author: " Montgomery, J.

text:
    FINN v. ADAMS.
    1. Judgments—Vacation—Equity.
    A judgment at law may be vacated by a court of equity in a proper case, but the exercise of such jurisdiction is rare, and is only exercised after it has been made clearly to appear that an injustice has been done.
    3> Parent and Child—Support of Children—Implied Agency.
    Where, as in this State, the statute (2 Comp. Laws, § 4495) imposes a legal duty upon a parent to support his minor children, a total abandonment of a child raises an implied agency on the child’s part to bind the parent for necessaries.
    3. Same—Judgment—Setting Aside.
    On a bill to set aside a judgment and sale in .attachment, founded on a claim for necessaries furnished the minor children of a life convict, evidence examined, and held that it would be inequitable to sustain the bill.
    4. Money Received—Life Convict.
    Where, after complainant’s incarceration for life, defendant collected a claim which had belonged to complainant prior to incarceration, which was paid to defendant as guardian of complainant’s children in recognition of defendant’s claim that the right to the money had passed to him as such guardian, complainant’s remedy against his debtor not being thereby affected, he was not entitled to recover the money from defendant as money received to his use.

      Appeal from Marquette; Stone, J.
    Submitted October 6, 1904.
    (Docket No. 29.)
    Decided November 29, 1904.
    Bill by Lawrence Finn against Sidney Adams and George W. Shaw to vacate a judgment and sale in attachment. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John L. Heffernan {C. F. Button, of counsel), for ■complainant.

      Hill & Smith, for defendants.
   " Montgomery, J.

The bill in this case was filed to wacate a judgment in attachment and sale thereunder of. the property attached to defendant Adams and also a sale by him to the defendant Shaw. The attachment proceedings were admittedly regular, and the title which passed was good in law. The bill also attempts to charge the defendant Adams, as trustee of a fund of $192, received of F. W. Read & Co., as hereinafter stated.

The theory of the complainant appears to be that there was concealment'of the fact of the pendency of the attachment suit at a time when defendant Adams had an opportunity to communicate the fact, and that there was in fact mo valid claim existing in favor of the defendant Adams (plaintiff in attachment) on which to base the attachment proceedings.

The facts are involved. It appears that in December, 1887, the complainant was convicted of the murder of his wife, and sentenced to the State prison at Jackson for life. That at the time of his incarceration he left two minor sons, 14 and 16 years of age, respectively, and he also •owed some small debts. His property consisted of the lot in question, then of small value, not exceeding $300, and a claim against F. W. Read & Co., of $192, for money which had been deposited with them in the expectation that it would be repaid in lumber with which complainant expected to build a house on the lot in question.

Under the advice of an attorney that complainant had, by his sentence, suffered civil death, and that his estate had descended to his children the same as though he was actually dead, an aunt of the children filed a petition in the probate court for the appointment of the defendant Adams as guardian of the children. Such appointment was made. Later, acting under an order of the circuit court in chancery, the defendant sold the lot in question to one Blackbird. Defendant Adams loaned Blackbird the purchase price and other money with which to pay for improvements, taking security back from Blackbird for the same. Under this security defendant Adams has succeeded to the rights of Blackbird. Defendant Adams also received from Read & Co. the $192 in their hands. Defendant Adams paid out for the use of the two boys in the purchase of necessaries, for board, clothing, and medical attendance, $129.52, and in addition paid to the older son $150 after he attained his majority.

Upon discovering, in 1893, that these entire proceedings were void, defendant Adams visited the complainant in prison, and stated to him the facts as to the expenditures made by him, and asked that the complainant deed the land to him to answer his demand. This complainant declined to do. Adams secured an assignment of the claims from most of the parties who directly furnished the necessaries to the two boys, and brought suit in attachment, causing a levy to be made upon the land in question. The suit proceeded to judgment. A sale of the property was made, and Adams became the purchaser. It appears that the attachment proceedings were instituted before Adams’ visit to complainant, and that they were not referred to in the interview.

