text:
    SOWLES v. RAYMER.
    Appeal — Findings oe Court — Review—Fixtures.
    The finding of the circuit judge that a certain sawmill constituted a part of the realty covered by complainant’s mortgage, being fully justified by the evidence, was affirmed.
    Appeal from Eaton; Smith, J.
    Submitted June 2, 1896.
    Decided July 21, 1896.
    Bill by Nathaniel Sowles to enjoin John C. Raymer and Margaret A. Raymer from removing certain mill property. From a decree for complainant, defendants appeal.
    Affirmed.

      A. A. Ellis and John Nichol,' for complainant.

      Horace S. Maynard and Philip T. Van Zile, for defendants.
   Moore, J.

Complainant filed a bill, averring that he was the owner of 40 acres of land; that he became the purchaser at a foreclosure sale; that the mortgages thus foreclosed were given by defendants to Horatio Gale; that he paid at said foreclosure sale the sum of $1;800; that he made the purchase because he was the owner of two other mortgages on the same premises, made to the complainant by the defendant Margaret A. Raymer, one of which mortgages was given to secure the debt of both defendants; and that there was due on these two mortgages when he made the purchase upward of $1,300, making the cost of said premises to the complainant $3,100. It was also averred that the premises were not worth to exceed $2,800; that the two defendants 'had refused to vacate said premises; that complainant had commenced ■proceedings to eject them; that there had been a sawmill on said premises for 15 years, and that it was on when the mortgages were given; that defendants were attempting to remove the mill and machinery; that to do so was in fraud of his rights; and praying a perpetual injunction. The defendants answered to this bill, and claimed, by way of defense, that the mill was the property of John C. Raymer, erected on three acres of land leased by him of Margaret A. Raymer, and that the title had never been in her, and, in substance, that complainant never acquired any interest in the mill property. Issue was joined, ■and proofs were taken in open court. If any lease was made, it was not put upon record. There was testimony tending to show that, prior to the taking of the $889 mortgage given to the complainant by Mrs. Raymer, both defendants represented to the complainant that the title to the 40 acres, including the mill, was in Mrs. Raymer. This evidence was disputed on the part of the defendants. It was also a disputed question as to who owned the mill when the mortgage was given, and whether the mill was ■a stationary mill, constituting part of the realty, or whether it was a portable mill, and personal property. ■Complainant was granted a decree as prayed for in the bill, and defendants appeal.

The trial judge made a finding, in which he held that—

“The parties treated this mill as belonging to the land, and, all through the dealings regarding the land and the mill, it seems to me it is- fairly shown that the defendants understood perfectly that all the mortgages,- — -and especially as to the later mortgages given to Sowles, — that the mortgages covered and included the mill. Raymer and his wife dealt in such a way, as shown by the evidence, that it seems to me conclusively to appear that whatever she did he knew and understood. Her representations, even though not binding him, yet are significant as to his claims, and, considered with all the other facts and surroundings, point conclusively to an understanding between the two. She was a joint vendee to a portion of the property. She gave her note. She gave a mortgage at one time upon a large amount of lumber sawed at the mill. She was greatly interested in the various loans, and there is no showing to the contrary that the money borrowed of complainant did not enter into the business, and the property which they both controlled, including the mill and the farm; and the strong presumption is that every dollar loaned upon that farm was used in and about it and the mill, and that the enterprise, so far as the mill was concerned, was a joint one, connected with the farm. I do not think it would be equitable to say that Sowles can take no further rights than an ordinary purchaser at a foreclosure sale. He was a purchaser at the foreclosure sale of four prior mortgages, and at the same date discharged his mortgages, amounting to several hundred dollars, placed upon the property when the mill was there, under circumstances showing strongly that all parties acted upon the fact that the mill was covered by and included in his security. He had greater equities than such a purchaser.”

The questions involved in the case are of no special interest to the public or profession. A discussion of them is not necessary. They are almost wholly questions of fact. Whether the decree made by the trial judge should stand will depend wholly upon the credit given the witnesses. They were all before the court. He had an opportunity to judge of the weight to be given their testimony. We think the conclusion reached by him was fully justified by the evidence. See the many cases cited in 3 Jac. & C. Dig. p. 24, par. 59.

The decree is affirmed, with costs.

- Long, C. J., Grant and Montgomery, JJ., concurred. Hooker, J., took no part.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    COOMBS v. RADFORD.
    Trial — Instructions to Jury.
    In an action for false representations as to the value of certain corporate stock, plaintiff relied upon a letter stating that the corporation was paying net 12 per cent, on the capital, and submitted a request to charge, relating to the receipts and disbursements of the corporation at the time the letter was written, which drew as a conclusion from the accounts as stated the falsity of the representations. The circuit judge, in refusing the request, remarked that to give it would be to usurp the province of the jury, and that he could not say affirmatively that the figures as set forth therein were correct. The jury were then carefully instructed that the whole question of the truth or falsity of the letter was for their determination, and that, if they should find that the letter was substantially true, there could be no recovery. Held, that, in view of the whole charge, the remarks of the court in refusing the request were not open to the criticism that they allowed the jury to infer that, if the figures in question were found to be accurate, the conclusion set forth in the instruction must follow.
    Error to Wayne; Hosmer, J.
    Submitted June 2, 1896.
    Decided July 21, 1896.
    Case by Lorenzo D. Coombs against George W. Rad-ford, James W. Fales, and Alexander McVittie for alleged false representations on the sale of corporate stock. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Edward A. Barnes, for appellant Radford.

      John D. Conely, for appellants Fales and McVittie.

      Fred A. Balter, for appellee.
   Long, C. J.

This is an action of trespass on the case, brought to recover of the defendants the sum of $2,000, paid by plaintiff to the defendants for shares of stock in what is known as the “Keeley Institute.” The action is based — First, upon the alleged fraudulent increase by the defendants, from $50,000 to $250,000, in the capital stock of that corporation; second, for false representations regarding the value of such stock. The institute was first organized December 2, 1891, and the three defendants and Anson Waring and Albert E. Carrier subscribed for all of such stock, and paid in 60 per cent, thereof. Arrangements were thereafter made with certain persons living in the city of Ypsilanti to increase the capital stock to the sum of $250,000. The stock was so increased, and the plaintiff purchased 80 shares, at $25 per share. Upon the trial in the court below the question as to the fraudulent increase of the capital stock was ruled out, and the only question submitted to the jury was whether there were any false representations made to the plaintiff as to the value of the' shares at or before the time of his purchase. The false representation claimed was a letter written by defendant Badford to one J. W. Van Cleve, of Ypsilanti, as follows:

“April 25, 1892.
“ J. W. Van Cleve,
“Ypsilanti.
“Dear Sir: In answer to your inquiry, will say that the Keeley Institute at Northville is now paying net 12 per cent, on $250,000.
“Yours, most truly,
“Geo. W. Badford.”

Plaintiff’s contention on the trial was that this letter, though written by defendant Badford, was authorized by the other defendants; that Van Cleve was actively engaged in procuring sales of surplus stock issued upon the reorganization of the corporation, and exhibited this letter to the plaintiff and other parties purchasing such stock. No complaint is made by the defendants but that such matters were fully and fairly submitted to the jury under the charge of the court. The only error claimed in this court is in relation to the charge of the court under a certain request tendered to the court to give in his charge to the jury. The whole subject over which the contention now arises is fully set forth in the record of the charge of the court, as follows:

“I am asked to charge you that the evidence shows that the total cash receipts of the corporation during the month of March, 1892, including items credited on the treasurer’s books under dates of April 2d, 4th, and 5th, were only $3,966.94, and that the total amount paid out for expenses during the same period was $3,178.56, and that the estimate of Mr. Radford that the receipts were $100 for each of 38 patients, or $3,800, and that the expenses were less than $1,200, was not justified by the actual facts, and that they did not warrant the representations contained in his letter of April 25, 1892. I think, gentlemen of the jury, if I should give you that request I should be usurping your province. I have laid down the rules for your guidance in determining whether the letter was true, or whether the letter was false, and I have not before me now the figures so that I could say affirmatively that the figures as represented by counsel are true or not; but I only desire to say, in this regard, that you have heard the! evidence in the case, and it is for you to say, under the evidence that has been laid down before you, in determining what was meant by the term ‘now,’ as embodied in the letter, whether the statement that was made in the letter at that date was or was not substantially true. Then, of course, there can be. no recovery on the part of the plaintiff. If it was not substantially true, then you will proceed to consider the other facts in the matter, under the rules I have laid down.
‘Mr. Conely: In view of your having read that before the jury, I ask your honor to say that that is based upon a calculation of the entire business, from beginning to end, which your honor has already charged is not a criterion.
“The Court: No; it is based upon the month of March, as shown by the cash book.
“Mr. ■Conely: Yes; it has nothing to do with the earnings or expenses. The cash book don’t undertake to put down all the earnings for the month, or all the expenses.
“The Cotirt: I cannot say what it is. The jury have heard the testimony. I suppose it is based upon cash receipts for that time.
“Mr. Baker (plaintiff’s attorney): May the jury have the cash book and treasurer’s report ?
“The Court: If counsel agree that the jury may have the cash book, they may; otherwise not. I cannot send out with the jury anything but what is agreed upon by counsel.
“Mr. Baker:. We would like to have them have the cash book, and the written letter, and the certificates of stock, and treasurer’s report, which is a recapitulation.
“Mr. Conely: I think we had better send for the witnesses, your honor.
“The Court: Well, gentlemen, you may follow the officer.”

