and cash received by the county treasurer on redemptions of State tax lands. The county was credited with items of caish collected by the State. Of all these items none go back of December 31, 3884. Each account shows a balance due the State, and such balances are carried forward in their respective accounts, and constitute the first items for the succeeding years, and there has never been a time, so far as the petition shows, when there was not such a balance at the end of the year.

Arenac County Taxes.

Among the questions raised by respondents is one that affects the amount of taxes apportioned to Bay county. In the year 1883 the legislature detached a portion of the territory within the county of Bay, and organized the county of Arenac. When the State tax was apportioned, the auditor general apportioned it upon the valuation of Bay county as shown by a former equalization by the State board, which included all of the territory formerly within the county of Bay. The effect of this was to impose upon Bay county the State taxes properly belonging to, and which should have been apportioned to, Arenac county. Correspondence was had about the matter, and the auditor general asserted that the course taken was the proper one; that Bay county should assess and collect the tax, and adjust the matter with the county of -Arenac. The board of supervisors of Bay county thereupon apportioned the State tax, and it was collected. It is now contended that the apportionment was illegal to that extent, and that the amount is not a valid charge against the county. It cannot be denied that the apportionment to the county of Bay was excessive, but it is-difficult to distinguish between this excess and one arising in any other manner. Apportionments of State and county taxes are often incorrect and excessive as to one or another locality, and, while the proper officers might be justified in not assessing or collecting such excess, it is not so clear that they may refuse to pay it over after it has been collected. Township and county treasurers receive the State tax as agents of the State. As said in the case of Auditor General v, Van Tassel, 73 Mich. 33:

" “The supervisors have no more control over the money in his hands than if it were in the State treasury. It is a distinct trust fund, and can no more be stopped there, and devoted to county purposes, than it could be attached or garnished for the county, or for any one to whom the county is indebted. There is no point of view in which this money can be allowed to be impounded or retained in his hands which does not involve every element of a suit against the State. It would be a very dangerous-doctrine to allow the revenues o-f the public to be tampered with while in process of realization. If such considerations can prevail in any case, they must prevail in all cases where the treasurer should see fit to set them up. A defense which can be lawfully made cannot be-disposed of until the final hearing, and the final hearing, must await the determination of issues of fact, and the lapse of time required to dispose of them in the usual-course of trial. The State would soon become bankrupt if any county officer can, at his will, raise questions concerning the balance of accounts, and keep the money till they are settled.”

We think, therefore, that the respondents must be left to their legal remedies against the county of Arenac, if they have not already been reimbursed. Board of Supervisors of Ontonagon Co. v. Board of Supervisors of Gogebie Co., 74 Mich. 724.

Interest on State Taxes Retained by Townships.

The relator’s account contains annual charges for interest on balances. It is claimed by respondents that these are excessive. Most of the charges alleged to be incorrect are covered by what has been said in relation to matters of set-off. Respondents assert that these items include amounts for interest upon State taxes collected by the township treasurers, and withheld to make good temporary deficiencies in the school fund. These items are-said to have covered the years between 1885 and 1893. The authority for the course pursued by the township is-found in the tax law of 1882 (section 43, Act No. 9), which provides as follows:

“Within one week after the time specified in his warrant, the town treasurer shall pay to the county treasurer-all State and county taxes collected, except that from the State and county taxes collected he may retain a sum sufficient to fill any deficiency in the sum collected for school purposes, but the amount so retained shall not exceed the total delinquent school taxes returned, and the county treasurer shall retain the amounts thus reserved out of the first moneys received by him from any township taxes.”

This provision was retained in the tax laws of 1885 and 1891. The amounts withheld were large, running from $9,000 to $25,000. Respondents assert, but it does not seem to be an established fact, that the average time that interest was charged was one year. Nor is there tangible evidence before us from which we can determine the amount of such interest included in the relator’s claim. It is apparently conceded, however, that the account embraces a greater or less.amount arising from this source. Respondents maintain that the county should not be required to pay interest upon money not received, while relator’s contention is that it must pay over all State taxes collected’ reimbursing itself from collections of township taxes made by the county treasurer, as contemplated by section 43, quoted above.

The scheme of taxation in this State involves the opportunity to pay all general taxes in the township, and accounting between the township and county treasurers, and in turn between the county and State offices. The law prescribes the time for payment of county taxes to the county treasurer and of State taxes to the Stale treasurer, and section- 71 of the tax law of 1882 provides for the adjustment of accounts between the several offices by mutual charges of interest. If the township collected and withheld State money, the State should have interest upon it, which, from the methods of doing-business as prescribed by law, it could only receive from the county. If the treasurer of Bay county did not receive these taxes at the proper time, the county should have charged, and perhaps did charge and collect, interest from the township; and, if not, its failure to do so cannot affect the State. We think, therefore, that interest was lawfully charged upon such items.

Collection Fees.

Section 31 of Act No. 195, Pub. Acts 1889, provides for the collection of 4 per cent, collection fees, if the tax be paid after January 1st. Section 74 provides that a collection fee of 4 per cent, shall be added to all taxes returned to the county treasurer, and that when paid to the county treasurer it shall belong to the general fund of the county, and when paid to the auditor general it shall belong to the general fund of the State. Section 52 provides for the commencement of proceedings to enforce collection by the auditor general, in the name of the State, of the taxes, interest, and charges, including a collection fee of 4 per cent. Under these, sales are made by the county treasurer to the person who will pay the tax, interest, charges, etc., for the smallest undivided fee-simple interest in the land taxed (see section 62), and for want of bidders the land is bid in for the State. Subsequently the land may be redeemed a.t the office of either the auditor general or county treasurer. Relator claims that upon such sale or redemption the collection fee belongs to the State, wherever made, and he has accordingly charged it to the county. We think this was not intended. The addition of the 4 per cent, fee is at all places charged as a collection fee. One per cent, is charged from the first. Upon the failure of the person taxed to pay voluntarily, an additional charge of 3 per cent, is made, and this charge of 4 per cent, is not lost-sight of after, but is a part of the amount whenever and by whomsoever the tax is collected. No part of it is paid to State or county upon collections made by the township treasurer. Section 74 expressly provides that it shall go to the county or State as the one or the other office may receive it before sale, thus indicating that it is a collection charge, rather than a penalty intended to reimburse the State for the expense of its advertising and other expenses of sale. We think, therefore, that it should be governed by section 74, and, when the money is realized by sale or redemption at the office of the county treasurer, it should belong to the county; and therefore that such item with the interest, amounting — as we understand it to be conceded — to the sum of $2,505.29, should be deducted from the relator’s claim.

Loss on Sale of Lands Bid to the State.

The tax law of 1889 (section 71) provided that lands bid off in the name of the State for taxes assessed in previous years should be sold at the time of the annual tax sales. Accordingly such sales were made in Bay county, and they resulted in a loss, a fraction only of the amount charged being realized. The act authorized such sales upon a bid of 25 per cent, of the amount due, the loss to be borne by each tax as classified pro rata. It is now claimed that this sale was unauthorized, .upon the ground that the legislature had not the power to require such sale, resulting in loss to the county. The county is not asked to respond to the State for a loss to the State, but the county asks the State to make good its loss upon local taxes. If it has any right to compensation, it is because the State was its debtor upon the sale of such lands to the State.

Several cases are cited to sustain the proposition that the counties are not liable for losses arising from sales of land bid in to the State. The question arose under the law of 1869 (section 124), which provided for the sale of such lands remaining unsold at the expiration of five years from the time that they were bid off to the State, and that the county should be credited with gains and charged with losses arising from such sales. No limitation was placed on the amount for which such lands might be sold, except that it be to the highest bidder. In the case of Auditor General v. Supervisors of Monroe Co., 36 Mich. 71, it was held that, under the law existing previous to 1869, the State only was interested in lands returned delinquent, that the amount due upon such lands was applicable in discharge of the county’s liability to the State, and that losses upon sales of lands bid in to the State must be borne by the State, and that the provisions of section 121 of the law of 1869 could not be treated as retrospective, but prospective only. Under that decision all taxes returned delinquent were charged to and became the property of the State, and, while it was intimated that, as a matter of future policy, section 121 “might fairly be considered as a means of ultimate collection, by making a county a guarantor, not only of the validity of the taxes, but also of the marketable value of the security,” it was not determined whether the law was valid or invalid. It was only held that it could not apply to taxes levied under previously existing laws. This decision has been followed in several cases arising upon taxes assessed previous to 1869. Auditor General v. Board of Supervisors of Saginaw Co., 62 Mich. 589, 597; Auditor General v. Board of Supervisors of Shiawassee Co., 71 Mich. 517; Auditor General v. Board of Supervisors of Ottawa Co., 76 Mich. 297; Auditor General v. Board of Supervisors of Midland Co., 81 Mich. 126. In each of these cases the items complained of by the respective counties arose under laws existing prior to 1869. We understand that not .to be so in the case before us.