It is the contention of the complainant that Adams had no claim against him, and that if he (complainant) had been notified of the suit he could have successfully defended against him. If the claim asserted by Adams in the attachment suit had been wholly unconscionable, there would be much force in this contention. If, on the other hand, the demand upon which that suit was based' was one which, in justice and equity, the defendant was under obligations to pay, and the whole interest of complainant in the land sold did not exceed the amount justly owing by the complainant, we are not able to perceive how the complainant has suffered any wrong which a ■court of equity will take cognizance of. A judgment at law may be vacated by a court of equity in a proper case, but the exercise of such jurisdiction is rare. It is only exercised after it has been made to appear clearly that an injustice has been done. Cleveland Iron Mining Co. v. Husby, 72 Mich. 61; Mueller v. Marsh, 116 Mich. 378. In the present case there can be no doubt that the complainant was under legal obligation to furnish his minor sons with the necessaries of life. Courtright v. Courtright, 40 Mich. 633. And, while the authorities are not fully agreed, we think the better rule is that, where the duty to maintain one’s children is made a legal duty by statute, as by our statute (section 4495, 2 Comp. Laws), the same agency to bind the father for necessaries is to be implied where there is a total abandonment of a minor child, incapable of supporting himself, as is implied in the wife on desertion by her husband. Stanton v. Willson, 3 Day, 37; Dennis v. Clark, 2 Cush. 353; Lamson v. Varnum, 171 Mass. 237; Zilley v. Dunwiddie, 98 Wis. 428; 21 Am. & Eng. Enc. Law (2d Ed.), pp. 1052-1054, and cases cited. The evidence is not full as to whether all the money expended on behalf of those minors was so essential as to justify the application of the doctrine of implied agency, but, as that question was necessarily determined in the attachment case, and as we see no reason for questioning the good faith of Mr. Adams’ claim in that regard, we assume that the expenditures were such as fall fairly within the rule.

But it is insisted that Adams’ money did not pay for these necessaries, and that, therefore, he had no claim, although others may have had. This is stating the form, rather than the substance, of the transaction. Adams in fact paid the money for the necessaries.' This, as between, complainant and Adams, ought to be sufficient. But if we go further, and take account of the fact that Adams nominally received the money on an ineffectual sale of this lot, we may further find from the record that it was money which he himself advanced, and that he has succeeded to-all the rights which Blackbird acquired. We are convinced that, in any view we may take, it would be grossly inequitable to set aside this judgment and sale.

Is complainant entitled to recover the $192 received by defendant of Read & Co.? The circuit judge held that he was not, and on the ground that there was no privity between complainant and defendant. The complainant contends that this view is mistaken, and that the money was received by defendant as money coming through the-complainant. We are not able, however, to distinguish this case from Corey v. Webber, 96 Mich. 357; for while-the defendant, when he received this money, did so in recognition of the fact that the claim against Read & Co. had once belonged to complainant, it was received by him upon the claim that the right had passed to defendant as guardian of complainant’s children, and was paid by Read & Co. in recognition of that claim. Complainant’s remedy against Read & Co. was in no way affected or postponed. No specific fund of complainant was diverted. The caséis within the principle of Corey v. Webber, and cases cited.

The decree dismissing the complainant’s bill is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    McVEAN v. DETROIT UNITED RAILWAY.
    1. Street Railroads—Injuries to Travelers—Negligence.
    A street-railway motorman, approaching a vehicle from behind, and seeing other vehicles in a narrow space between the track and curb, and observing that the horse attached to the vehicle appears to be frightened, is bound to immediately bring his car under control, so far as it is possible for him to do so.
    2. Same—Contributory Negligence.
    Plaintiff, a girl 15 years of age, was riding with her sister in a buggy drawn by a horse ordinarily gentle, but which became frightened at the approach of a street car at a high rate of speed, causing dust and leaves to fly into the air. Plaintiff, who was obliged to act quickly, and not knowing the speed of the car or its exact distance from her, attempted to ’ alight, to hold the horse by the head until the car passed, when the car struck her. Held, that plaintiff was not guilty of contributory negligence, as a matter of law.
    Error to Oakland; Smith, J.
    Submitted October 20, 1904.
    (Docket No. 62.)
    Decided November 29, 1904.
    Case by Ethel McVean, by next friend, against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Defendant’s track runs over North Saginaw street, in the city of Pontiac. The street is 30 feet 2 inches wide, the distance between the west rail and the curb being 12 feet and 7 inches. The car projected 22¿ inches beyond the track. /
    Plaintiff, 15 years old, was riding with her sister in a buggy drawn by one horse. Her sister was driving, sitting on the right side of the buggy, next to the curb; plaintiff, on the left side, next to the track. They were going south. Defendant’s car approached them from behind. The horse became somewhat frightened. Plaintiff jumped from the buggy, with the intention, as shown by the testimony of her sister, of getting the horse by the head and holding him while the car passed. As or immediately after she jumped from the buggy, the car struck her, inflicting serious injury. The horse was gentle and accustomed to cars. The negligence charged is that the defendant ran the car at an excessive and unlawful rate of speed, thereby causing the dust and leaves to fly in the air, which frightened the horse, and that the motorman did not keep his car under sufficient control.
    The jury found, in reply to special questions propounded to them by the defendant, that the act of plaintiff “in getting out of the buggy was the act of an ordinarily prudent person of her years, under similar circumstances, taking into account the narrowness of the street and the speed of the approaching car; that, if the car had been traveling at the rate of four or five miles per hour, the motorman could have stopped the car in time to prevent hitting the plaintiff; and that the commotion of the leaves and dust raised by the speed of the car frightened the horse.” She obtained a verdict and judgment.