The jury thereupon retired in charge of an officer, but were subsequently recalled by the court, and a number of requests submitted by defendants’ counsel were given, and then the following occurred:

“Mr. Conely: Before they return, your honor: I made a mistake about that statement being for the whole time, instead of March, but your honor corrected me; and I would like to know— As it was read, I didn’t quite fully take the figures, in hearing them, and, although your honor said the whole matter should go to the jury, I would like to know whether those figures included amounts paid on the note during March, and amounts paid for medicine, which went over.
“The Court: Mr. Conely, you will have to ask that of counsel who did the figuring. I did not assume to say to the jury that the figures were correct, but I left that matter to the jury.
“Mr. Baker: For that reason I would like to have the jury take the book.
“The Court: Whether the jury may or may not take the book is a question only for counsel. All the money that was earned, I think, was not put in it, so that the cash book would not be a true criterion. Whether that statement by Mr. Conely is or is not true is a question for the jury, and not for the court, because every question in the case, of fact, gentlemen of the jury, is a question for you, and not for me. Gentlemen, you may follow the officer.”

The contention of counsel- for defendants is that the defendants were prejudiced by the language of the court in refusing to give the request, because, by saying that ■the reason he could not give it was that he did not know whether the figures were accurate, and that it was not his province, but the jury’s, to say whether they were or not, he allowed the jury to infer that, if they should find that Mr. Baker’s figures were accurate, his conclusion that the net earnings were at a less rate than $30,000 a year must follow, provided they construed the word ‘ ‘ now ” as referring the statement to the month of March; that what the court should have said was that the figures read gave no authority for them to draw such conclusion, because the cash receipts and disbursements during the month bore no necessary relation to the earnings and expenses during that month, and the cash book did not show what were the earnings and expenses; that, instead of telling them that it was for them to decide whether Mr. Baker’s conclusion was true, he should have told them definitely that his conclusion was not justified by his premises.

We think the jury could not have been misled by this portion of the charge. The court had specifically instructed them in relation to the statements in the letter. The court had said:

“Perhaps wé had better ascertain, in the first place, whether or not the statement is a false or a true statement. It is obvious that the stock had not paid 12 per] cent, for the time the corporation had been organized, but that is not the statement in the letter. Now, gentlemen of the jury, I cannot say what is meant by the word ‘now.’ I think I will submit that to you. It is contended by Mr. Radford [one of the defendants] that the word ‘ now ’ referred to the month of March, — the basis of the month of March, — and that it was substantially true. Now, you have heard the testimony in the case, and it is for you to say whether it was or whether it was not a true letter. If it was a true letter, and if the statement embodied in that, letter was not false, but was substantially true, and it was written without an intent to deceive, and was substantially true at the time it was written, — if it was then paying the sum of 12 per cent, on $350,000,— obviously, under those circumstances, there can be no recovery. But if, gentlemen, on the contrary, it was false, if it was not paying, at the time the letter was written, the sum of 13 per cent, on $350,000, then we will proceed to consider the other evidence there is in the case.”

It cannot be contended but this was a very fair statement of the question to the jury, and no complaint could be made by the defendants that under their contention the case was not fully and fairly submitted to the jury. The fact that counsel for plaintiff afterwards tendered a request, which the court read and refused to give, cannot be said to have misled the jury, though coupled with the statement made by the court in reference thereto. The jury must have understood that the court submitted that whole question for their consideration, and we think there was no warrant for the claim of counsel that the remarks of the court left to the jury the-inference that, if they found Mr. Baker’s figures were correct, they should find his conclusion was correct. The court had stated several times in the charge to the jury that, if they found that the letter was substantially true, there could be no recovery, and that the whole question of its truth or falsity was for their consideration and determination, and not for the court.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SLESINGER v. BRESLER.
    1. Statute op Frauds — Contract op Sale — Evidence.
    Testimony of the proposed purchaser under a written contract for the sale of personal property which omitted to name the purchase price, that the seller estimated the property to be worth from §60 to §150, but that witness had never seen it, is insufficient to bring the contract within the statute of frauds as being for the sale of chattels of the value of §50 or more.
    2. Contract — Payment—Suppiciency op Tender.
    A tender of notes under a contract for the sale of personal property providing for the payment of the purchase price in notes, but silent as to place of payment, will not be held insufficient because the notes were made payable at a specified place, where the seller, upon being told to examine them and see if they were correct, made no objection to their form, but stated that he had changed his mind in regard to the sale.
    Error to Bay; Maxwell, J.
    Submitted May 1, 1896.
    Decided July 21, 1896.
    . Assumpsit by Victor Slesinger against Charles A. Bresler for the breach of a contract of sale. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed..

      James H. Davitt (T. A. E. & J. C. Weadock, of counsel), for appellant.

      Ei. H. & C. H. Hatch, for appellee.
   Moore, J.

The parties to this litigation made a contract reading as follows:

“Contract made and entered into between Charles A. Bresler, of Bay City, Michigan, and Victor Slesinger, of Saginaw, Michigan, witnesseth as follows: In consideration of two thousand dollars ($2,000), to be paid by said" Slesinger to said Bresler, as hereinafter provided, Bresler hereby sells, transfers, and sets over to Slesinger the following personal property: * * ■ * • For the aforesaid consideration said Bresler also sells, transfers, and assigns to said Slesinger the good will of his business of dealing in hides, pelts, wool, furs, tallow, lard, grease, etc., arid said Bresler further stipulates and agrees that he will not engage in the business of buying, selling, or dealing in hides, pelts, wools, furs, tallow, lard, grease, etc., in Bay City or West Bay City or in the city of Saginaw, or at any point between said city of Saginaw and cities of Bay City and West Bay City, during the time that Slesinger continues in such business in the cities or either of the cities above named; and second party agrees to buy the interest of first party in the grease and boiler toorks at Fitchville. It is further agreed that said Bresler may, and he does hereby, reserve the right to purchase of said Slesinger a one-half interest in the property and good will this day sold to Slesinger, * * *■ and if said partnership shall be afterwards dissolved for any cause, then, after such dissolution, all his right in the good will of said business shall be terminated, and the stipulations above binding him not to engage in said business within the cities and at the other points above specified shall be again at once in force, and binding upon him, unless otherwise agreed upon.
“The sum of two thousand dollars, the consideration of this agreement to be paid by said Slesinger, shall be paid as follows: According to the terms of twelve promissory notes of one hundred and sixty-six and 66f dollars ($166.6 6f) each, payable one in two months, one in four months, one in six months, one in eight months, one in ten months, one in twelve months, one in fourteen months, one in sixteen months, one in eighteen months, one in twenty months, one in twenty-two months, one in twenty-four months, after this contract takes effect, without interest until after maturity.
“ This contract shall take effect, and possession shall be delivered to said Slesinger by said Bresler, on the 1st day of December, 1894. (Made in duplicate.)
“Charles A. Bresler.
“Victor Slesinger.”

The original contract is all typewritten except the signatures and the words italicized. The italicized words were interlined and written with, a pen, after the contract was signed, but before it was delivered. On Saturday, December 1st, plaintiff went to the office of the defendant, who was absent, and tendered to the parties in charge of his office 13 notes, all of which were alike except as to time of payment, which times corresponded with the times mentioned in the contract. One of the notes reads as follows:

“$166.66-|-100.
Saginaw, Mich., Dec. 1, 1894.
‘ ‘ Two months after date, I promise to pay to the order of Chas. A. Bresler, one hundred sixty-six 66 f-100 dollars, at First National Bank, Saginaw, E. S. Value received.
Victor Slesinger.”

The notes were not accepted. On the following Monday, plaintiff went, with the 13 notes in his possession, to the office of Bresler, and had a conversation near there with him, and showed him the notes, and told him, “Here are the papers I agreed to give you,” and told him to examine them, and see if they were according to the contract; that he was ready to take possession of the place according to the contract. Bresler told him he had changed his mind. Bresler would not accept the notes. Some efforts were made to settle their differences, which failed, and plaintiff brought suit against defendant to recover damages for breach of the contract.

On the trial, evidence was introduced showing the facts just stated, and the plaintiff offered to show further that, at the time the contract was made, the business to which it related was in a depressed condition; that between then and the 1st of December the business became very profitable, and that the reason why Mr. Bresler refused to carry out the contract was because the business was more valuable than it was when he agreed to sell it. The court refused to allow the plaintiff to show this, and because the trial judge believed the notes tendered were not such notes as the contract required, from the fact that they were payable in East Saginaw, he refused to allow plaintiff to put in any further proof in the case. The plaintiff having stated he had no further evidence as to offer or tender of other or different notes, the judge directed the jury to render a verdict for the defendant. Plaintiff appeals.