The law of 1869 seems to have followed previous laws so far as to make the delinquent list a county credit. Section- 68 provides that the amount thereof “shall be placed to the credit of the proper county,” etc. Section 87 also provides that lands not sold to private biddets, etc., shall be “bid off for the State.” But section 121 expressly provides that lands bid in to the State shall be sold subject to the same conditions and restrictions in other respects as are now, or may hereafter be, provided by law in regard to other State tax lands, and that losses shall be charged to the county. As intimated in Auditor General v. Supervisors of Monroe Co., this provision, if valid, makes the county a guarantor of the value of the land to the extent of the tax and charges, and this the legislature might lawfully do-.

The case of Auditor General v Supervisors of Monroe Co. was decided in April, 1877, and the tax law passed in 1882 appears to have been made with this decision in view, for it differs in important particulars from previous laws. By section 49 it was made the duty of the county treasurer to make and forward to the auditor general a transcript of the delinquent list; but the important provision of-section 68 of the law of 1869, that “when received by the auditor general, the amount thereof shall be placed to the credit of the proper county,” is omitted. The law changed the method of procedure in relation to sales for delinquent taxes, introducing the present practice of a petition and decree in chancery as a foundation for the sale. Section 63 contains a significant change, providing that, where the lands cannot be sold to other bidders, the treasurer shall bid off the same, not for the State or to the State, but “in the name of the State, for the use of the State, county, and town, in proportion to taxes, interest, and charges due each. We have no doubt that the changes made by the law of 1882 were intended to change the law of 1869 in an important particular. Under that law the county was a guarantor. Under that of 1882 the State bid off the lands for the benefit of the county and town, as well as itself. It is apparent that the State was not to accept delinquent local taxes of county and town upon the claim for State dues. It undertook their collection with its own, and was to account for them when collected. Whatever may have been the practice before 1882, since that time only the delinquent State taxes have been credited to the counties, and we think that such practice was warranted by each of these laws discussed.

Section 71 of the act of 1889 is attacked as unconstitutional, but we think otherwise. In our opinion, the title of the act was broad enough to cover this, which was but a provision for the collection of taxes still unpaid, and, as already shown, the laws under which these taxes must have been assessed omit the provisions which impose upon the State the burden of losses upon local taxes. We think, therefore, that these losses on State tax lands were chargeable to the county.

The Briggs Tax Title.

In October, 1885, and 1886, Eben N. Briggs purchased land at tax sales held under the provisions of the law of 1885 for taxes assessed under the law of 1882. These sales were admittedly void, and Briggs acquired no title. by the deeds which the auditor general subsequently executed and delivered to him. An action of ejectment was commenced by Briggs to recover possession of the lands. The facts were stipulated, and he was defeated. Upon presentation of a certificate from the circuit judge, as provided for by section 104 of Act No. 153 of the Laws of 1885, the money was refunded to Briggs by the auditor general, and the amount charged to the county. It is now contended that the act of 1885 was prospective merely, and did not authorize the auditor general to refund these taxes, and that, if it did, the error was not that of a local officer, and that the amount could not be legally charged to the county, under the provisions of section 104.

The court has held the act of 1885 prospective merely, and applicable only to taxes thereafter to be assessed. Hence there was no authority to sell under this law, and the attempted sale is void. The sale was made by the direction of the auditor general, and was the result of a mutual mistake of law on the part of himself and the county treasurer, by means of which State, county, and township realized a tax which, has since been paid back by the State. It is said that the law of 1885 cannot apply, because it was prospective in its operation merely. The sale was, as a matter of fact, made under the law of 1885, and could have been made under no other, for there was no other then in existence. It turned out that this sale was void, because the tax in question could not be thus collected. The law did not warrant the sale. The same would be true if there had been no apportionment or equalization. It has been held in several cases that the act of 1885 was prospective only in its operation, and that sales for delinquent taxes, assessed under the law of 1882, were void, and no title was acquired under the purchases at such sales. It was further said that such sales could not be made valid, and that until the legislature should provide a means for enforcing the lien of such taxes they could not be collected by process of law. But in this case they were collected, by a sale made by the county treasurer, in accordance with the provisions of the law of 1885, notwithstanding the fact that such law had no legal application. This was the result of a mutual mistake of law upon the part of the auditor general and the county treasurer, and State, county, and township profited thereby, each realizing the amount of its tax upon the premises. It is admitted that, as a general rule, the purchaser at a tax sale buys at his peril, and that he cannot have his money refunded except in accordance with an express provision of law permitting it, and that there is no such provision, unless the act of 1885 applies to this sale. If it can be said that such provision does not apply to sales made before the act took effect, — a question not before us, — it does not necessarily follow that sales made afterwards are on the same footing. The former, when made, were based upon other existing statutes. This sale had no such foundation. A valid lien existed, but the means of legally enforcing it had been taken away. A new procedure was supposed to have been provided, and under this a void sale was made. Wherein was such sale different from any other void sale that might subsequently be made under the law of 1885 for an invalid tax levied under that act? Both sales would be without foundation, both made under the mistaken belief that they might lawfully be made under such law. The only difference appears to be that when the tax in question was assessed a different procedure existed, which was abolished before the State was able to enforce its lien, which then existed and still exists. If the State had not the power to change such method, there would be more force in the contention. But it had such power. Proceeding under this law, money was obtained at a sale, without warrant. By its express terms such moneys might be refunded, and we think that Briggs had a just claim, which the auditor general might lawfully pay upon presentation of a proper certificate.

It is contended that the certificate was void, because neither the State nor county was a party to the ejectment suit. The State is the source ,of power; counties and townships being agencies of government, upon which certain duties in the way of collecting and disbursing the revenue are imposed. We have no doubt that the refunding of taxes might be committed to the judgment of the auditor general, as is the rejection of lands from the delinquent lists, where, in his judgment, they are wrongly assessed, or he is satisfied of previous payment. In neither of these cases is the county or township represented. The State deals with its own, and neither the county nor the township can be heard to complain that it had no hearing. So here the law points out what shall be evidence justifying a refunding of the purchase price and cancellation of the deeds, which is no new practice. We think that the auditor general acted upon sufficient evidence, and was justified by section 104 of the law of 1885 in the cancellation of these deeds and in refunding the tax to Briggs.

It remains to inquire whether he could lawfully charge it to the county. Two sections of the act are thought to hear upon this question, — 81 and 104. Section 81 provides that losses sustained by the default of any officer shall be charged to the municipality which he represents,- — i. e., township, county, or State, as the case may be. Section 104, after the provision for refunding, contains the following language, viz.: “If the error originated with the township or county officers, the proper amount shall be charged back to the county.” In one sense this error originated with the auditor general, for he directed the sale, and caused publications of the list. On the other hand, this was harmless, had not the treasurer made the sale, and received the' money therefor, which presumably has been accounted for to the State, county, and township. As already said, the lien still exists, when the State shall see fit to enforce it. Until it does, neither State, county, nor township has a right to the money. Equitably the State should stand its share of this sum, and county and township should contribute to reimburse the State for the balance paid. If this were an incurable error, by which, through the default of one or another officer, the tax was irretrievably lost, it would fall within section 81; but it is not. In fact, it can hardly be called a default, in such a sense. By unlawful zeal of both State and county officers, instead of an omission, the State, county, and town have obtained something to which they were not entitled. Under such circumstances we think section 104 applies, and the county should be charged with all but the State tax, which Should be deducted from relator’s claim-; the county and township taxes being, under such circumstances, the “proper amount” to be “charged back to the county.” Section 104, Act No. 153, Pub. Acts 1885.

Expenses of State Troops.

But one question remains. In July, 1885, upon requisition of the sheriff, the governor sent a portion of the State militia to aid the civil authorities in preserving the peace in Bay county. The auditor general, acting under Act No. 169 of the Laws of 1885, audited the bills of said militia, and drew his warrant for the same upon the State treasurer, and charged the amount to the county. A question was raised over the validity of the governor’s action, it being claimed that the troops were sent without any requisition from a proper officer of the county, but this claim we understand to be abandoned. It is contended that the charge is invalid for the reason that the act is unconstitutional (1) because it permits the auditor general to allow claims against counties without an opportunity to the board of supervisors of being heard; (2) because the only power to allow claims against counties is lodged in the board of supervisors by section 10, art. 10, of the Constitution; (8) because the provision making the county liable is not covered by the title of the act.