      Brennan, Donnelly & Van De Mark (James H. Lynch, of counsel), for appellant.

      Patterson & Patterson, for appellee.
   Grant, J.

(after stating the facts). Defendant’s counsel insist that there was no negligence on the part of the defendant, and that the plaintiff was guilty of contributory negligence in jumping from the buggy. The defendant, both in reason and under the authorities cited by the defendant, could not be held liable for the commotion of leaves and dust caused by running at the ordinary and lawful rate of speed. The case was not submitted to the jury upon that theory.

The evidence on the part of the plaintiff tended to show a speed as high as 20 miles an hour, and that this unusual rate of speed caused an unusual commotion of leaves and ■dust, which frightened the horse.

The motorman admitted that, when he saw the horse .appeared to be frightened, he did not at once bring his car under control, but gradually reduced its speed. There were other vehicles in this narrow space, and we think it was the duty of the motorman, on seeing that any horse in such a place was frightened, to immediately bring his •car under control, so far as it was possible for him to do so.

The plaintiff was not, as a matter of law, guilty of contributory negligence. We cannot say that it was an imprudent thing for her to alight for the purpose of getting ■the frightened horse by the head, in the attempt to hold him while the car passed. She was obliged to act quickly. •She could not tell the*speed of the car, or the exact distance it was from her when she began to alight. It may have seemed to her that there was ample time for her to •alight and seize the horse by the head before the car passed.

The questions of negligence on the part of the defendant and of the plaintiff were properly submitted to the jury. This casé is ruled by the following decisions, and the cases which are there cited: Chauvin v. Railway, 135 Mich. 85; Selleck v. Railway Co., 93 Mich. 375; McClellan w. Railway Co., 105 Mich. 101; Montgomery v. Railway Co., 103 Mich. 46.

Judgment affirmed.

The other Justices concurred.


author: Moore, C. J.

text:
    THOMAS v. SULLIVAN.
    1. Deeds—Delivery—Presumption.
    Where a deed is delivered by the grantor to a third person, there is no presumption that such delivery is for the use of the grantee.

      2. Same—Sufficiency of Evidence.
    On a bill to cancel a deed delivered to a third person, evidence-considered, and held not to show a delivery for the use of the grantee.
    Appeal from Berrien; Coolidge, J.
    Submitted October 20, 1904.
    (Docket No. 63.)
    Decided November 29, 1904.
    Bill by John Thomas, Jr., against Catherine Sullivan for the cancellation of a deed. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree for complainant.

      Gore & Harvey, for complainant.

      Lawrence G. Fyfe, for defendant.
   Moore, C. J.

The parties to this litigation are brother and sister. Their parents were John Thomas, Sr., and Catherine Thomas. The bill is filed for the purpose of having a deed to certain real estate made in December, 1880, in which Catherine Thomas was grantor, and Catherine Sullivan was grantee, canceled. The circuit judge-refused to grant the prayer of the bill of complaint and. dismissed the bill. The case is brought here by appeal.