Defendant insists there was no error, for three reasons:

First, because the contract is void under the statute of frauds, as that part of the agreement reading, “And second party agrees to buy the interest of first party in the grease and boiler works at Fitchville,” does not fix any price which is to be paid for the property, and that the interest was worth more than $50, and for that reason no part of the contract could rest in parol.
Second, because the notes tendered were not such notes as were called for by the contract; and,
Third, because, at the time plaintiff claims he tendered these notes, he did not also offer to perform that part of the contract relating to the Fitchville property. •

We do not think the claim that the contract was within the statute of frauds is well taken. The only proof of the value of the interest Bresler had in the Fitchville property is the testimony of the plaintiff that Bresler told him it was worth from $60 to $150, but that he (Slesinger) had never seen it; so that it cannot' be said that there is any proof as to its value. As to the claim that the plaintiff did not offer to pay for the interest in the Fitch-ville property, we can get no other impression from the evidence than that he offered, at his interview with Bresler, to perform his part of the contract.

The only remaining question is, did the plaintiff do all he was required to do in relation to the notes? If he did, he was entitled to put in the rest of his proof, and to have his case go to the jury. It has been held that if one who is bound to pay money to another at a certain time and place is there with the money in his pocket for the purpose of paying it, and is prevented from paying it only by the absence of the payee, this has the full effect of a tender. Gilmore v. Holt, 4 Pick. 258; Southworth v. Smith, 7 Cush. 391.

In Fosdick v. Van Husan, 21 Mich. 575, a tender, as money to be paid on a mortgage, of legal-tender notes was made. In the Supreme Court it was argued this-tender was not good, because the notes were not the medium in which a lawful tender could be made. The court used language as follows:

“The defendant refused to receive the tender, but did not place his refusal on the ground now urged in his behalf. His sole objection was that he was entitled to a. much larger sum than $350, and not that the notes tendered were not worth $350. As he did not refuse to receive the notes on the ground that they were depreciated, or even not lawful money (grounds which, if taken, might-have been obviated if thought necessary), but treated the offer as one of $350 in fact, and placed his refusal upon a ground having no relation to the form of the tender or the character of .the medium, we think he is precluded from raising the objection now urged.”

To the same effect is Beebe v. Knapp, 28 Mich. 54.

In Browning v. Crouse, 40 Mich. 342, where money was due, the tender was made by sending a check instead of the money. In his opinion Justice Cooley said:

“A formal tender of payment was not made, but a check was sent, which the plaintiffs were at liberty to receive or reject, at their option. They chose to return it, but there is no pretense that they did so because they objected to that mode of payment. Indeed, the previous payments had been made in the same way, and had been received without objection. Plaintiffs are therefore not in position to insist upon the failure to offer payment in money as a failure to complete, or offer to complete, the compromise.”

It seems to me the case at bar is within the reason of these cases. The plaintiff was at the office of the defendant, with the notes offered in evidence, and made a tender of them. No objection was made to the form of them. On the following Monday he sought out Mr. Bresler, and informed him he had come to perform the contract, and offered him the notes, and asked him to examine them, and see if they were correct. If Mr. Bresler had said he o'bjected to the notes because they were payable in East Saginaw, they could have been easily changed; but he did not put his refusal to receive them upon that ground, but said he had changed his mind. We do not think his position tenable.

Judgment is reversed, and new trial ordered.

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


author: Montgomery, J.

text:
      In re KING’S ESTATE.
    1. Executors and Administrators — Assignment of Compensation — Public Policy.
    An assignment by an executor, to whom letters testamentary have been duly granted, of all claims for compensation to be earned in defending against an appeal from the probate of -the will, is void as against public policy.
    2. Same — Compensation.
    Under 2 How. Stat. §§ 5959, 9015, an executor or administrator is entitled to a commission on the amount of personalty collected and real estate sold, or to §l-per day for actual services, as he may elect; but this is the limit of his right to compensation, except in cases of unusual difficulty or responsibility.
    Error to Wayne; Donovan, J.
    Submitted June 4, 1896.
    Decided July 21, 1896.
    Rachel L. Doty appealed from an order of the probate court disallowing her claim for services as executrix of the last will and testament of Adeline King, deceased. From a judgment for the estate (represented by George W. Bates) on verdict directed by the court, claimant brings error.
    Reversed.

      Ervin Palmer, for appellant.

      Otto Kirchner, for appellee.
   Montgomery, J.

The appellant was named as executrix of the last will and testament of deceased. The will was offered for, and admitted to, probate. Mrs. Doty qualified as executrix, and gave a bond and entered upon the discharge of her duties as such. An appeal from the probate of the will was taken, and two trials had in the circuit; a judgment denying probate of the will having been reversed by this court, and the case remanded for another trial. The order admitting the will to probate was finally entered by the circuit court on the 19th day of March, 1895. On the 11th day of April, 1895, Mrs. Doty filed a claim for an allowance to her for services as executrix, containing, among other items, charges as follows:

April 2, 1894. To services as executrix, 59 days, during the year from April 1, 1893, to date, looking after witnesses, etc., $295.
‘ ‘ May 28, 1894. . To services as executrix from and including April 3, 1894, to date, 35 days, attending trial in the ■ circuit court, assisting in the procuring of witnesses, and in the preparation and carrying on of the case, $350.
“For extraordinary services, — for responsibility and services in and about the preparation, hunting for witnesses and hunting up testimony, and assisting in the preparation of the second trial in the matter of probating the will of deceased in the circuit court for the county of Wayne, — $1,000.
“Rachel L. Doty.”

This claim was disallowed, the case appealed to the circuit court, and the cause was tried before Hon. J. W. Donovan, circuit judge, with a jury. Before the jury was impaneled, counsel for the appellant objected to the impaneling of a jury on the ground that it appeared that the claim was for extraordinary services, and that, therefore, the allowance was within the discretion of the probate judge in the first instance, and of the circuit judge on appeal. The case was, however, tried by a jury, but a verdict was directed by the circuit judge in favor of the estate, and subsequently a-written finding of facts was filed. The claimant, on the trial, offered evidence showing the rendition of the services in question, and some evidence as to value; and the defendant also offered certain oral testimony, which it will not be necessary to advert to, as counsel are now agreed that the, case turns upon the construction of a certain written agreement, and upon certain other legal questions,which are raised.

Mrs. Doty was named as one of the legatees in the will, and it appears that on the 20th of June, 1892, an agreement was made between her and George W. Bates, who is interested in the estate, by which she and others assigned to him all interest in the estate, for a consideration paid to her; and it is contended that, by the terms of this agreement, Mrs. Doty assigned her right to compensation for services to be thereafter performed on behalf of the estate. The agreement is in two parts, and reads as follows:

“We, the undersigned, for valuable consideration to us in hand paid, the receipt whereof is hereby confessed and acknowledged, do hereby jointly and severally sell, assign, transfer, and set over to and unto George W. Bates,* of Detroit, Michigan, all claim or claims which we or any of us now have or claim to have, or which we or any of us may hereafter have or claim to have, against the estate' of Adeline -King, late of Detroit, deceased, whether for or on account of moneys paid by us or either of us, or that may hereafter be paid out by us or either of us, or for or on account of services of any kind rendered by us or either of us, or for us or either of us, by any person or persons, in aid of the probate of the alleged will of Adeline King, late of Detroit, ri opoQaoH
“Detroit, June 20, A. D. 1892. '
“Louise K. Roney.
“Rachel L. Doty.
“Edmund K. Doty.
“Hoyt Post.
“John Atkinson.
“ D. W. King.
“For a like consideration to us in hand paid, the receipt whereof we do hereby confess and acknowledge, we do also assign, sell, and set over to and unto George W. Bates, all right, title, and interest which we or either of us now have in, to, and out of the estate of Adeline King, late of Detroit, deceased, and all claims which we or any of us have against the estate of said Adeline King, deceased, of whatever name or nature.
“Detroit, June 20, 1892.
“Louise K. Roney.
“Rachel L. Doty.
“Edmund K. Doty.
“ D. W. King.”

The circuit judge held in accordance with this contention.

It is contended by the appellant that the instrument is not open to this construction, and that, if it is, such an assignment by an executrix of fees to be earned in the future is against public policy and void.

It is at least doubtful whether the parties contemplated that services were to be rendered by Mrs. Doty after the making of this agreement, the compensation for which Mr. Bates would be entitled to receive. But we find it unnecessary to determine whether the charge for services subsequently rendered is strictly within the terms of this agreement, as we are of the opinion that, if the instrument should be so construed, the contention of the appellant’s counsel that the agreement is void on the grounds of public policy is sound. Where an executor has offered a will for probate, and the will has been admitted to probate, and letters testamentary granted, it becomes the duty of such executor, in his capacity as such, to defend the will, and he is entitled to expend money of the estate in so doing, and to render services for the estate, and at the charge of the estate, if in making such expenditures he acts in good faith. Glass v. Ramsey, 9 Gill, 456; Compton v. Barnes, 4 Gill, 55 (45 Am. Dec. 115); Perrine v. Applegate, 14 N. J. Eq. 531; Hazard v. Engs, 14 R. I. 5. We express no opinion as to what the right of the executor might be before an actual appointment in the probate court, or in case of an unsuccessful attempt to probate the will; but in' the present case it became the duty of Mrs. Doty, as ■executrix, to defend against the áppeal. This being so, the service which she was required to render was a service rendered in the performance of a sacred duty owing to the estate; and we think it follows logically, and upon authority, that an assignment of the compensation to be awarded her for such services is against public policy. A case directly in point is In re Worthington, 141 N. Y. 9, in which the reason for the rule is clearly stated as follows:

“If the emoluments of the office might be separated from it, and transferred to another, it would leave the duties of the office as a barren charge to be borne by the incumbent. It is evident that transfers of this kind would not tend to promote activity and care in the discharge of official obligations. * * * When the hope ■of compensation is gone, a strong incentive to diligence and zeal is wanting, and the temptation to be content with a lax or perfunctory administration of the trust becomes more persuasive.”