The act in question amends a single section of the original act, which was passed in 1862, and was entitled “An act for the reorganization of tliie military forces of the State of Michigan.” 1 How. Stat. § 868 et seq. The section amended, as originally passed, provided the compensation to be paid to the members of the militia. 1 How. S-tat. § 915. It provided that, upon approval and certification of the- commanding officers, the accounts of officers and men should be audited, allowed, and paid by the board of supervisors. The act in controversy is entitled “An act to amend * * * section No. 915, * * * relative to the compensation of State troops,” and we think the title sufficient to- cover all the provisions of the act. The amount -of compensation, and source from which it is to come, are fairly within the title to the original act. The section (915) imposes the burden upon the county, and this section, as amended, does no more, except as to the method of allowance. We think it was unnecessary to make the title more specific.

The duty of preserving the peace is one resting upon the State, it may operate through its duly-constituted agencies, counties and cities, both as to employment of the militia and its compensation. It has seen ñt to confide the question of emergency to the locality, instead of leaving it to the State officers, where it would otherwise naturally belong; and it has imposed the duty of compensation upon the county. It has not seen fit to leave the question of compensation open to the danger of repudiation, by committing the question to boards of supervisors. The law fixes a compensation, and provides for payment by the State, upon allowance by the proper State officer. When paid, the liability of the county does not depend on the opinion of the board of supervisors, either as to the sufficiency of the requisition, the nature of the emergency, or the amount to be paid to the State. All of these things are now definitely fixed by law. It is a charge on behalf of the State, and can be contested only in the courts, if thought illegal or excessive. It is a right of the State to have a portion of the public revenue applied in discharge of a State obligation. If there is a constitutional right to have this submitted to the board of supervisors, it might as well be said that compensation for the care of the indigent insane or deaf and dumb is to be submitted to their discretion, or that this claim for unpaid State taxes should all go before the board of supervisors for allowance. It has never been supposed that the State must submit its claims to the boards of supervisors. To require it would be to set the county above the State. The provision of article 10, § 10, by which the board of supervisors has “exclusive power to prescribe and fix the compensation for all services rendered for and to adjust all claims against” the county, to the exclusion of appeal, has no application to such claims. The service of the militia is the service of the State, not the county, in the preservation of the peace of the State, not the county. Their compensation is a claim against the State, allowed and paid as such, and is a charge against certain revenues raised and disbursed in accordance to law in a certain locality. It was never a constitutional right that such be submitted to the board, and apparently experience has shown that it was unwise to commit the matter to their discretion.

The writ should issue as prayed for the amount claimed, less the sum of $2,505.29 collection fees, and the amount of State taxes, and interest thereon, included in the Brigg's claim, the amount of which we have not on this record the means of determining. If counsel cannot stipulate this amount, a reference may be necessary to determine the same, before the writ shall issue. Neither party should recover costs.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    KENDALL v. BOARD OF EDUCATION OF CITY OF GRAND RAPIDS.
    Municipal Boards — Parliamentary Law — Suspension op Rules —Change op Text-Books by Board op Education.
    Where the rules of an incorporated municipal board, authorized by statute to adopt by-laws and rules of procedure, preclude certain proposed action, but further provide that any rule may be suspended by a vote of two-thirds of the members present, the loss, by a two-thirds vote, of a motion to table the matter so presented, operates as a suspension of the prohibitive rule, and action thereafter taken by a majority vote is valid if otherwise proper. So held on mandamus involving the legality of a change of text-books by a board of education.

      Certiorari to Kent; Grove, J.
    Submitted October 8, 1895.
    Decided October 22, 1895.

      Mandamus by Lauren E. Kendall to compel the board of education of the city of Grand Rapids to rescind its action whereby it assumed to adopt a certain series of textbooks for use in the public schools. From an order sustaming a deinuiTer to 'the petition, relator brings certiorari.

    Affirmed.

      Kingsley & Kleinhans, for relator.

      Henry J. Felker (Fletcher & Wanty and W. W. Taylor, of counsel), for respondent.
   Long, J.

The board of education of the city of Grand Rapids is composed of 24 members and the mayor of the city. It was created under Act No. 344, Laws of 1873, as amended by Act No. 451, Local Acts 1887. Section 11 of the amended act prescribes the powers and duties of the board as follows:

“The board of education of said city shall have power and authority to designate and purchase school-house sites; to construct and erect school buildings, and furnish the same; to employ superintendents, teachers, librarians, janitors, and workmen; to provide room, furniture, apparatus, books, and charts and all things requisite for the district library; to provide apparatus and scientific collections for illustration; to establish, locate, and maintain high schools, grammar schools, primary schools, and industrial or manual training schools; to establish and maintain a district library; to purchase, exchange, repair, and improve the school apparatus, books, furniture, appendages, fixtures, text-books, and all other school supplies used in said schools; to supply and loan to all pupils in the several grades and departments of said schools, free of charge, but under such rules and regulations as the board shall' prescribe, all text-books and supplies used and to be used by the pupils of said schools; to collect in and recover back all books and apparatus heretofore loaned and given to indigent pupils of the public schools of said city; to do all things needful and desirable for the maintenance, prosperity, and success of said schools, and the promotion of the thorough education of the pupils thereof; and to adopt by-laws and rules for the procedure of the board, and to make and enforce all needful rules and regulations for the control and management of the schools and district library of said city.”

Section 5067, 3 How. Stat., provides that when textbooks are once adopted by any school board they shall not he changed within five years, except by consent of a majority of the qualified voters of the. district present a;t an annual meeting, or a special meeting called for that purpose.

Harper’s series of geographies had been in use in the schools of Grand Rapids for more than five years, when, on January 5, 1895, notice was given by one of the members that at some future time he would propose the adoption of Frye’s series of geographies. The matter was thereafter presented, and referred to> a committee, who made a report to the board on August 3,1895, recommending the adoption of the Frye series. Twenty-one members of the board were.present. A motion was made to lay the report on the table. The vote was taken by yeas' and nays, 15 members voting nay and 6 voting yea. The motion was declared lost. A motion was then made that the report be adopted, and upon this motion 13 voted yea and 8 nay. The motion was declared carried, and the Frye series adopted. Relator made a petition to the court below asking a mandamus to compel the board to rescind its action, and that in the meantime the board be restrained from incurring any liability on account of such action. The board demurred to the petition. The case was heard in the court below, and the demurrer sustained. The case comes here by certiorari to review the action of the lower court.

The contention of counsel is that the board acted without authority of law, and contrary to its by-laws, rules, and regulations, and especially to rules 13 and 66. Rule 13 of the board provides:

“The committee on text-books shall, from time to time, recommend to the boai’d such changes in the books used in the schools as may be deemed expedient. No action shall be had upon text-books except at a regular meeting of the board, and no text-book shall be adopted which has not been proposed at a regular meeting at least one month previous to its adoption, and no book or books shall be considered adopted which do not receive the affirmative vote of a majority of the entire board. The text-books used and the studies pursued in all schools of the board shall be such, and such only, as are authorized by the board; and no pupil will be allowed to continue in school unless furnished with the required books and stationery, except by permission of the superintendent.. Twenty copies of every book, atlas, or other production, and six copies of every extended map, sought by publisher, author, or agent 'to be introduced into the public schools, must be donated to the board before the same shall be referred to the text-book committee, and all such presentations shall lie on the table one month for examination before the final action of the board. No text-book, song, or printed paper of a sectarian or political character shall be adopted or used in any of the schools of the board.”

Rule 66 provides that any rule or by-law may be suspended by a vote of two-thirds of all the members present.

The contention is that rule 13 was in force, and not suspended, and that upon the adoption of the report two-thirds of the members did not vote in the affirmative. Counsel proceed upon the theory that these rules are binding upon the present board; that under the statute the board was compelled to adopt rules in reference to changes of text-books in the schools. But, however this may be, we think it clear that the board, at its meeting on August 3,1895, suspended rule 13, as provided by rule 66; that is, by a two-thirds vote of all the members present. The motion was made to lay the report of the committee on the table. This was declared lost by a vote of 6 yeas to 15 nays. The report was then by a vote of two-thirds of the members presqpt before the board for action, and there was nothing then before the board but the report to be acted upon. The rule having been suspended, it required only a majority vote to carry it. This was given, and the report adopted. As this action, we think, must settle the case, no further discussion is necessary.