The record discloses that Catherine Thomas obtained, title to the land described in the deed in 1863. It was a. vacant lot in the village of Benton Harbor at the time the. deed in controversy was made. After this deed was made, and before the death of the grantor, John Thomas, Sr., built a brick store building upon the premises, in the upper-story of which he and his wife lived for a few years prior-to her death, which occurred September 14, 1885. After the death of Mrs. Thomas, John Thomas, Sr., continued to occupy and control the premises until his death, which occurred in August, 1901.

It is the claim of defendant, and she so testified, that after her mother’s death her father told her he would carry the deed made by her mother in December, 1880, over to the county seat, and have it recorded. She also testified that about 1893, in the presence of Mrs. Wright and Mr. Hicks, her father took the deed out of his safe and delivered it to her, when she read it and Mr. Hicks read it, and there was some talk about the necessity of its being recorded; that she then gave the deed back to her father, who returned it to the safe. The testimony of Mrs. Wright and Mr. Hicks tends to sustain this testimony, though neither of them are very clear or positive in their statements. The following is a fair sample of the way Mrs. Wright testified:

Q. Tell us what was done and what was said there at that time ? A. I think that at that time that he asked Mr. Hicks if that deed would hold water, and I think that Mr. Hicks made the statement that that deed was all right; it Was a genuine warranty deed. And Mr. Thomas, I think, made a statement of some little affairs that I could not just remember or repeat the whole conversation, and he said that that property at his death went to Mrs. Sullivan; and, if I remember right, Mr. Hicks took the deed and read it, and handed it to Mrs. Sullivan, and she read the deed.

“ Q. Then what was done? A. I think Mrs. Sullivan gave the deed to Mr. Thomas, and he put it in the safe.

Q. So that deed was handed to Mrs. Sullivan, and she read it then and there? A. Yes, sir.

Q. What did Mr. Thomas say to Mrs. Sullivan, if anything, at that time he [Hicks] handed her the deed? A. I don’t remember any particular conversation.”

The following from the testimony of Mr. Hicks will show how indefinite his testimony was:

“Q. Would you please tell us what the conversation was at that time? A. Well, Mr. Fyfe, I can only tell the substance of it.

“Q. Give us the substance of it. A. The substance was of inquiry from Mr. Thomas in reference to whether that deed should be recorded or not, and I said at that time it was not a necessity whatever; that Mrs. Sullivan evidently owned the place, and it rested with her—something of that description—and he seemed to be satisfied. She had the deed then in her hands, and I think I took it from her and read it, and passed it back to her or him. I don’t remember now. I can’t remember.

“Q. Do you remember who gave her the deed? A. Well, to the best of my knowledge, he was sitting on a lounge. There is a lounge on the side of the room, and he sat on that, and I think he handed her the deed, or handed it to me. I think he handed her the deed. That is the best of my knowledge. That is as I remember it at present. In fact, it had got out of my mind until I heard Mrs. Wright state the facts here—state as she did—and it is quite a stretch of memory now to call it to mind.”

A question is raised as to the competency of Mrs. Sullivan to testify, it being claimed that' she was barred by the statute. It was also claimed that Mr. Hicks was not a competent witness, because he testified in relation to knowledge which came to him as the legal adviser of Mr. Thomas. It is also claimed that, giving the fullest effect to this testimony, it did not establish a delivery of the deed by Mr. Thomas to his daughter. Because of our view of another feature of the case, which will appear later, it is not necessary to pass upon either of the above questions. There is nothing in the record to show that, after this talk participated in by the father and daughter, Mrs. Wright, and Mr. Hicks, that any one but Mr. Thomas, Sr., had possession of the deed until after his death. The estate of Catherine Thomas was never probated. John Thomas, Sr., made a will, which was duly probated. His administrator with the will annexed took possession of the real estate described in the deed, and refused to pay the rental value thereof to John Thomas, Jr., and Catherine Sullivan. On December 23, 1901, they joined in a petition to the judge of probate, representing that “they were, and now are, the owners in fee simple, and entitled to the possession, use, rents, and income of the following described premises, to wit.” Then followed a de- , scription of the land described in the deed, and a prayer that the administrator be required to account to them for rent. A few days thereafter Mrs. Sullivan received by mail the deed which had been recorded in the office of the register of deeds. On the 27th of January, 1902, she withdrew her name from the petition. She testified that she did not know who sent the deed to the register’s office, nor where it came from before it was sent there. The record does not disclose where the deed was found, or who sent it to the register. Mrs. Sullivan says that, when she joined in the petition referred to above, she supposed her father had destroyed the deed, and did not want to have litigation with her brother; that, when she learned the deed was in existence, she concluded to assert her rights under it.