But it .is contended that the proofs fail to show the •claimant entitled to compensation, for the reason that there is no evidence to show that the services charged for were of unusual difficulty and responsibility. 2 How. ■Stat. § 9015, provides compensation for executors and ■administrators, as follows:

“Eor actual services, and in lieu of all other fees, one dollar per day and fifty cents for each half day, and their actual and necessary disbursements for the benefit of the estate; but the probate court may allow executors and administrators, in cases of unusual difficulty or responsibility, such further sum as the judge may deem reasonable.”

Section 5959 provides for compensating the executor or administrator by a commission on the amount of personal estate collected and accounted for, and the proceeds of real estate sold by order of the court, at a certain rate per cent., and further provides:

“And in all cases such further allowances may be made as the judge of probate shall deem just and reasonable, for any extraordinary services not required of an executor or administrator in the common course of his duty.”

It would seem that an executor might elect to take compensation under either of these sections, but that, if he elects to take for actual services in lieu of the percentage, the compensation is fixed at $1 per day, except in cases of unusual difficulty or responsibility. But the case did not turn upon this point, and as, in any view, the claimant was entitled to some recovery, we think the case should be remanded. We are asked to enter judgment here for $1,645; but this is at the rate of $5 and $10 a day for the services rendered, whereas the statute fixes the per diem compensation at $1; and we think it fairer to the parties that the case be remanded, in order that the circuit judge may exercise a reasonable discretion in the allowance for extraordinary services and responsibility, having in view the question of the necessity for such services, and such proofs as may be offered on the subject.

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

The other Justices concurred.


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    ANN ARBOR RAILROAD COMPANY v. BEACH.
    1. Appeal — Condemnation Proceedings — Adjournment by Con- ■ sent — Waiver.
    An assignment of error upon the action of the court in permitting an adjournment in condemnation proceedings before the sheriff had returned his list of jurors cannot be considered, where the record shows that the parties consented to the adjournment.
    2. Same — Qualification of Jurors — Presumption.
    An award in condemnation proceedings will not be disturbed on appeal upon the ground that one of the jurors was not a freeholder, even though the testimony in the record fails to show that he is such, where the trial judge states in his return that only a small portion of the testimony is included therein.

      Certiorari to Livingston; Smith, J.
    Submitted June 4, 1896.
    Decided July 21, 1896.
    Condemnation proceedings by the Ann Arbor Railroad Company against Hiram G-. Beach and others. From an order confirming the award, respondents bring certiorari.

    Affirmed.

      ■ Louis E. Hoiolett, for plaintiffs in certiorari.

      T. W. Whitney, for defendant in certiorari.

   Long, C. J.

On December 31, 1895, the petitioner filed a petition in the circuit court for Livingston county for an order appointing commissioners to determine the necessity for the taking of certain lands of the respondents, and to determine the damages and compensation to be paid therefor. A citation was issued by the circuit judge, and all the respondents except Maggie Snyder appeared and filed a motion to quash the petition. This being overruled, they requested a jury to determine the questions involved. This list was prepared by the sheriff on January 13, 1896, and the cause adjourned until the 18th of January. At the adjourned day the sheriff returned his list, and on the 37th, 38th, 39th, and 30th of that month the cause was heard before the jury, who returned a finding that the lands were necessary for public use, and they fixed and determined the compensation to be paid therefor. This finding came up before the court for confirmation on the 10th day of February, and was duly confirmed. The case comes to this court by writ of certiorari.

It is first contended that the- court was in error in permitting the adjournment of the case from January 13th to January 18th, before the sheriff returned his list of jurors. The return of the circuit judge shows that this adjournment was by the consent of the parties, and that question will not, therefore, be discussed

It is contended further that the court erred in confirming the award, as one of the jurors was not a freeholder. The name of this juror is Frank L. Chase, and the circuit judge returns upon that question as follows:

“I further return that, upon the return of the venire issued herein, upon the calling of the names of said jurors, and after they had taken their seats in the jury box, they were, upon request of counsel, sworn as to their competency to sit as jurors in said case; that, after the administering of said oath, counsel for petitioner explained to each of said jurors what was necessary to qualify them to sit in the case, — that they must be resident freeholders, residents of the county of Livingston, and owners, each for himself, of real estate in said county; that thereupon the jurors, each for himself, under oath, answered in the affirmative, and Juror Frank L. Chase, on such examination so had, said he owned the farm on which he lived.”

The court further returns as follows:

“That there is only a small portion of the testimony taken in said case incorporated in my return, or the record of the cause.”

When the award came before the court for confirmation, the juror Chase was called and examined further by respondents’ counsel. It is claimed that his testimony there shows that he was not a freeholder, and was therefore an incompetent juror, and the award should not have been confirmed. We are not satisfied that his testimony can be construed as a denial even at that time that he was a freeholder. He admitted that he had a deed of an undivided interest in certain lands in that county, for which he had paid a consideration, and that, so far as that deed vested any interest in him in the lands, he still retained that interest. But, even if he were not shown to be a freeholder by this testimony, we are unable to say that the court below was in error in the confirmation -of the findings of the jury,, as the court returns that but a small portion of the testimony taken in the case is incorporated in this record.

Several other questions are raised, which we do not deem it necessary to discuss. We find no error in the record, and the judgment and findings of the court below will be affirmed.

The other Justices concurred.


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    MULLIKEN v. CITY OF CORUNNA.
    1. Personal Injuries — Evidence—Exclamations of Pain.
    In a personal injury ease, the physician who attended the plaintiff may testify to declarations of pain made by the latter immediately after the injury.
    2. Appeal — Irresponsive Testimony — Failure to Object.
    An objection to testimony which was not resiionsive to the question asked cannot be raised on appeal, where no motion was made on the tidal to strike it out.
    3. Trial — Personal Injuries — View of Premises by Jury.
    In a personal injury case, the court may, in its discretion, refuse to permit the jury to view the premises where plaintiff claims to have been injured.
    4. Municipal Corporations — Defective Sidewalk — Notice-Instructions to Jury.
    In an action against a municipality for injuries sustained by stepping into a hole in a sidewalk, an.instruction that defendant would be presumed to have had notice of the hole in the walk, if it rendered it out of reasonable repair, and had existed for from one to six months before the injury, and was of such a character as would naturally arrest the attention of persons passing by, if objectionable as determining, as a matter of law, what would be reasonable notice, is cured by a subsequent charge that, before plaintiff can recover, the jury must find that defendant, after constructive notice of such hole, had sufficient time to put it in repair, and neglected to do so.
    Error to Shiawassee; Montague, J.
    Submitted June 5, 1896.
    Decided July 21, 1896.
    Case by Mary W. Mulliken against the city of Corunna for injuries sustained by reason of a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Austin JS. Richards (A. L. Chandler, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Long, C. J.

This suit was brought to recover for an injury caused by the alleged negligence of the defendant in not keeping a cross-walk in repair. The injury occurred on May 24, 1894. Plaintiff -alleges that the injury was caused by a hole in this cross-walk, into which she fell and injured her leg, and, as she claims, permanently disabled herself. The defendant contended on the trial that there was no hole at such place, and that, if there was, the city had no notice of it, either actual or constructive. The testimony of plaintiff shows that- in the winter of 1893 and the spring of 1894 this hole was noticed- by passers-by, and was from 14 to 18 inches in length, and from 3 to 5 inches wide, tapering at one end. Several of plaintiff’s witnesses testified to having seen this hole there during the fall and winter of 1893-94, and up to the time of the accident. This was disputed by the defendant, -who introduced testimony tending to show that there was no hole there; but that question was left, under the charge of the court, for the determination of the jury.

On the trial, plaintiff introduced as a witness Dr. Curtis, who testified that he attended the plaintiff, as her physician, after the injury. He stated that when he first called he found her suffering a great deal of pain, her left ankle was badly swollen, and there was a fracture of the small bone of the leg on the outside, reaching about 1-|- inches above the ankle joint. He was then asked, “What complaint did she make at that time, if you remember, about the pain in her head and back ? ” This was objected -to as incompetent and immaterial, but admitted by the court. The witness answered: “She did complain of her back at that time; telling me, I think, it was from the effects of the fall.” Defendant’s counsel contend that the court was in error in permitting the witness to state what complaint she made, as it was not confined to any particular time. We think the testimony shows conclusively that it was confined to the time immediately after the injury, and was properly admitted. Will v. Village of Mendon, 108 Mich. 251, and cases there cited. The question itself was proper, and, if the answer had been limited to the question asked, it certainly would not have been objectionable; but as no motion was made to strike out the part of the answer in which witness stated, “telling me, I think, it was from the effects of the fall,” no objection can be taken to it at this time.