The court below very properly sustained the action of the board, and that order must be affirmed.

The other Justices concurred.


author: McGrath, C. J.

text:
    LANAHAN v. KENT CIRCUIT JUDGE
    Replevin — Non-resident Dependant — Pluries Writs — Dismissal op Suit. '
    The appearance of a non-resident defendant in replevin cannot be forced by the seizure of property and the issuance of successive writs without expectation of service, and where a considerable period (e. g., 11 months) has elapsed since the issuance of the last writ, and no return thereof has been made, the proceedings should be dismissed upon motion, and an assessment of damages awarded.

      Mmdanws by William Lanahan and others to compel William E. Grove, circuit judge of Kent county, to dismiss a replevin suit.
    Submitted October 8, 1895.
    Granted October 22, 1895.

      Rood & Ryan, for relators.
    D. E. Corbitt, for respondent.
   McGrath, C. J.

On the 21st of January, 1893, a writ of replevin issued from the Kent circuit court against property alleged to be unlawfully detained by relators. The writ was returnable February 7,1893. On that date, the sheriff made return that he had seized the property, but was unable to find defendants or either of them. On February 15, 1893, defendants appeared specially, and moved to quash the writ, and that they have judgment for the value of the property taken. On February 20r 1893, the motion was .denied, and on application an aUa» writ was issued, returnable May 20, 1893. June 5, 1893, the sheriff returned that he was unable to find defendants. May 20, 1893, a pluries writ was allowed, returnable August 19, 1893, and returned not found. Other pluries writs were issued August 19, 1893, November 17, 1893, and February 13, 1894, the first two of which were regularly returned, but the last was not returned. On January 14, 1895,- again on February 13, 1895, and again on February 19,1895, defendants appeared specially, and moved to dismiss and for judgment for the value of the property, which motions were denied. Pending the second motion, plaintiff, on February 15, 1895, asked for another pluries, and the same was allowed. Upon the motions made by defendants, it was set forth that, on the same day that the writ of replevin was issued against relators, said relators had caused to be issued out of the same court a writ of replevin for the same property against one Gelock; that said replevin! suit had since been tried, resulting in a judgment in favor of relators. It further appeared that relators were at the time of the issue of' said writs, and ever since have been, residents of the State of Maryland. Relators ask for a mandamus directing the circuit judge to dismiss said proceedings, and award to relators a judgment for the value of the property. The answer admits the facts set forth in the petition.

The appearance of non-residents in a replevin suit cannot be forced by successive writs, issued without expectation of service. The writ may run against any party In possession, and the claimant is thereby fully protected. Alias and pluries writs in such cases should issue seasonably, and with reference to a prospective service. There is no claim that the absence of defendants from the State was temporary, but it is conceded that they were and are non-residents, and beyond the reach of process. When, in January, 1895, defendants moved to dismiss, 11 months had elapsed since the issuance of the last writ, and no return thereof had been made.

The writ will issue, commanding the circuit judge to dismiss the proceedings, and allowing defendants to proceed to an assessment under the statute.

The other Justices concurred.


text:
    GILLIES v. KENT CIRCUIT JUDGE.
    Appeal — Settlement or Bill or Exceptions — Furnishing Transcript or Stenographer’s Notes.
    Under 3 How. Stat. § 6534e2, relating to the stenographer of the Kent circuit, which provides that, if it shall be necessary to procure a transcript of the stenographer’s notes in order to remove a case to the Supreme Court, and the trial judge shall certify to such necessity, the appellant, if he shall prevail, may tax the cost thereof, and that said transcript may be used by the opposite party in proposing amendments to the record, the trial court, upon a certificate that a transcript of the whole or of certain parts of the testimony is necessary in order to settle a bill of exceptions, may require the appellant, at his own expense, to furnish such transcript to the appellee, to enable the latter to prepare amendments to the bill.

      Mandamus by Edwin J. Gillies and another to compel Allen C. Adsit, circuit judge of Kent county, to vacate an order requiring relators to furnish a transcript of the stenographer’s notes as a prerequisite to the settlement of a bill of exceptions.
    Submitted October 8, 1895.
    Denied October 22, 1895.

      Hatch & Wilson, for relators.

      Wesley W. Hyde, for respondent.
   Long, J.

Relators were plaintiffs in a suit tried in the Kent circuit court, wherein Alexander D. Esler was defendant. The verdict and judgment having passed against the plaintiffs, they prepared a hill of exceptions on appeal to this'court. The bill was noticed for settlement before the respondent. Counsel for both parties appeared, and respondent made an order requiring the relators, at their own expense, to procure from the stenographer, and furnish counsel for defendant in the suit, a copy of a portion of the testimony taken on the trial, to enable him to prepare amendments to the bill of exceptions. This application is made for a mandamus directing the respondent to set aside such order.

The respondent returns that objection was made by the defendant that the bill of exceptions was incorrect, and a garbled statement of the testimony, and that respondent then made a certiflchte in the cause as follows:

“I hereby certify that, in order to settle a bill of exceptions in the above cause, and remove the same to the Supreme Court, a transcript of the testimony given on the trial hereof is necessary, as follows:
“1. The testimony of Charles E. McCrone in relation to conversations with defendant, and in relation to forwarding reports.
“2. The testimony of Joseph P. Viisner in relation to conversations with defendant, and in relation to correspondence with plaintiffs regarding defendant.”

Further notice was thereafter given by plaintiffs of a settlement of the bill, and the respondent then refused to settle the same until the plaintiffs should have furnished defendant with the testimony as ordered.

The statute relative to the appointment of a stenographer for the Kent circuit provides as follows:

“It shall be the duty of the stenographer so appointed to attend upon the court at each term, under the direction of the court, and to take full stenographic notes of the testimony and other proceedings in the trial of cases, and, in case the counsel for either party shall desire a transcript of the testimony or proceedings, it shall be the duty of the stenographer so appointed to furnish the same, and he shall be entitled to receive therefor from the party so requiring it the sum of eight cents per folio for each folio so transcribed, and such record shall be deemed the official record of the court; and in case it shall be necessary to procure a transcript of said stenographer’s notes of the testimony and proceedings in any case at law or in chancery in order to remove such case to the Supreme Court, and the court shall certify that the procurement of such transcript is necessary in order to prepare the record for hearing in the Supreme Court, then the amount of the stenographer's fees may be taxed, if the appellant shall prevail in the Supreme Court, as a proper disbursement; and said transcript may be used by the opposite party in proposing amendments to the record: Provided, that if the judge shall desire a copy of the testimony and other proceedings upon any trial the stenographer shall make and file the same.” 3 How. Stat. § 6534e2.

It is contended by counsel that respondent was correct in assuming that under the'provisions of this statute he had power to compel the relators, who prepared and .presented the bill of exceptions, to furnish the opposite party with a copy of a part or the whole of the stenographer’s minutes, if the same was necessary to the preparation of his amendments to the bill. We think this contention correct. The statute is very different from that relating to the duties of the stenographer of the Fourth judicial circuit, referred to in Cole v. Ingham, Circuit Judge, 77 Mich. 619. Here the party procuring the testimony, — that is, the appellant, — if he prevail in this court, may tax such outlay as a part of his costs. If the trial court certifies that it is necessary to have a part or the whole of the testimony to enable him to properly settle the bill of exceptions, the party preparing the bill may be compelled to furnish such part or the whole thereof. The statute provides that when so furnished the appellee may use the testimony in preparing his amendments. This seems to be the construction put upon the statute by the trial court, and we think it susceptible of no other construction.

The writ must be denied, but without costs.

The other Justices concurred.

       See 3 How. Stat. § 6522e2 at seq.


text:
    CLUTTON v. CLUTTON SAME v. WAYNE CIRCUIT JUDGE.
    1. Appeal — Order Dismissing Cross-Bill on Demurrer.
    An appeal will lie from an order dismissing a cross-bill on demurrer before a final determination upon the original bill.
    2. Divorce — Discontinuance—Pending Application for Alimony.
    The complainant in a suit for divorce will not be permitted to dismiss his bill upon payment of costs, pending a determination, under an order of reference, of an application by defendant for temporary alimony and solicitors’ fees.
    3. Alimony — Jurisdiction—Waiver.
    An order allowing temporary alimony upon a bill for divorce filed by the husband cannot be assailed upon the ground that it was made without notice, and that the application therefor had been partially heard before another judge of the same court, where it appears that the complainant was present by counsel when said application was called up, and raised no objection to its cons'deration, and that he had previously moved for leave to dismiss his bill before the judge entering said order.
    Jonathan L. Glutton filed a bill in the Wayne circuit against Annie J. Clutton for a divorce. Defendant interposed a cross-bill, which was dismissed on demurrer, and defendant appealed. Complainant moves to dismiss the appeal, and also applies for mandmms to compel Joseph W. Donovan, circuit judge, to vacate an order awarding temporary alimony, and to permit relator to dismiss his bill.
    Submitted October 8, 1895.
    Both motion and writ denied October 22, 1895.