So far we have not referred to what the record discloses in relation to why the deed was put in the possession of. John Thomas, Sr., instead of being delivered by Mrs. Thomas to her daughter Mrs. Sullivan. All the testimony there is upon that subject is as follows: The deed was witnessed by Wells Brown and C. S. Boyle. It was admitted that Mr. Boyle was sick at the time of the trial, but, if present, would testify “that Mr. Thomas came across the street to his store and asked him to go over to his house, as he desired him to witness a paper, and he went over, and Mr. Wells Brown was there, and he saw a deed signed, and that Mr. Brown signed it, also himself, as a witness, and that Mr. Thomas told him he wasn’t going to put it on record then, but wanted to have it ready, so that he could put it on record at some future time when it became necessary.”

About four months before John Thomas died, he made a will in which he devised and bequeathed most of his property, including the property described in the deed, to his two children, John Thomas and Catherine Sullivan, share and share alike, and stated therein :

‘ ‘ This accords with the will of my wife Catherine I. Thomas, made verbally to myself, that whereas my son forced me out of the tanning business to the detriment of my business as a whole, and in disregard of any duty he might owe to his parents, a deed was made and given into my keeping, with the injunction of a mother’s love, that should my son do better thereafter, this deed should be destroyed and both children share alike.”

It will be observed that Mr. Boyle does not suggest any direction by the grantor, Mrs. Thomas, as to what should be done with the deed. Mr. Thomas, in his will, says it was delivered with the injunction that, if the son did better, the deed should be destroyed. If this recital in the will is competent evidence, it is clear the condition has never arisen under which the deed was to be delivered to Mrs. Sullivan. If it is not competent evidence, then the record is bare of any direction upon the part of the mother that the father should deliver the deed to the grantee. The rule is well settled that, if a deed is delivered by the grantor to the grantee, the presumption arises that it is for his use, but, if it is handed to a stranger, there is no such presumption, for the delivering to the stranger may have been by mistake or for safe-keeping simply, or for some other purpose wholly independent of an intent to transfer the estate.

In Trask v. Trask, 90 Iowa, 318, it is said:

“ A delivery to a third person does not authorize a presumption that it is done with the intention of passing the title. The facts and circumstances attending the transaction must be such as to show that the grantor intended that the deed should be delivered by the custodian to the grantee. Every such case must be determined by the intention of the grantor.”

In Mitchell’s Lessee v. Ryan, 3 Ohio St. 382, the court say:

“If the deed be delivered to the grantee^, the natural presumption is that it is for his use, 'and no words are necessary. But if it be handed to a stranger, there is no such natural presumption; and hence, unless there be something besides the mere act of delivery to evidence the intent, it is impossible to say that the grantor designed to part with the title. For the delivery may be by mistake, or for mere safe-keeping, or for some other cause wholly independent of a purpose to transfer the estate.”

We understand this to be the rule.

It is clear, we think, that there is an entire failure to show a delivery of the deed to John Thomas, Sr., with the intent to have it transfer the estate to Catherine Sullivan. "We deem it unnecessary to discuss the other interesting questions raised by counsel.

The decree is reversed, and one will be entered here granting the relief prayed, with costs of both courts.

The other Justices concurred.


author: Hooker, J.

text:
    ERWIN v. OTTAWA CIRCUIT JUDGE.
    Executors’ Accounts — Production op Books — Appealable Orders.
    An order of the probate court to produce for examination certain books and papers, to be used in a pending controversy over the removal of an executor and the settlement of his account, is not appealable to the circuit court under 1 Comp. Laws, § 669.
    Mandamus by David D. Erwin, guardian ad litem and ■next friend of Edward P. Ferry, an incompetent, and ■others, to compel Philip Padgham, circuit judge of Ottawa county, to vacate an order dismissing certain appeals from the probate court.
    Submitted November 15, 1904.
    (Calendar No. 20,741.)
    Writ denied November 29, 1904.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp and Kingsley & Wicks (George A. Farr, of counsel), for xelators.