It is next contended that the court was in error in permitting-the plaintiff to introduce in evidence a part of the broken plank, which had been removed, as there was no proof that it was in the same condition as when the injury occurred. In this counsel are in error, as it is clearly shown in the record, by the witness Mulliken, that the plank was in the same condition as when it was taken up, which was very soon after the accident.

It is also contended that the court was in error in not permitting the jury to view the premises. This was a matter entirely within the discretion of the court.

It is further contended that the court was in error in charging the jury as follows,

“If there was a hole in the side of the cross-walk that rendered it out of reasonable repair, and so that it was not in reasonably safe condition and fit for public travel for a long time prior to the injury, — for one month to six months prior to the injury, — and said hole was open and notorious, and of such a character as would naturally arrest the attention of the person passing by, then the-city of Corunna will be presumed to' have had notice of said hole, and the unsafe condition of said cross-walk caused thereby.”

Counsel contend that this instruction to the jury determined what was reasonable notice as matter of law, instead of submitting that question to the jury as one of fact. If this portion of the charge, left standing alone, would be error, other portions of the charge cure the defect. At the request of defendant’s counsel the court subsequently charged:

“Before the plaintiff can recover, she must convince ' the jury by a preponderance of the evidence * * * that the defendant, after constructive notice of said hole in the cross-walk, has had sufficient time to put the same in repair, and neglected so to do.”

. The charge, as a whole, cannot be said to have misled the jury as to the law of the case.

Some other errors are assigned, but, after a careful examination of the case, we are satisfied that no error has been committed.

The judgment will be affirmed.

The other Justices concurred’.


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    HARRISON v. SPENCER.
    Mortgages — Tax Title — Adverse Possession.
    A mortgagee of land who takes possession thereof under verbal authority from the mortgagor is entitled, as against a stranger, to set up adverse possession under a tax title under which the mortgagor claimed.
    Error to St. Clair; Vance, J.
    Submitted June 5, 1896.
    Decided July 21, 1896.
    • Ejectment by William Harrison against Horace H. Spencer. From a judgment' for defendant, plaintiff brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Thomas M. Crocker (Atkinson & Wolcott, of counsel), for appellee.
   Montgomery, J.

This was an action of ejectment to recover 80 acres of land in St. Clair county. The plaintiff made a prima facie title from the government, and the defense depended upon proof of adverse possession.

The defendant introduced a tax deed to Ira Spencer, dated February 6, 1861, and recorded October 1, 1864, for the taxes of 1858, and a quitclaim deed from Ira Spencer to defendant, dated April 26, 1862, and recorded October 1, 1864. The lands were then wild lands, but in 1865 defendant made an arrangement with Lorenzo D. Cole to go upon the lands, and get out timber; and he testifies that he went upon the land, made up several trees into oak staves, sold them, and got out some timber for defendant; that he moved into a shanty on the 40 acres adjoining the 80; that, while living on that 40, he worked on the 80, and built a house upon it in 1867, — a log house, with a shake roof; that he moved into this house in March, and left it in June, 1867. Defendant then, January 3, 1868, sold the land by contract to one James Quinn, who never moved upon the land, but went to work and took off timber, to make staves and square timber, “and such like as that,” and worked it for a portion of two years. He paid $100 down on the contract, lived in a house about half a mile from the land, paid the road taxes and general taxes for two years, and testifies that no one interfered with his possession while he was working there. November 21, 1871, defendant deeded the lands to Frederick Wilkes, who gave back a purchase-money mortgage. Wilkes had his brother-in-law, one Frank Carpenter, move upon the land in the spring of 1872. Carpenter took out some oak, made staves, and sold it, under authority from Wilkes. Wilkes himself moved upon the land in April, 1874, and stayed until March, 1875, and moved off the land. During the time he was there, he was sued by one Hinchman, in justice’s court, and there was testimony showing that Hinchman procured a levy to be made upon this land, and a sale was made, and a sheriff’s certificate of sale given to Hinchman. The proceedings were irregular, and not shown to have been sufficient to transfer the title of Wilkes. Defendant afterwards bought the Hinchman title. There is also testimony tending to show that in the spring of 1875, when Wilkes left the premises, he authorized the defendant, orally, to take possession. Very little was done towards taking possession until the spring of 1877, when defendant bought a piece of land adjoining, upon which his son lived, dug a well upon the premises, and cleared them, and raised crops, worked the sugar bush, and, from this time on, paid the taxes upon the land. The evidence fairly shows that the occupation was continuous, open, and hostile from that time on.

The plaintiff contends that prior to 1877 there was no continuous occupancy which amounted to adverse possession ; that defendant’s occupancy under the verbal license or permission from Wilkes cannot be tacked to his former possession; and that, if it can, such occupancy is not to be treated as possession under his tax title, and that, therefore, the adverse possession must have been continuous for 15 years in order to bar the plaintiff’s right. , The request preferred by the plaintiff at the close of the trial was that the court direct a verdict substantially upon the grounds stated. The circuit judge charged the jury that if Mr. Wilkes intended to transfer possession to Mr. Spencer, and Mr. Spencer so understood it, and, in pursuance of that'talk, took possession of the property again, then his possession might be said to be continuous, and not broken by the fact that Wilkes had been in possession; but that if he did go into possession under that arrangement with Wilkes, and they so understood that it was for the purpose 'of transferring that possession, it would not carry with it the tax title which Mr. Spencer had deeded to Wilkes. On the other hand, the court charged that if Spencer went into possession after Wilkes left, because of the fact that he got a deed from Hinchman, then, as matter of law, there would be a break in the possession, which would defeat it; and that, whenever there becomes a lapse or a break in possession where a person is seeking to establish a title by adverse possession, they must then commence their possession over again, because the possession must be continuous and unbroken all the time the statute requires it to run, before it can ever ripen into a title. The court further instructed the jury:

‘ ‘ If you determine from the evidence that there was a breach of the title [possession?] at'the time Wilkes left this land in 1875, then there would not be sufficient time after that, and before the commencement of this suit, for Spencer to acquire adverse possession, because the tax title would be separate from the possessory title.”

We should hesitate, upon the record, to say that there was proof of continuous possession prior to 1877; and, if it were necessary for the jury to find this, it would be doubtful whether the verdict could be sustained. But we think it is clear from the whole record that the jury must have found a continuous, adverse, hostile possession from the spring of 1877 until the commencement of this suit, a period of more than 10 yearsand it is also clear that, in reaching a verdict in favor of defendant, the jury must have found that the possession by defendant was authorized by Wilkes. This being the case, we think the instruction upon one branch of the case was too favorable to plaintiff. Wilkes’ title was the tax title. He was mortgagor to defendant. Whatever may be the right of the mortgagor after abandoning to the mortgagee the possession of the premises, it cannot he said that the mortgagee, who takes possession under the authority of the mortgagor, is not, as against a stranger, entitled to defend by the right of the title of the mortgagor. As against the mortgagor himself, the right of possession exists, under such circumstances, until demand for possession is made. Reading v. Waterman, 46 Mich. 107; Morse v. Byam, 55 Mich. 598; Byers v. Byers, 65 Mich. 598. There having been evidence of a continuous occupancy for a period of 10 years under this tax title, it follows that the plaintiff was not entitled to a directed verdict.

The judgment will be affirmed, with costs.

The other Justices concurred.


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    TIFFANY v. TIFFANY.
    1. Trusts and Trustees — Title to Lands — Parol Trust.
    Under 2 How. Stat. § 5569, providing that when a grant is made to one person, and the consideration therefor is paid by another, no trust shall result in favor of the latter, the title to land conveyed to the brother of the person furnishing the consideration, because of divorce proceedings pending against the latter, vests absolutely in the grantee, in the absence of any written declaration of trust.
    2. Equity — Voluntary Conveyance — Fiduciary Relationship —Fraud.
    A grantor may have relief in a court of equity against a voluntary conveyance of land, where it appears that the deed was made by him while in a condition of partial intoxication, induced by the grantee, who stood to him at the time in a fiduciary relationship.
    Appeal from Monroe; Kinne, J.
    Submitted June 10, 1896.
    Decided July 21, 1896.
    Bill by Talcott Tiffany • against George L. Tiffany and Polly A. Tiffany to set aside certain conveyances alleged to have been fraudulently procured.' Prom a decree for complainant, defendants appeal.
    Modified and affirmed.

      John O. Zabel and Ira G. Humphrey (Willis Baldwin, of counsel), for complainant.

      Charles A. Golden, for defendants,
   Montgomery, J.