      Franklin L. Lord (John Alkinson, of counsel), for the motion and for relator.

      John Ward, against the motion and for respondent.
   McGrath, C. J.

Annie J. Clutton appeals from an order sustaining a demurrer to her cross-bill, and complainant moves to dismiss the appeal on the ground that the order was not a final order. Complainant, after the order appealed from was made, moved the court below for an order permitting him to dismiss his bill, but the court denied the motion, and complainant asks for a mandamus to compel the court to grant his request.

It appears that at the time that the motion for leave to dismiss was made there was pending an application for temporary alimony and solicitors’ fees. The right of a complainant to dismiss his bill without prejudice on payment of costs is of course,- except in certain cases. 1 Beach, Mod. Eq. Prac. § 450. Irrespective of the question of the pendency of the cross-bill, we think the case comes within the exceptions to the general rule stated. A reference had been made upon defendant’s -application, and pending a determination -of the questions involved in that application defendant had the right to remain in court. I Beach, Mod. Eq. Prac. §§ 451, 452; 1 Barb. Cb. Prac. 225, note 18.

The court afterwards made an allowance as alimony and solicitors’ fees. It is urged that this order was made after the matter of the application had been partially heard before another judge of the same court, and without notice. The judge before whom it is alleged that the matter was partially heard was absent in Europe, and it appears that the motion for leave to discontinue was made before the same judge who finally made the order for alimony. The answer sets up that the complainant’s solicitor was present when the matter of defendant’s application for alimony was called up and presented, and made -no objections to its consideration.

The application for mandamus must therefore be denied.

We think that the order sustaining the demurrer to and dismissing the cross-bill was final and appealable. In Ayres v. Carver, 17 How. 591, it was held that an order dismissing a cross-bill was not appealable, but in that case the order was made at the hearing, but before a final determination upon the original bill, and the court held that the decree pronounced was but partial. The better rule is that a cross-bill is so far an independent suit as to authorize an appeal from a decree dismissing it on demurrer before the final determination of the original bill. 1 Beach, Mod. Eq. Prac. § 446; Brooks v. Woods, 40 Ala. 538; Lehman v. Ford, 47 Ala. 733.

The motion to dismiss must also be denied, with costs in both motions to appellant.

The other Justices concurred.


author: Grant, J.

text:
    COLE v. WAYNE CIRCUIT JUDGE.
    1. Statutes — Incorporation of Provisions of Other Laws by General Reference Thereto — Appeal in Summary Proceedings — Sufficiency of Bond.
    2 How.- Stat. § 8307, providing that appeals may be taken in summary proceedings to recover the possession of land in the same manner as in cases of appeals from judgments rendered before justices of the peace, does not restrict the procedure on appeal to those provisions of the justices’ act inexisterce when said section was adopted in the Revision of 1846, but, rather, is intended to furnish a rule for the conduct of appeals, to be ascertained by reference to the laws in force at the time the appeal is sought to jjre taken. The appeal bond in such case, therefore, may be approved by a deputy county clerk, under 3 How. Stat. § 7000; but the sureties thereon must justify, as provided by section 7001.
    2. Appeal Bond — Failure of Sureties to Justify — Dismissal of Appeal.
    Where the sureties upon an appeal bond fail to justify, as required by 3 How. Stat. § 7001, and the appellant does not proffer a sufficient bond under section 7018, the appeal is properly dismissed.

      Mandmms by William Cole to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order dismissing an appeal.
    Submitted October 8, 1895.
    Denied October 22, 1895.

      John Galloway, for relator.

      George G. Prentis, for respondent.
   Grant, J.

One Anna E. Adams, administratrix of the estate of John Adams, deceased, instituted proceedings against the relator under 2 How. Stat. chap. 286, to recover possession of certain land. The circuit court commissioner rendered judgment in her favor. The defendant took an appeal to the circuit court, filing an affidavit and bond with the commissioner, who made due return to the circuit court. The complainant moved to dismiss the appeal on the ground of a defective bond. The bond was approved by the deputy county clerk, under section 7000, 3 How. Stat. The sureties to such bond did not justify, as required by section 7001, 3 How. Stat.

The proceedings for appeal in this class of cases are regulated by section 8307, 2 How. Stat., which provides that appeals may be taken “within the same time, in the same manner, and return may be compelled, and the same proceedings shall be thereon had, as near as may be, and with the like effect, as in cases of appeals from judgments rendered before justices of the peace.” It is insisted by the respondent that the bond should have been presented to the commissioner who tried the case, and that the proceeding is governed by the law relating to appeals as it existed in Márch, 1847. Several amendments have been made to the section of the justices’ act providing for appeals, the last of which was made in 1885, and is section 7000, 3 How. Stat. Under this act the bond may be taken by any justice within the county, or by the county clerk of tb,e same county. Section 8307 does not limit the procedure upon appeal to the provisions of the justices’ act as they then existed. It provided by general reference to another law, and is intended to furnish, a rule for future conduct, “always to be found, when it is needed, by reference to the law existing at the time when the rule is invoked.” End. Interp'. Stat. § 493; Kugler's Appeal, 55 Pa. St. 123.

2 How. Stat. §§ 7018,7020, provide that no appeal shall be dismissed for any imperfection in the affidavit or bond, provided a new affidavit is made, and a new bond given, to be approved by the court. It is, however, the duty of the appellant to offer a new affidavit and bond, in which case an order nisi is the proper practice. Detroit, etc., Plank-Road Co. v. Wayne Circuit Judge, 27 Mich. 303. In Bradley v. Andrews, 51 Mich. 100, the record shows that a new affidavit was proffered. The bond in this case was defective, in that there was no justification by the sureties. It does not appear that, either on the hearing of the motion to dismiss or the subsequent motion to set aside the order of dismissal, the relator offered to remedy the defect by filing a new bond, or to produce a justification by the sureties. For this reason’he is not entitled to the writ of mandamus. In Detroit, etc., Plank-Road Co. v. Wayne Circuit Judge a new affidavit and bond were proffered. The court was under no obligation to grant an order that the relator did not ask. He stood there insisting that his appeal was valid, and its validity is the sole question before us.

Writ denied, with costs.

The other Justices concurred.


text:
    CHASE v. WARNER.
    1. Will — Charging Legacy upon Real' Estate.
    A will devised and bequeathed to a nephew of the testatrix all of her “real estate, personal property, and household effects,” subject to the provision that he pay certain legacies, and that at his death the realty should go to others named. Held, that the real as well as the personal property was charged with the payment of the legacies.

      2. Promise to Pay Claim op Third Person — Privity op Contract-Remedy.
    A purchaser from a devisee, who agrees, as part of the consideration, to pay a legacy chargeable to his vendor, is not liable to the legatee in an action at law upon said promise, there being no privity of contract between them. Whether the legatee has an equitable remedy, — quaere.
    3. Bill to Subject Land to Payment op Legacy — Parties— Demurrer,
    A bill to subject land to the payment of a legacy is not demurrable on the ground that other legatees, similarly situated, are not made parties, where the bill avers that defendant has assumed and agreed to pay all other legacies, thus opening the way for proof of a novation sufficient to relieve the land from the lien of such legacies.
    Appeal from Barry; Padgham, J., presiding.
    Submitted October 9, 1895.
    Decided October 22, 1895.
    Bill by Hiram M. Chase against Albert Warner to subject certain real estate to the payment of a legacy. From a decree dismissing the bill on demurrer, complainant appeals.
    Reversed, with leave to answer.
    The bill of complaint in this cause contains the following statements: One Susan J. Warner died testate May 28, 1888, leaving a farm of the value of $5,000, and personal property of the value of $2,000. She executed her will April 7, 1888, the material parts of which read as follows:

      “I hereby devise and bequeath all my real estate, personal property, and household effects (with the provisions below stated) to Seth H. Chapman, my nephew.
    “Provisions made that Seth H. Chapman is to pay all the indebtedness that may be outstanding against the said Susan J. Warner, or her estate, at the time of her demise or death. Also, he is to pay all funeral expenses, doctor’s bills, and so forth, that may be made. Also, he is to pay to Ezra Barker $200; $100 to be paid within one year of my death; $100 more of said $200 to be paid at the end of second year, or sooner if Seth H. Chapman wishes to pay it.
    “Also, I further devise and bequeath $200 to be paid the M. E. Church Society, S. P. Lake, at Seth H. Chapman’s death; said Chapman paying each year, at 1st January, interest on said $200 at rate of T per cent, per annum, due and payable each year as above stated. And at death of said Seth H. Chapman said $200 shall be paid by the testators of said estate to the trustees of said church, to be used for benefit of ministers of said church as long as said church is organized. Should church disband, then money to go to widows’ and orphans’ fund— to support them — of the M. E. Church.
    “Also, I devise and bequeath to Bertha Louisa Gibson $50, to be paid by the estate when she is 20 years of age.
    “At Seth H. Chapman’s death, I further bequeath and devise my real estate to be divided into 5 equal shares, giving to Hugh McMonegal, or his heirs, one-fifth; to William McMonegal, or his heirs, one-fifth; to James Mc-Monegal, or his heirs, one-fifth; to Martha A. Chapman, or her heirs, one-fifth; to Louis J. Chapman, or his heirs, one-fifth.”
    The will was admitted to probate September 20, 1888; Seth H. Chapman, devisee named therein, being appointed executor. Only one claim was allowed against the estate; being for $295.96, in favor of one Eugene Hathom. Chapman qualified as executor, and entered into possession of the property; sold the crops and personal property; paid the expenses of running the farm, and many claims and debts owed by said deceased, and the funeral expenses, which were_not proven or allowed against the estate. Chapman purchased the interests of the five devisees named in the last clause of the will. April 4, 1890, Chapman sold and conveyed to defendant, by quitclaim deed, the real estate, foir $304, subject to all liens and incumbrances by way of mortgage and legacies. Defendant agreed with Chapman to pay all incumbrances and the legacies named in said will, and all claims allowed against said estate, and they were a part of the' consideration for said conveyance. Complainant purchased from Ezra L. Barker the legacy to him, and took a written assignment thereof, of which purchase defendant had full knowledge at the time he purchased the land. August 5,1891, Chapman, as executor, filed his account as such in the probate court. A hearing was had thereon, in which defendant appeared, and opposed its allowance. Said account showed on its face that the personal property had been consumed in the payment of debts, claims, and expenses, leaving no personal property with which to pay the legacies and the claim of said Hathorn. Said account was allowed by the probate court, leaving nothing due to the estate. Defendant has paid-the claim of Hathorn, and has assumed and agreed to pay all legacies named in the will, except the Barker legacy, now owned by complainant. The prayer of the bill is that the Barker legacy may be decreed to be a charge upon the real estate; that the defendant pay the amount thereof, with interest from the date it became due; and that in default of such payment the land be sold to pay said legacy.
    To this bill the defendant interposed a demurrer for three specific reasons, as follows:
    “(1) That defendant is not liable to personal decree, by reason of the lack of privity between complainant and defendant with respect to the alleged promise by defendant to Chapman.
    “(2) That the fee of the real estate is not charged with the payment of the legacy in question.
    “(3) That the other legatees, viz., the M. E. Church Society and Bertha.Gibson, are necessary parties.”

      The court below sustained the demurrer, and dismissed the bill.

      Smith & Colgrove, for complainant:
    By the terms of the will, the legacies are made a charge upon the real estate. Read v. Cather, 18 W. Va. 263; Sistrunk v. Ware, 69 Ala. 273; Walter’s Appeal, 95 Pa. St. 305; Brown v. Knapp, 79 N. Y. 136; LeFevre v. Toole, 84 N. Y. 95.

      Taggart, Knappen & Denison, for defendant:
    No liability to complainant can be predicated upon' defendant’s alleged agreement with Chapman. Pipp v. Reynolds, 20 Mich. 88; Hunt v. Strew, 39 Mich. 368; Hidden v. Chappel, 48 Mich. 527; Edwards v. Clement, 81 Mich. 513; Wheeler v. Stewart, 94 Mich. 445.
    The fee of the real estate is not charged with the payment of the legacies. Hibler v. Hibler, 104 Mich. 274; Kightley v. Kightley, 2 Ves. Jr. 328; Wright v. Denn, 10 Wheat. 226; Leavenworth v. Marshall, 19 Conn. 408; Harmon v. Smith, 38 Fed. Rep. 482; Penny’s Appeal, 109 Pa. St. 323; Paxson v. Potts, 2 Green, Ch. 313; Robinson v. McIlver, 63 N. C. 645; Belcher v. Belcher, 16 R. I. 72; Heslop v. Gatton, 71 Ill. 528; Chase v. Davis, 65 Me. 102; Davenport v. Sargent, 63 N. H. 538; Jackson v. Atwater, 19 Hun, 627; Bevan v. Cooper, 72 N. Y. 325.
    The other legatees are necessary parties. Westcott v. Mining Co., 23 Mich. 144; Dederick v. Barber, 44 Mich. 19.
   Grant, J.

(after stating the facts). We need not determine the question of the personal liability of the defendant. The bill does not pray that he be held personally liable for a deficiency, nor for the entire amount of the legacy, even if it be not a charge upon the land. It only prays that upon default of payment by defendant the land be sold. Possibly, the general prayer for relief might be sufficient to include such relief. It is true that there is no privity between complainant and defendant growing out of the alleged contract between him and Chapman, and complainant would have no remedy at law. Whether a court of equity would interfere under such circumstances, we need not determine.

2. The principal question is whether the legacies are by the will made a charge upon the real as well as the personal property. The rule governing the construction of wills, upon this point, is stated in Hibler v. Hibler, 104 Mich. 274, and several authorities cited. It is significant that the devisor included both her real and personal property in one clause, and made both subject to “the provisions below stated.” This differs from the fact in Hibler v. Hibler, where the legacy was to be first paid out of the personal property. The language of this will seems to us free from doubt. She intended that these bequests should first be paid out of her entire estate, and she mentioned the fund out of which they were to be paid by her executor as consisting of both her real estate and personal property, mentioning her real estate first. We think the allegations of the bill make a case for an answer, the joining of issue,' and proofs.

3. We do not think that the third point in the demurrer should be sustained. If defendant has made no arrangement with the other legatees named, by which he has assumed and agreed to pay them, or has not paid them, they would be necessary parties, because, should the land prove insufficient, the legacies should be paid pro rata out of the amount realized. While the allegation is not as specific as it might be, yet the statement that he has assumed and agreed to pay them leaves the case open to proof of a novation, “which might relieve the land from any lien on account of such legacies.

The decree is reversed, with costs of both courts, and the case remanded, with permission to answer in accordance with the rules and practice of the court

The other Justices concurred.


author: Montgomery, J.

text:
    FINDLAY v. CHICAGO & GRAND TRUNK RAILWAY CO.
    1. Death by Wrongful Act — Right of Action as Assets of Estate — Non-resident Decedent — Administration.
    The right of action given to an administrator by 2 How. Stat. §§ 8313, 8314, for negligently causing the death of his intestate, constitutes assets of the estate of the deceased, within the meaning of section 5848, authorizing administration in case of the death of a non-resident “leaving estate to be administered in this State.”
    2. Directing Verdict — Appeal—Wrong Reason for Right Instruction — When Rule Inapplicable.
    An instruction that the plaintiff has made no case under the pleadings, if in fact founded upon an erroneous ruling, will not he sustained under the contention that the error was without prejudice because of a fatal defect in plaintiff’s proofs in another particular, where the omission relied upon was clearly an oversight, and might have been supplied had attention been directed thereto upon the trial.
    Error to Wayne; Frazer, J.
    Submitted October 9, 1895.
    Decided October 22, 1895.
    Case by Robert Findlay, administrator of the estate of Myrtle Findlay, deceased, against tlie Chicago & Grand Trunk Railway Company, to recover damages for the death of the intestate, alleged to have been caused by defendant’s negligence. From a judgment for defendant upon verdict directed by the court, plaintiff brings error.
    Reversed.

      Julian G. Dickinson, for appellant.

      Geer & Williams, for appellee.
   Montgomery, J.

Plaintiff sues as administrator of the estate of Myrtle Findlay to recover damages for the death of the intestate, claimed to have been caused by the negligence of defendant. The circuit judge directed a verdict for the defendant on the ground that the probate court of Wayne county, in which letters of administration were issued, had no jurisdiction. Plaintiff appeals.