      Butterfield & Keeney and Walter I. Lillie, for respondent.
   Hooker, J.

We are asked to issue a peremptory mandamus to compel the respondent to vacate two orders dismissing appeals taken by the respective relators from art order made by the probate court of Ottawa county, requiring relators to produce certain books of account and documents alleged to relate to the management by Edward P. Ferry, executor, of the affairs of the estate of William M. Ferry, deceased, of which he was administrator.

William M. Ferry is alleged to have died at his home in Grand Haven, Ottawa county, Mich., in the year 1867. Edward P. Ferry, his son, was made executor of his will,, and has so continued to the present time.

On June 26, 1903, certain relatives, claiming to have interests in the estate, filed in the probate court having jurisdiction of the estate a petition asking the removal of Edward P. Ferry from the office of executor, and that he render an account of his doings as such executor. It is-claimed that in this litigation there are upon one side Edward P. Ferry, the executor, and upon the other all of the residuary legatees and devisees under the will, including the distributees of such as are not living. A hearing was had upon the petition on July 21, 1903, and at such, hearing there appeared before the probate court John Vanderwerp and David D. Erwin, of Muskegon, and Edward. S. Ferry, of Salt Lake City, Utah, of which latter place Edward P. Ferry is, and for some years has been, a resident. Edward S. and W. Mont. Ferry are sons of Edward P. Ferry, and upon application of the parties mentioned as having appeared David D. Erwin was appointed “guardian ad litem and next friend” of Edward P. Ferry, who was shown to be an incompetent person, over whom W. Mont. Ferry and Edward S. Ferry were general guardians, appointed by a Utah court. On the same day Erwin, as guardian, etc., filed an. answer and a cross-petition in which he prayed for the discharge of Edward P. Ferry from his, trust as executor of his father’s will. Issue was joined upon the cross-petition, and the hearing was set for October 27, 1903. On October 19, 1903, the appellees filed a petition asking that the relators be ordered to produce certain books and papers, which it was alleged would throw light upon the administration of the estate, and aid in determining the correct state of the account. A citation was issued returnable October 27, 1903, and this was returned duly served within the jurisdiction of the court on each of the relators. The relators Edward S. and W. Mont. Eerrv appeared in person and by counsel, and filed objections to the jurisdiction of the court and the proceedings. Erwin ' answered, and a trial was had, which is said to have lasted four days. As a result the probate court made an order on November 4th requiring the production and deposit with the probate court within a time fixed, for examination, certain books and papers which related to the affairs of the estate, some or all of which he found to have been surreptitiously removed from the State of Michigan by the relators, or some of them.

Separate appeals were taken under 1 Comp. Laws, § 669, by Erwin and the two Ferrys (relators), and subsequently these appeals were dismissed by the respondent upon the ground that the orders were not appealable.

The questions before us are: (1) Were the orders appealable ? (2) If not, should the writ be denied upon the ground that the appellees have waived their right to question the validity of the appeals ?

The true nature of the proceeding appealed from is one ancillary to the then pending controversy over the removal of the executor and his account, designed to place before the court evidence in the control of the relators pertinent and indispensable to a proper determination of those questions. So far as the question of waiver is concerned, we think it disposed of by the returns of the respondent, which indicates that the appellees sought to dismiss the appeal, and conditioned their notice of hearing upon a failure of their motion. Hence we need not consider the question of the possibility of a court, through a waiver, acquiring jurisdiction over the subject-matter of a controversy of a nature not appealable.

The statute upon which the relators rely to support their right to appeal is section 669 of the Compiled Laws:

“ (669) Sec. 25. In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree, ór denial of a judge of probate, may appeal therefrom to the circuit court for the same county, by filing a notice thereof with the judge of probate within sixty days from the date of the act appealed from, with his reasons for such appeal, together with such bond as is required in the next section.”