This bill is filed to set aside and cancel certain deeds and mortgages made by complainant to defendants, and to compel the reconveyance of lands of the value of about $15,000, and to obtain an accounting for the rents and profits thereof. Two or three different transactions are set up in the bill. As to a portion of the property, the complainant claims as heir of William F. Tiffany, his father, and alleges that in 1880 William F. Tiffany purchased four lots in the village of Dundee; that at the time of the purchase he was in litigation with his wife, and that he, William F. Tiffany, was apprehensive that, should he take deeds of said property in his own name, it would .give to his wife an additional advantage in the divorce proceedings then pending, and in order to save said advantage to himself, and for the protection of complainant, said deceased procured such deeds to be made to his brother, the defendant George L. Tiffany; that it was agreed between them that the title to the property should be held in trust, and that, after the trouble was over between William F. Tiffany and his wife, the defendant George L. Tiffany would convey said property to him, or to such other person as he might designate. On the 4th of March, 1882, the defendants did convey to this complainant two of the lots, subject to a mortgage. The title to the remaining two lots is still in George L. Tiffany, under the conveyance from William F. Tiffany. The bill also sets out that complainant inherited from his father 171 acres of land, and that this, together with the lots conveyed to him by defendants, were by the complainant subsequently conveyed to the defendants on the advice and at the suggestion of defendant George L. Tiffany, without consideration, and that said advice and suggestion was made with intent to cheat, wrong, and defraud complainant of the property described, and upon representations to the effect that complainant was not experienced in business matters, and, in effect, that it would be better for complainant that the title should be vested in defendants. The circuit judge granted the relief prayed in the bill, and the defendants appeal.

As to the lots conveyed by complainant’s father to' defendant George L. Tiffany, ^ and not reconveyed to complainant, we think the decree cannot be sustained. Section 5569, 2 How. Stat., provides that when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made. Under this statute the title vested in defendant, and has never passed out of him. There was no written declaration of trust, and nothing has since transpired to affix a trust. See Shafter v. Huntington, 53 Mich. 310; Barnes v. Munro, 95 Mich. 612; Winans v. Winans’ Estate, 99 Mich. 74.

As to the lands conveyed directly by the complainant to defendants, the case is not free from doubt. The learned circuit judge evidently proceeded upon the theory that defendants should be held trustees in invitum. It is not contended by complainant ’but that, in the absence of fraud, the complainant, having made such conveyances as are set out in this case, would be without remedy. But the contention is that defendant George .L. Tiffany took advantage of certain confidential relations existing between himself and complainant; that he sent for him.to come to his place of residence at Susquehanna, Pa.; that he represented to him that he was a justice of the peace, and had had experience in legal matters; and that he took advantage of complainant’s condition of partial intoxication, induced by himself, and obtained deeds of the property. If the evidence be treated as sufficient to show an active fraud, the statute does not furnish a bar to equitable relief. See 2 Pom.’Eq. Jur. §§ 949, 1055, 1056. The evidence in the case upon this point is not as satisfactory as might be desired, but the case was rested by the defendants without any testimony whatever from the defendant George L. Tiffany himself. The complainant’s testimony as to his condition at the time, and as to the influence exerted over him, stands entirely undisputed. The circuit judge was therefore justified in drawing the most favorable inferences in favor of complainant, particularly as the defense was entirely unconscionable; and we are not disposed to disturb the finding of the circuit judge upon the question of fact. We do not overlook the contention that is made that there is a total want •of evidence to sustain the view adopted by the circuit judge, but we do not assent to that contention by the defendants’ counsel.

The decree will be modified by denying the relief as to lots 3 and 4.of the Wilkerson plat of the village of Dundee, and, as so modified, will stand affirmed. Inasmuch as no costs were awarded to either party in the court below, we think the complainant ought not to be charged with costs in this court.

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


author: Montgomery,- J.

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    AUDITOR GENERAL v. LONGYEAR.
    1. Taxes — Equalization—Validity.
    The provision of the general tax law that the board of supervisors shall examine the assessment rolls of the several townships, and ascertain whether the relative valuation of the “real” property has been uniformly .estimated, and, if they find such valuation to be unequal, shall equalize the same by adding to or deducting from the valuation of the “taxable property ” in any township such an amount as will produce an equal valuation of the “real” property in the county, is substantially complied with where additions are made to the ' valuations of the real property in some townships, and deductions are made in other townships, and the valuations so obtained are added to the valuations of the personal property.
    2. JSahe — Township Meeting — Presumption of Regularity.
    A township record showing a vote of highway and contingent taxes upon the day of the annual township meeting sufficiently shows that the action taken was that of the electors, and it will be presumed that it was taken at the time provided by the statute. 1 How. Stat. § 710.
    3. Same — Highways—Overseer’s Return.
    Under 3 How. Stat. § 1424, providing that no error or omission of duty on the part of the overseer of highways shall invalidate the highway tax assessed by the supervisor, an informality in the overseer’s return will not defeat a proceeding by the auditor general to collect the tax by a sale of the land.

      4. Same — De Facto Officer.
    A tax will not he held illegal in a proceeding for the sale of land therefor, on the ground that the deputy township treasurer, who made the return, was not a resident of the township, where the township treasurer was a resident, and the deputy was in fact appointed, and was an officer de Jacto.

    Appeal from Baraga; Hubbéll, J.
    Submitted June 10, 1896.
    Decided July 21, 1896.

      Petition by Stanley W. Turner, Auditor General, for tbe sale of certain lands delinquent for the taxes of 1893. From a decree for petitioner, John M. Longyear and others appeal.
    Affirmed.

      William K. Haviland, Prosecuting Attorney (Philip R. McKernan, of counsel), for petitioner.

      Irving D. Hanscom, for defendants.
   Montgomery,- J.

This is an appeal from a decree in favor of the State, providing for the sale of lands of the appellants for taxes assessed in the county of Baraga in the year 1893. The questions discussed in the brief of counsel will be considered in their order.

It is contended that the State and county taxes should not be allowed, for the reason that there was no proper equalization. The record of the board of supervisors shows that the supervisors of the several townships presented their assessment rolls, containing a statement of the real estate assessed and of personal property assessed in the respective townships. Thereupon a resolution was adopted, as follows:

Resolved, that the assessment rolls of the various townships in this county be, and the same are hereby, corrected and equalized by deducting from the real estate of the township of L’Anse the sum of $148,120, and by adding to the real estate of the township of Baraga the sum of $29,885, and by deducting from the real estate of the township of Arvon the sum of $5,165, and by adding to the real estate of the township of Spurr $40,800, and by deducting from the real estate of the township of Covington the sum of $10,080.”

Another resolution. followed:

“That the assessment rolls of each township in the county, as now equalized and corrected, be, and they are hereby, approved, and we do hereby declare and determine that the aggregate value of the taxable property of each township in the county for the year 1893, for the assessment of the county tax, be as follows.”

This is followed by a table, with the names of the townships and the amount of assessment opposite each. Another resolution was adopted “ that the equalization of taxable property for the assessment of State taxes be as follows,” which was followed by the same table.

The statute requires the supervisors to—

“Examine the assessment rolls of the several townships, wards, or cities, and ascertain whether the relative valuation of the real property in the respective townships, wards, or cities has been equally and uniformly estimated. If, on such examination, they shall deem such valuation to be relatively unequal, they shall equalize the same by adding to or deducting from the valuation of the taxable property in any township, ward, or city such an amount as, in their judgment, will produce relatively an equal and uniform valuation of the real property in the county, and the amount added to or deducted from the valuation in any township, ward, or city shall be entered upon the records. They shall also cause to be entered upon their records the aggregate valuation of the taxable real and personal property of each township, ward, or city in their county, as determined by them.” Act No. 206, Pub. Acts 1893, § 34.

It is difficult to conceive what of these provisions has not been complied with. It is said that what the board did was to add to or deduct from the real estate, without reference to the total taxable property. This is overtechnical. Whatever addition or deduction is made, is made on account of undervaluation or overvaluation of real estate. The resolution shows this,- — shows the amount added to or deducted from the valuation of the real estate in each township; and the subsequent resolution shows the amount of taxable property determined by the board of supervisors as subject to assessment in each township. The two resolutions together, therefore, show the amount of taxable property in each township, and the amount deducted from or added to the amount stated in the tax roll in each .township, and it shows this none the less because it is stated that the deduction is made on account of the real property valuation, which is the exact fact. It cannot affect the question that the deduction is made from the real property, and the real property so equalized is then added to the personal, and the total stated, instead of adding the real property and personal as assessed, and then making the same deduction. The result in figures is precisely the same. The equalization was valid.

It is next contended that the township taxes should not be allowed, for the reason that the records of the township,do not show whether the vote to raise the township taxes was submitted at the proper time. The record of the vote is as follows:

“April 3, 1893.
“Proposed and carried that there shall be one-half of one per cent, raised for highway money.
“Proposed and carried that we raise one thousand dollars for contingent fund.”

This is the way the record stood when originally made, but it has since been amended to show that this vote was taken at the annual township meeting. We think that the record, although informal, bearing date the day of the annual township meeting, is a sufficient record to show that action was taken by the electors, and that it should be presumed that the action was taken at the time provided by statute.

Complaint is also made of the allowance of the highway labor tax. The return of the overseer of highways was informal, but, as was said in the case of Hamilton & Merryman Co. v. Township of L’Anse, 107 Mich. 419, it was a proceeding taken in the course of the enforcement of the collection of the tax, rather than in the original assessment thereof. The tax was assessed by the commissioner. This being so, it is an informality or neglect of duty by the overseer; and section 1424, 3 How. Stat., provides that no error or omission of duty on the part of the overseer of highways shall invalidate the highway tax assessed by the supervisor on the township assessment roll.

The suggestion is also made that the deputy township treasurer, who made the return, is not a resident of the township, and that therefore his appointment was void. The treasurer himself resided in the township, and the deputy was.in fact appointed, and was an officer de facto. We think the title to his office cannot be .tried in this proceeding. '

The decree will be affirmed, with costs.