The petition for administration averred:

“That Myrtle Findlay departed this life on the 20th day of October, 1893, leaving no last will and testament, as your petitioner is informed and verily believes; that she was killed near Battle Creek, Mich., in an accident upon the Chicago & Grand Trunk Railway; and that her whole estate consists of a right of action against the Chicago & Grand Trunk Railway Company for negligently causing her death; that said deceased was at the time of her death an inhabitant of the city of Hamilton, in said county of Wentworth, Ontario.”

It is conceded that, if any Michigan probate coúrt had jurisdiction to grant letters of administration, the probate court of Wayne county was a proper place to apply, but defendant’s contention is that there was no estate of deceased to be administered within this State.

Sections 8313 and 8314 of Howell’s Annotated Statutes-provide:

“Whenever the death of a person shall be caused by wrongful act, neglect, or default, * * * -the person who * * * would have been liable if death had not ensued shall be liable to an action for damages. * * *
“Every such action shall be brought by and in the names of the personal representatives of such deceased' person, and the amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate.”

Section 5848 of Howell’s Annotated Statutes, relative to the administration of estates of deceased persons, provides:

“If such deceased person, at the time of Ms death, reside in any other State or country, leaving estate to be-administered in this State, administration thereof shall be granted by the probate court of any county in which there shall be estate to be administered.”

It is contended by defendant that the right of action for causing the death of the intestate does not constitute assets of the estate. We are of the opinion that the sections of the statute above quoted should be construed together. Section 8314 clearly contemplates that an administrator shall institute action, and distribute the funds received, if any. It could not have been contemplated by the legislature that the right to bring this action could be made to depend upon the question of whether the deceased left other property.' We think it was clearly the purpose to treat this right of action as assets for distribution, and we hold, in accordance with the weight of authority, that it constitutes such assets, within the meaning of section 5848. Hutchins v. Railway Co., 44 Minn. 5; Brown’s Adm’rv. Railway Co., (Ky.) 30 S. W. 639; Morris v. Railway Co., 65 Iowa, 727; Hartford, etc., R. Co. v. Andrews, 36 Conn. 214. See, also, Maysville, etc, Transfer Co. v. Marvin, 8 C. C. A. 21; Merkle v. Bennington Tp., 68 Mich. 133.

We are cited, in support of defendant’s contention, to Perry v. Railroad Co., 29 Kan. 420, and to Jeffersonville R. Co. v. Swayne’s Adm’r, 26 Ind. 477. The statutes of Kansas and Indiana are substantially the same. Each provides that the damages must inure to the exclusive benefit of the widow and children, if any, or the next of kin, to be distributed in the same manner as personal property of the deceased.

But it is contended that the error was without-prejudice, for the reason that the record contains all the testimony, and that there is no testimony which tended to show that the defendant was in any way responsible for the death of plaintiff’s intestate, and that, therefore, the general instruction that plaintiff had made no case under the pleadings was properly given. The record -does contain a statement that substantially all the testimony introduced on the trial is embodied in the bill of exceptions, but we think it is clear that the attention of neither court nor counsel was called to this claimed defeet in proof. If the point had been specifically made, it would have been the duty of the court to permit plaintiff to supplement Ms proofs by supjfiying testimony, the omission of which was evidently an oversight. See Ross v. Ionia Tp., 104 Mich. 320; Hoose v. Insurance Co., 84 Mich. 323. It is evident to us that the case turned upon the point first discussed, and, as there was error in the direction, the judgment will be reversed, with costs, and a new trial ordered.

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


author: McGrath, G. J.

text:
    WILCOX v. LANTZ.
    Statute op Limitations — Justice’s Judgment Docketed Upon Transcript in the Circuit.
    The 10-year period of the statute of limitations, applicable to a justice's judgment when docketed upon, transcript in the circuit court, is to be computed from the date of the rendition of judgment by the justice, and not from the time of the entry at the circuit. How. Stat. §§ 6917-6949, 6736.
    Appeal from Monroe; Kinne, J.
    Submitted October 9, 1895.
    Decided October 22, 1895.
    Judgment creditor’s bill by John Wilcox against Henry H. Lantz and others. From a decree dismissing the bill upon demurrer, complainant appeals.
    Affirmed.

      Landon & Lockwood, for complainant.

      John O. Zábél, for defendants.
   McGrath, G. J.

On April 23, 1881, complainant recovered judgments against one of the defendants in justice’s court. Within a few days before the lapse of the six years, complainant filed transcripts of such judgments in the circuit court. In December, 1894, over 13 years after the rendition of the judgments, but within 8 years after the filing of the transcripts, complainant filed his bill to reach real estate alleged to have been fraudulently conveyed away. Defendants demurred to the bill on the ground that th.e judgments were barred by the statute of limitation®. The court below sustained the demurrer, and complainant appeals.

3 How. Stat. § 6948, provides that—

“If the plaintiff, his assignee, or the agent or attorney of either of the parties, shall make an affidavit stating the amount due upon such judgment, it shall be the duty of the clerk of the circuit or district court for the county in which such judgment shall have been rendered to file such transcript and security for stay of such execution in his office when requested, and to enter and docket the judgment in a book to be kept by him for that purpose, noting therein the time of receiving it, and the amount sworn to be due.”

Section 6949, 2 How. Stat., is as follows:

“ Such judgment shall have the same effect as a judgment rendered in the circuit or district court, and may in the same manner be enforced, discharged, and canceled; and execution may be issued thereon against both the surety and the person against whom the judgment was rendered, or either of them, in the same manner as if execution were to be issued by the justice.”

This precise question has never been before this court. Complainant relies upon Arnold v. Thompson, 19 Mich. 333, but there the claim was presented to the commissioners within the 10 years after the rendition of the judgment by the justice. The claim made was that the life of the judgment was six years from its rendition. The court in that case did not hold that the statute applicable to a judgment of the circuit court commenced to run at the date of the entry and docket in the circuit. The case of Waltermire v. Westover, 14 N. Y. 16, involved the same question.

The language, “ enter and docket the judgment in a book,” used in section 6948, clearly refers to the judgment rendered by the justice, a transcript of which is presented. The statute does not contemplate the rendition of a judgment by the clerk. It simply clothes the judgment so recorded with the force and effect of a judgment rendered in the circuit. In Weimeister v. Singer, 44 Mich. 108, it is said that “ it would be an abuse of terms to call it a judgment rendered in a circuit court.” It is by virtue of the filing of the transcript, and the entry and docket, or record, that the judgment is given certain effect. The circuit court thereafter, by virtue of the statute, controls the proceedings upon that judgment; but that entry does not strengthen the judgment, or conclude the judgment debtor as to any defenses which were open before that entry. The statute operates upon a pre-existing adjudication, and does not contemplate a new rendition.

In 1885 an act was passed providing for the transfer of a judgment from the docket of one justice to that of another in a different county. The language of that act is that—

“ It shall be the duty of the justice of the peace to whom such transcript shall be sent, on receipt of the same, to enter said judgment in full upon his docket, noting thereon the time of receiving it, and the amount sworn to be due thereon. Such judgment shall have the same force and effect as if it had been rendered by the justice s'o receiving it in the first instance, and may,” etc. Pub. Acts 1885, No. 205.

The words such judgment,” in this act, d!o not relate to a new judgment entered by the justice to whom the transcript is presented, nor does the statute, as to such judgment, commence to run from the date of its entry in the docket of the justice in whose office the transcript is filed.

In Rand v. Garner, 75 Iowa, 311, which is referred to, the Code provided that the clerk should enter the memorandum in his judgment docket, and that “ from the time of such filing it shall be treated in all respects * * * as a judgment rendered in the circuit court as of that date.” Section 356S.

In Brown v. Wuskoff, 118 Ind. 569, under a statute similar to our own, the court held that the statute commenced to run at the date of the rendition of the judgment, and not from the date of the entry in the circuit. It seems to me that this is the construction that should be given to our statute; that it does not contemplate a new judgment, or the rendition of a judgment by the clerk, but that the entry or record of the existing judgment gives to that judgment the same force and effect as if originally rendered in the circuit court.

The decree of the court below is therefore affirmed, with costs to defendants.