On the other hand, the appellees base their proceeding upon sections 9355 and 9356, which are as follows:

“Sec. 9355. If any executor or administrator, heir, legatee, creditor, or other person interested in the estate of any deceased person, shall complain to the judge of probate, on oath, that any person is suspected to have concealed, embezzled, conveyed away, or disposed of any money, goods, or chattels of the deceased, or that such person has in his possession or knowledge, any deeds, conveyances, bonds, contracts, or other writings, which contain evidence of, or tend to disclose the right, title, interest, or claim of the deceased to any real or personal estate, or any claim or demand, or any last will and testament of the deceased, the said judge may cite such suspected person to appear before the court of probate, and may examine him, on oath, upon the matter of such complaint.

“ Sec. 9356. If the person so cited shall refuse to appear and submit to such examination, or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may, by warrant for that purpose, commit him to the common jail of the county, there to remain in close custody until he shall submit to the order of the court. The probate judge shall cause the examination to be taken down by a stenographer, or in such mode as shall in his discretion seem to him best, and said judge shall direct all such interrogatories and answers to be reduced to writing, signed by the party, and filed in the probate court.”

Various cases heretofore decided by us sustain the validity of these statutes and the power of the probate court to compel the production of books and papers under them. The case of Perrin v. Calhoun Circuit Judge, 49 Mich. 342, was one in which most of the questions before us were involved. It is again alluded to in the final disposition of the case in Perrin v. Lepper, 72 Mich. 454, and settles the authority of probate courts to make and enforce such orders under the statute. See, also, Palmer v. Jackson Circuit Judge, 90 Mich. 1, and the case of Eames v. Manly, 117 Fed. 391.

The statute is a broad one in terms, but as early as in the 5th of Michigan this court called attention to the fact that probate proceedings were necessarily summary, and that—

“To allow a writ of error to the circuit court for the purpose of reviewing its proceedings upon these appeals would interminably procrastinate the settlement of estates, and operate as a most oppressive burden upon the public. This consideration of itself, were the question a doubtful one, would induce us to hesitate long before we recognized this remedy; but a consideration of the nature of the writ and the remedy satisfies us that it lies in no case where the proceedings are'not after the course of the common law, and only after judgment on an issue formed according to it; and it is not enough that the proceedings are in a court which ordinarily and primarily exercises common-law jurisdiction. It is true this court has exercised jurisdiction in cases of appeals from probate judges to the circuit courts, and also in appeals from commissioners of claims to that court (citing cases); but all these cases were after trials in the circuit upon issues of fact, and where the proceedings were after the course of the common law; and no instance is known of the exercise of this jurisdiction where the appeal was from an interlocutory order or discretionary ruling, and where the office of the appeal was to obtain a review, and not a trial of a question of fact.” Holbrook v. Cook, 5 Mich. 230.

We have frequently since held it inapplicable to orders made by the probate court. Thus, in Walker v. Hull, 35 Mich. 488, it was held that an order appointing a special administrator was not reviewable, though one appointing a general guardian is for obvious reasons. See Goss v. Stone, 63 Mich. 319. While in that case the court carefully preserved the right of appeal from orders affecting the merits of a proceeding, it is said that the exceptions include “such interlocutory and subsidiary orders as are made during the pendency of suits or proceedings, and which end with or before them,” illustrating by the following, viz.: “Such instances occur in the appointment of guardians ad litem ( Walker v. Hull, 35 Mich. 488), temporary allowances of some kinds (Moore v. Moore, 48 Mich. 271), and the usual orders and directions regulating the current procedure.” In Sparrow v. Ingham Circuit Judge, 109 Mich. 272, the statute was held not to apply to the case of one committed to an insane asylum; and in Lorimer v. Wayne Circuit Judge, 116 Mich. 682, an order determining heirs was held not appealable. An order for widow’s allowance has been held not appealable in several cases. Moore v. Moore, supra; Freeman v. Washtenaw Probate Judge, 79 Mich. 390; In re Power’s Estate, 92 Mich. 106; Bordwell v. Saginaw Circuit Judge, 119 Mich. 421; In re Koch’s Estate, 121 Mich. 667.