The'other Justices concurred.


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    CITIZENS' SAVINGS BANK v. DARLING.
    Husband and Wife — Mortgage—Fraud.
    A mortgage on the separate property of a married woman, given solely to secure an old debt of the husband and his brother, is invalid, where the wife was induced to execute the mortgage by the representation of the husband that it was to be used to obtain additional money ■ to put into his business. Smith v. Osborn, 33 Mich. 410, followed.
    Appeal from Wayne; Haire, J., presiding.
    Submitted June 10, 1896.
    Decided July 21, 1896.
    Bill by the Citizens’ Savings Bank against Emmie M. Darling and Edgar S. ■ Darling to foreclose a mortgage From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Gray & Gray, for complainant.

      Edioard A. Gott and Alfred Bussell, for defendant Emmie M. Darling.
   Long, C. J.

The bill in this case was filed to foreclose a mortgage given by the defendant and her husband, Edgar S. Darling, on property owned by Mrs. Darling. The defense is that Mrs. Darling’s signature to the mortgage was procured by the fraudulent representations of her husband. It appears that Edgar S. Darling and his brother, Elmer E. Darling, were in- business together in Detroit as book agents, and owed a debt to complainant bank. The bank refusing to carry the debt longer without security, Darling went to his wife, and stated to her that he must obtain an advance of money from the bank to put into the business, and that he could not obtain such advance unless she would give a mortgage to the bank on her separate property. He concealed from her the fact that the mortgage was in reality to be used to pay the old debt of himself and his brother to the bank, and was not to be used to get additional money to put into the business. The money was used entirely to pay off the old debt.

The court below, on this state of facts, entered a decree dismissing the bill and discharging the mortgage of record; and also adjudged by the decree that the complainant recover from the defendant Edgar S. Darling the amount of the mortgage and interest, together with the costs of suit. Complainant appeals.

The case is governed by Smith v. Osborn, 33 Mich. 410. The decree of the court below will be affirmed.

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


author: Long, C. J. Long, C. J.

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    MULLREED v. CLARK.
    1. Wills — Construction—Contingent Remainder.
    A devise to the testator’s wife for life, after her death to a designated son, and, “if he should die without heirs,” to two specified daughters, vests the fee in the son if living at the testator’s death, subject to be defeated if he dies without issue surviving him, under 2 How. Stat. § 5538, providing that, when a remainder is limited to take effect on the death of any person without “heirs,” the word “heirs” shall be construed to mean heirs living “at the death of the person named as ancestor.”
    2. Same.
    Under a devise to two of the testator’s three daughters, coupled with the provision that, if either should die without heirs, “then their share is to go to the other sister,” the third daughter of the testator takes upon the contingency mentioned.
    3. Same — Creation oe Estate — Suspension oe Alienation.
    Whether the provision of 2 How. Stat. § 5531, forbidding the suspension of the power of alienation for more than two lives in being at the creation of an estate, is violated b'y the terms of a given devise, is to be determined with reference, not to the time the will was executed, but to the time of the testator’s death, since an estate, under a will cannot be “created” in the testator’s lifetime.
    4. Same.
    Thus, a devise to A. for life, after his death to B., and, in case of B.’s death without heirs, to C. and D., with remainder over to E. upon a like contingency, is valid, where A. did not -'survive the testator, — C. and D. each taking a defeasible fee in an undivided moiety upon B.’s death without issue.
    Appeal from Wayne; Lillibridge, J.
    Submitted June 11, 1896.
    Decided July 21, 1896.
    Rehearing denied November 17, 1896.
    Bill by George Mullreed, executor, etc.,' and another, against Thomas P. Clark and others, to construe the will of Thomas Phillips, deceased. Prom a decree for com' plainants, defendant Clark appeals.
    Reversed.

      Walter Barlow (George Gartner, of counsel), for complainants.

      A. F, & F. M. Freeman (B. M. Thompson, of counsel), for appellant.
   Long, C. J.

The bill in this case was filed to construe the will of Thomas Phillips, deceased, which reads as follows:

“I, Thomas Phillips, of the town of Van Burén, county of Wayne, and State of Michigan, being of sound mind and memory, and considering the uncertainty of this transitory life, make and publish this my last will and testament. That is to say, after my debts are paid out of my personal estate, after that I will and bequeath unto my beloved wife all my real and personal estate, during her life. After her death, the real estate I bequeath to my son James Phillips, providing, always1, that he pays to my two daughters Mary Phillips and Jane Phillips the sum of one thousand dollars each, to be paid within three months after my death; and, if James Phillips should die without heirs, then my real and personal estate is to go to my two daughters Mary Phillips and Jane Phillips; but, if Mary or Jane should die without heirs, then their share to go to the other sister; and the personal estate and moneys left after my wife’s death, if she outlives me, to be equally divided between my son James and my two daughters. Mary and Jane.”

The only question which we need consider is, who took the fee to the real estate of Thomas Phillips, under his said will? The court below construed this will to give the fee to James Phillips, and found that the words, “if James Phillips should die without heirs,” etc., referred to and meant the death of said James Phillips, without heirs, during the lifetime of said testator. Of this construction appellant complains, claiming that the words quoted mean death at any time, without children, it having been conceded in this case that by the word “heirs” the testator meant “children.”

At the date of the execution of this will, the testator’s wife and six children were living. . One daughter, Margaret Bonner, had previously died, leaving nine children. The wife died prior to the death of the testator. The son James Phillips died after the death of the testator, and without issue, and all of the other children, except John Phillips, have since died. All the children died without issue, except Elizabeth Clark and Margaret Bonner, and their children and John Phillips are the sole heirs at law of the testator. The will was duly admitted to probate, and the legacies were paid by James Phillips to Mary and Jane.

The learned court below was in error in the construction he placed upon the paragraph of the will under 'consideration. The statute provides:

. “When a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words ‘ heirs ’ or ‘ issue ’ shall be construed to mean heirs or issue living at the death of the person named as ancestor.” 2 How. Stat. § 5538.

This statute was adopted from New York, and, before its enactment here, had received a construction by the New York courts. In Sherman v. Sherman, 3 Barb. 385, the will under consideration gave certain lands in fee to a son of the testator, and then provided that, if the devisee should die without child or children, then the lands should go to the testator’s grandchildren. The court held that upon the death of the testator the devisee took a fee, defeasible under the executory devise over, and upon his dying without issue the grandchildren took. The court in that case cited the statute of which section 5538, 2 How. Stat., is a copy. The statute has been given a like construction by this court. Goodell v. Hibbard, 32 Mich. 47. “The person named as ancestor” means the person named by the testator as the ancestor; in the present case, James Phillips. James therefore took the fee, defeasible at his death without issue living at that time. At his death the fee, by the terms of the will, was cast upon the sisters Mary and Jane. They having died without issue, “ the other sister ” named in the will was Elizabeth Clark, who was the only sister of Mary and Jane living at the time the will was made, and she consequently took the fee.

The decree of the court below must be reversed, and a decree entered here in accordance with these views. Defendant Clark will recover his costs of both courts from the estate.

The other Justices concurred.

ON APPLICATION POR REHEARING.

Long, C. J.

This cause was in this court at the June term, 1896. An opinion was filed therein on July 21, 1896, and is reported, ante, 229. The cause was reversed, and decree directed to be entered here in favor of defendant Clark. Motion is now made by complainants for a rehearing. It is contended by counsel for complainants that the court erred in the construction given to the will of Thomas Phillips,' — -that, by the construction given, it suspends the power of alienation over the lands in question for a period of over four lives in being at the time of the creation of the estate. Such parts of the will as are necessary for its interpretation are set out in the former opinion.

Section 5531, 2 How. Stat., provides:

“The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate,” etc.

At the time the will was made, the wife of Thomas Phillips was living. She died before the testator. Yet counsel contend she took by the terms of the will an estate for life. The will cannot be construed as taking effect when executed. No estate is created until the death of the testator. Until that time arrives the testator may change or alter it. The rule is well settled that the estate is created at the death of the testator, and not at the time the will is executed. Gray, in his Rule Against Perpetuities (section 231), states:

“As the law should not take wanton pleasure in thwarting the intention of the testator, it seems strange that it could ever have been supposed that the question of remoteness was to be determined by the state of things at the date of a testator’s will, and not at the time of his death. The object of the rule. against perpetuities is to confine the vesting of contingent estates to a short period after their creation; and if it is certain when the estate is created that the contingent event must happen within the required time, it seems a needless interference with the testamentary power to say that the estate is bad because at some time before the estate was created, and when its existence was entirely in the control of the testator, it was not certain that the contingent event would happen within the required time. * * * The rule that the question of remoteness is to be determined from the time of the testator’s death, and not of his will, is now settled.”

The learned author cites many cases in support of this rule. In Chaplin on Suspension of the Power of Alienation (section 8?), this rule is also stated. It is said: ‘ ‘ The creation of the estate takes place at his death, and "the lives must be then in being.” This rule was not only followed in the cases cited by Mr. Gray, but settled in Griffen v. Ford, 1 Bosw. 123; Dungannon v. Smith, 12 Clark & F. 546; McArthur v. Scott, 113 U. S. 340.