The other Justices concurred.


author: Grant, J. Montgomery, J.

text:
    YOTTER v. CITY OF DETROIT.
    Defective Sidewalk — Inequalities in Surface-Liability of Municipality.
    A sidewalk, the only defect in which consists of an abrupt rise of two inches above the level of the walk, occasioned by planks’ having been laid lengthwise thereon to permit of the passage of teams to adjoining premises, is reasonably safe for public travel, within the meaning of 3 How. Stat. § 1446e, making it the duty of a municipality to maintain its walks in that condition. Weisse v. City of Detroit, 105 Mich. 482, followed.
    Error to Wayne; Hosmer, J.
    Submitted October 10, 1895.
    Decided October 22, 1895.
    Case by Charlotte Yotter against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff fell upon a sidewalk of the defendant city, early in the evening, “ between dark and dusk,” as she expressed it. The negligence alleged is:
    “That on a part of the street there was a two-inch plank sidewalk, some laid crosswise of said street and some lengthwise; and plaintiff avers that, contrary to defendant’s legal duty, it permitted said sidewalk to become and be for a long space of time, to wit, six months prior to plaintiff’s injury, improperly constructed and out of repair, by allowing a rise suddenly and of a great height, to wit, three inches, to be therein; that said break was not beveled or champered in any way, but suddenly, and at right angles with the lower sidewalk, rose therein, which of itself was very dangerous to passers upon the said sidewalk, especially in the night-time, as plaintiff was at the time of her injury; and plaintiff avers that the ■ said sudden break or rise in the sidewalk was an obstruction to the way, and a pitfall to passengers on foot who might have occasion to pass and repass along said highway in pursuit of their legal business. And plaintiff avers that the particular walk hereinbefore described was negligently and improperly kept up and maintained by the defendant, the city of Detroit, for a long space of time, in this, to wit, that the ends east and west on said sidewalk were not champered and sloped, or the sid'ewalk level, but were allowed by the weather or decay, or being improperly and insecurely laid and fastened in the first instance, to rise one above the other, so as to be an obstruction upon and in said sidewalk, against which the foot passenger w’ould be liable to run and stub his, her, or their foot, and trip or throw them, to their great injury.”
    The walk was constructed of planks or boards laid crosswise. Either upon this were laid lengthwise, two-inch planks about six feet long, nailed to the walk, or else this part of the original walk had been removed, and the new part constructed with the ends above the original walk. Plaintiff’s witnesses differ upon this point. It is, however, immaterial. The lots opposite were vacant, and had been frequently used for circuses. Heavy loads were drawn over the walk, and the planks were so laid for the purpose of strengthening the walk, and rendering it safe for the passage of teams. The ends were not champered off. The sidewalk had been in this condition for about three years. The ends of the second and third planks from the inside had become loosened, but rested firmly upon the walk or timber beneath. By lifting, the ends could be raised about three-fourtbs of an inch. The fact that these ends were loose is not shown to have contributed to the accident to plaintiff. The fault, if any, lay in the original construction, and this is evidently the sole negligence upon which the declaration is based. The plaintiff so understood it, for she testified: “ So far as I could see, that was the original way the walk was put down. They had built it in that way, one on top of the other, and curled or warped up at the sides or ends. That is what I complain of, — that they built the walk in that way.” She lived in the immediate vicinity, and was familiar with the construction of the walk, as she had frequently passed over it.

      Jolm J. Speed, for appellant.

      James H. Pound, for appellee.
   Grant, J.

(after stating the facts). This case is nearly identical in its facts with Weisse v. City of Detroit, 105 Mich. 482, and is clearly within the rule there established. The cross-walk in the present case was not in as bad condition as was the one in that case, the ends of which would spring up and down when stepped on, while this was solid on the walk or timbers under it. It is sought to distinguish this case from that, because this walk was not a crossing at the intersection of public streets. We think there is no force in this distinction. The city had the right to authorize or permit the owner of the adjoining land to construct a cross-walk similar to those which it might lawfully construct. The existence and construction of this cross-walk were as well known to the residents in that vicinity as were those of any street cross-walk. There is, therefore, no reason in holding that the one was reasonably safe while the other was not. The statute imposing liability is stated in Weisse v. City of Detroit. This case was tried in the court below before the decision in that case was rendered.

Judgment reversed, with the costs of both courts, and no new trial granted.

McGrath, O. J., Long and Hooker, JJ., concurred with Grant, J.

Montgomery, J.

I concur in the foregoing opinion for the reason that I think the question concluded by Weisse v. City of Detroit, 105 Mich. 482.


text:
    LEWIS v. BRANDLE.
    1. Landlord and Tenant — Verbal Lease by One Not in Possession.
    A verbal lease for less tban one year is not invalid from the mere fact that the land is at the time in the possession of a third party. 3 How. Stat. §§ 5657, 6179.
    3. Lease Beyond Power of Lessor — Estoppel—Attornment.
    A lease of premises in which another has possessory rights is nevertheless good by way of estoppel as against the lessor, and, if the occupant attorn to the lessee, a new tenancy is created.
    3. Landlord and Tenant — Summary Proceedings — Parties.
    A. conveyed to B., by warranty deed, premises of which C. was in possession, having held over for four months after the expiration of his lease from A. C. refusing to surrender, B. leased to A. for a term expiring November 15th, with right to sublet, and A. leased to C. until November 1st, the lease containing a written waiver of notice to quit. Held, that summary proceedings were properly instituted by A. on November 3d, 0. refusing to vacate. Vincent v. Defield, 98 Mich. 84, distinguished.
    Error to Saginaw; McKnight, J.
    Submitted October 10, 1895.
    Decided October 22, 1895.

      Summary proceedings by Adna G. Lewis against John Brandle to recover the possession of leased premises. From a judgment for defendant, complainant brings error.
    Reversed.

      Crane cG Crane, for appellant.

      James E. Davitt, for appellee.
   Montgomery, J.

This is an action to recover possession of land, originally instituted before a circuit court commissioner. The complainant below either proved, or offered testimony which tended to show, each of the following facts: That complainant was, on the 9th of May, 1894, the owner of the land in question. The defendant had been his tenant up to January 1st, preceding, and continued to hold over without any new agreement. On the 9th of May, complainant conveyed the land to one Dupraw. Brandle disputed Dupraw’s right to possession, and claimed the right in himself. Complainant, with the purpose of arranging the matter in difference, and of protecting himiself against action on the warranty in his deed to Dupraw, on the 25th of May, made an agreement with Dupraw, by the terms of which Dupraw leased the lands in question to the complainant until November 15, 1894, giving him the right to sublet. Complainant thereupon, on the same day, made a written lease to defendant, running until November 1st. The lease contained a written clause waiving notice to quit. Defendant refused to vacate on November 1st, and on November 2d this proceeding was instituted. The circuit judge directed a ver-, diet for defendant, and complainant appeals.

The reasons given by the circuit judge for his ruling are that, by the deed from complainant to Dupraw, the latter became the landlord and the defendant his tenant; that the agreement subsequently made by Dupraw to lease to the complainant, not having been accompanied by actual investiture of complainant with possession, amounted at most to an agreement for a lease, and did not operate to constitute Mm the landlord of defendant; and that, this being so, defendant took nothing by Ms written lease from complainant, and might refuse to be bound by it, and was not bound to deliver possession to complainant.

We cannot adopt this reasoning. It is, in this State, no obstacle to a conveyance of lands, or an interest therein, that they are in possession of another. 2 How. Stat. § 5657. The lease to complainant was valid, although resting in parol, it being for a less period than one year. 2 How. Stat. § 6179. It is apparent that the parties intended a conveyance to take effect in prcesenti. Defendant’s counsel relies upon Vincent v. Defield, 98 Mich. 85. In that case we held that the owner, who- had leased to A. under a lease expiring May 1st, and had subsequently made a lease to B. beginning May 1st, might, on A.’s refusing to surrender possession, maintain an action to eject A.; but this was on the ground that A. was. not B.’s tenant, and because it was the duty of the owner, under the terms of his lease, to invest B. with possession, and B. was entitled to treat his failure to do so a-s a breach of the covenant in Ms lease. Neither of these reasons exists in this case for denying complainant a right of action against defendant. Dupraw was not required to obtain possession of defendant and deliver to complainant. The agreement did not contemplate this. And, moreover, when -the complainant, under a power to -sublet, had entered into a written lease with the defendant, he had,as between himself and Dupraw, obtained possession. The agreement between Dupraw and the complainant gaAre the latter the right to possession until November 15th. The lease, while it was ineffectual to vest possession in complainant as against the possession of the defendant, would be void only as to the estate of the defendant, which it infringed, and would be good, by way of estoppel, as to such estate as the lessor had in the land for the time named. Wood, Landl. & Ten. (2d Ed.) § 80. Defendant, having thereupon attorned to complainant, is not in position to be subjected to an action by Dupraw.

The judgment should be reversed, with costs, and a new trial ordered.

The other Justices concurred.