The wife of the testator being dead at the time of the creation of the estate, James Phillips was the first taker. The sisters Mary and Jane do not take successive estates in the lands, but each takes a defeasible fee in an undivided moiety, and as to each moiety the power of alienation is suspended for another life, and thus the power as to the whole for only two lives in being at the creation of-the estate. The “other sister,” Elizabeth Clark, therefore took the fee, as held in the former opinion.

The motion for rehearing must be denied.'

The other Justices concurred.


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    VAUGHN v. McFADYEN.
    1. Appeal — Cross Replevin — Questions not Raised Below.
    An objection that a replevin suit is a cross replevin, and unauthorized, cannot be taken on appeal, where the question was not raised below, by plea in abatement or otherwise.
    2. Conditional Sale — Default—Tender—Right of Possession.
    Under a contract for the sale of personal property providing that the title should remain in the seller until payment in full, and that, on default in payment of any of the purchase-money notes, all should become due, and the seller could retake the property, in which case all prior payments should be forfeited, the purchaser becomes entitled to the property on tendering the entire amount remaining due before the seller has actually taken possession, although the latter, on default in payment of one of the notes, has sued out a writ of replevin.
    Error to Ogemaw;. Sharpe, J.
    Submitted June 12, 1896.
    Decided July 21, 1896.
    Replevin by Mollie E. Vaughn and another against Hugh McFadyen for a steam boiler and fixtures. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      F. L. Snodgrass, for appellant.

      H. H. Woodruff, for appellees.
   Montgomery, J.

Plaintiffs are copartners, doing business under the name of the Vaughn Manufacturing Company, and are represented in the business by W. W. Vaughn, as agent or manager. On the 11th of October, 1894, the Vaughn Manufacturing Company purchased of one Robert Ci Bialy a 30-horse-power boiler, with fixtures, smokestack, etc., for the consideration of $250, $50 of which was paid down, and the balance represented by four promissory notes, due at different dates, and each containing the following condition:

“It is expressly agreed that the title and ownership of all said property shall remain in Robert C. Bialy until the full purchase price is paid, and, in case of any default in payment of this or any or either of said notes, all said notes shall,, at the option of Robert C. Bialy, notice of which is hereby waived, become and be at once due and payable, and said property may be taken back by said Robert C. Bialy, and in such case all payments made and amounts collected on this or any of said notes shall be deemed to be payments for the use, wear, and tear of the said property, up to the retaking thereof.”

There was a further condition that bringing of suit should not waive the right to retake the property. All the notes in question were paid, except one. The Vaughn Manufacturing Company also owed Bialy on two other unsecured notes of $49 each. The three notes were sent to an attorney at West Branch for collection, and payment demanded. Mr. Vaughn insisted that the boiler was not as represented, and asked the attorney to write Mr. Bialy, and ascertain if he would not remedy the defect. The attorney accordingly did so, but Mr. Bialy refused to do anything in that regard, and the attorney then demanded possession of the property, which was refused. A suit in replevin was commenced on the 10th of August, 1895; that is to say, an affidavit for replevin was made, and a writ sued out. This writ ran, not against the plaintiffs, but against William W. Vaughn. Before the writ was served, and on the 16th of August, Mr. Vaughn, on behalf of the plaintiffs, tendered $54, the full amount due on the contract, and demanded possession of the note. Possession was refused by Mr. Bialy’s attorney, Mr. Snodgrass, to whom the tender was made, he claiming that Mr. Bialy was then entitled to the property under the terms of the contract note. Subsequently, on the 17th of August, the sheriff executed the writ of replevin, by taking the property into his custody, and the plaintiffs brought replevin against the sheriff. Plaintiffs recovered the property in the action, and judgment was awarded in favor of the defendant for the amount of the note and interest. Defendant brings error.

It is suggested, at the close of defendant’s brief, that this is a cross replevin, such as is not authorized. There was no such question raised in the court below, by plea in abatement or otherwise, and it cannot now be considered.

Substantially the only question in the case is whether Mr. Snodgrass was right in refusing the tender. It is to be borne in mind that when the tender was made possession of the property had not been taken under the clause of the note authorizing Bialy to do so, and, under the strict reading of the condition, the forfeiture of payments, if enforced literally, was only to occur when the property had been taken back by Bialy. We think it is clear that a payment made at any time before possession was actually taken would have vested the title in the Vaughn Manufacturing Company, and that a tender of such payment would work the same result. The ground of refusing the tender was distinctly that the payee insisted upon this right of forfeiture. There was no suggestion that any costs had been incurred, or that a suit had been instituted; nor do the findings show that plaintiffs were aware that such suit had been brought at the time. It is quite evident that the real purpose was to get possession of this property to enforce payment of the unsecured, as well as the secured, notes.

We think no error was committed to the prejudice of the defendant, and the judgment will he affirmed.

The other Justices concurred.


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    MOORE v. McINTYRE.
    1. Drains — Legality op Proceedings — Estoppel.
    Under 3 How. Stat. § 1740e4, providing that the proceedings for the establishment of a drain shall he subject to review-on certiorari if brought within the prescribed time, but that, if not so brought, the legality of the proceedings shall not thereafter he questioned, a person assessed for benefits, to whom the statutory remedy was open, cannot, after the drain has been partially constructed, maintain a bill in equity to set aside the proceedings because of an alleged irregularity therein.
    2. Same — Notice—Common-Law Remedy — Laches.
    Though the statutory remedy by certiorari was unavailable, for want of notice of the action of the authorities, to one so assessed, he is precluded from a review of the proceedings by the common-law writ, if, after acquiring knowL'.. edge thereof, he fails to act with reasonable promptness; and the same rule is applicable where it is sought to attack the proceedings by bill in equity.
    Appeal from Ingham; Person, J.
    Submitted June 10, 1896.
    Decided July 21, 1896.
    Bill by William S. Moore and Charles Poler against George McIntyre, county drain commissioner, and George Dell, township treasurer, to set aside the proceedings for the establishment of a county drain. Prom a decree dismissing the bill, complainants appeal.
    Affirmed.

      A. M. Cummins, for complainants.

      Laiuton T. Hemans, for defendants.
   Montgomery, J.

This bill is filed to set aside certain drain proceedings, and to compel the refunding of a tax paid under protest. The decree of the court below dismissed the bill of complaint, and complainants appeal. The drain in question is an extensive improvement in the interior of Ingham county, involving an outlay of some $6,000. The application for the construction of the drain was filed with the drain commissioner October •5, 1891. In November, 1892, a survey of, the drain on the line proposed in the application was made. March 18, 1893, the drain commissioner made his first order of determination, and on September 12, 1893, filed with the prohate court a petition for the appointment of special commissioners on the drain. A citation was duly served, ■and one of the complainants appeared in court. A claim is made, however, that the citation was informal and insufficient, and did not confer .jurisdiction upon the ■court to proceed.' The special commissioners found' no damage to the complainants in the taking of the right ■of way, and no damages were awarded.

It appears that every step required by the statute relative to the construction of drains has been taken. The complaint made is not of the absence of proceedings, but of the informality and irregularity of those taken. No steps whatever were taken by complainants to test the legality ■of the errors of which they now complain until the first year’s assessment had been paid, and the drain was well along in the course of its construction. The answer shows that nearly $3,400 of the tax has been paid, and that the ditch has not been constructed for its full length, so that, if its construction were now arrested, more than one-half of those who have paid their tax in these proceedings would derive no benefit therefrom.

Section 1740e4, 3 How. Stat., provides for a review of the proceedings to lay out a drain by certiorari, and provides that—

“If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally ■established, and its legality shall not thereafter be questioned in any suit at law or equity; Provided further, that, when such proceedings are brought, the commissioner shall postpone the letting of contracts, and all other proceedings, until after the determination of the court.”

It is contended that this provision does not apply to jurisdictional defects. It is true, there may be cases where the action of the authorities is taken without any notice whatever, in which the statutory remedy by ■certiorari may not be possible of application, and in which a common-law certiorari may be open. See Loree v. Smith, 100 Mich. 252. In such case the injured party will always be required to act promptly on knowledge of the proceedings coming to him; and in the present case, if the proceedings were by common-law writ of ■Certiorari, the doctrine of laches would defeat the remedy sought by these complainants. The learned cir■cuit judge very pertinently said in this case:

“One who will thus keep silent to the injury of the public and of his neighbors might well be held estopped by his own inaction. His conduct is opposed to natural justice. To avoid such loss to the public and'1 injury to individuals, the legislature has aimed to settle finally and forever all questions relating to the establishment of ■drains, before the distinct branch of construction and tax-, ation should be entered upon. The purpose is wise and beneficial, and the law should be applied as effectually as possible.”

We have repeatedly held that the owner of land who ■sits by when improvements are being made under statutory authority, knowing that the only method of compensating those who perform the labor is by an assessment for benefits, cannot, after the benefits have been reaped, resort to a court of equity for redress. Byram v. City of Detroit, 50 Mich. 56; Lundbom v. City of Manistee, 93 Mich. 170; Goodwillie v. City of Detroit, 103 Mich. 283; Atwell v. Barnes, 109 Mich. 10.

We think this case falls within the principle of the cases cited, and the decree of the court below will be affirmed, with costs.

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