If it were the rule that any order of the court made with a view to obtaining testimony were subject to review before the testimony could be procured and the trial proceed, there would be no end to delay. It is well illustrated in the present case, where an order to a witness to produce testimony was litigated four days in the trial court, and over a year later is still in this court upon a question not going to the merits. Such orders, though perhaps final upon the merits of the ancillary proceeding, are not final, nor are they decisive of the merits of the proceeding to which they are ancillary; and unless they deprive one of a right or property they are not appealable, as we have seen, and this must depend upon the nature of the order, rather than upon'the circumstances of the particular case. Under the decisions cited, there can be no doubt of the power of a court through subpoena duces tecum, or by a special order, to require one to produce testimony, or appear and be examined, or discover property. That is as far as the order in this case goes. Upon its face it is regular.- There is no reason why an executor should not' make disclosure of facts pertaining to .the administration of his trust; and, if non compos or dead, his personal representative should do the same, as was held in the case of Perrin v. Calhoun Circuit Judge, supra. There may be circumstances which will relieve these relators from the production of the books in question, but this is not the method, nor is it the forum, in which to raise the question. Hence we have no occasion to discuss or pass upon the many objections which are raised in the briefs of counsel. It is enough to say that orders of this kind are not appealable. Thus the right to appeal cannot depend upon the place where the books are, or where the representatives of the executor or the executor himself reside, or upon the jurisdiction that the Utah courts may have over either, or whether the proceedings in the probate court of Ottawa county were regular in all things, or whether the petition speaks truly, or the court’s conclusion was justified by the evidence, upon the relations of the various parties to this estate.

The writs are denied, with costs.

The other Justices concurred.


author: Montgomery, J.

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    KILBY MANUFACTURING CO. v. MENOMINEE CIRCUIT JUDGE.
    Mechanics’ Liens — Subcontractor — Liability of Contractor and Owner—Pleading—Amendment.
    Relator contracted to erect a factory, and subcontracted part of the work. The subcontractor brought suit to enforce a mechanics’ lien, alleging performance, and that a delay had been caused by relator and waived by it. Relator denied the waiver, alleging damages by the subcontractor’s delay, which were recoverable by the owner against relator, and asking that the owner be required to pay relator the balance after .paying the subcontractor’s claim as established. Held-, that relator was not a mere stakeholder, and was properly refused permission to amend by omitting the prayer for personal judgment against the owner because there were other matters of difference between him and the owner not ready for trial.
    Mandamus by the Kilby Manufacturing Company to compel John W. Stone, circuit judge of Menominee county, to permit an amendment to an answer to a bill of complaint.
    Submitted November 15, 1904.
    (Calendar No. 20,744.)
    Writ denied November 29, 1904.

      Qillett & Clark, for relator.

      Brown & Trudell (John L. Stoddard, of counsel), for respondent.
   Montgomery, J.

The relator, in Januáry, 1903, entered into a contract with the Menominee River Sugar Company, by the terms of which relator agreed to construct and equip completely a modern sugar plant, in accordance with plans and specifications given, for the price of $800,000. It was agreed that the building was to be completed ready for the making of sugar by October 1, 1903. On the 14th of March, 1903, the relator sublet a portion of the work of constructing the sugar factory to James H. Tennant, under the name of Bay City Stone Company. The factory was not completed on time. In April, 1904, the subcontractor, Tennant, filed a bill in chancery to enforce a lien for a balance of $21,682.81, claimed to be due him. This bill alleged that complainant had performed the contract between himself and relator fully, that the delay in completion was owing to relator’s acts and neglect, and that the relator had waived the delay. The relator and the Menominee River Sugar Company were made defendants. Several answers were filed. The Menominee River Sugar Company denied that the contract had - been completed according to its terms, either as to time or manner, but wás unable to answer whether, as between relator and complainant, the former had waived the latter’s defaults. The sugar company expressly disclaimed the purpose of recouping in this proceeding the claim which it had against the relator. The answer of the relator made in the first instance denied performance by Tennant, denied the waiver averred, and alleged that damages had resulted from Tennant’s failure to perform his contract; stating, however, that the damages were not believed to be as great as the sugar company claimed', but that they were such as the sugar company would be entitled to as against the Kilby Company. The answer asked affirmative relief, and that the sugar company be required to pay over to the Kilby Company the balance due after paying the Tennant claim as established.

Later an application was made by relator to amend this answer by making more specific some of the allegations and by omitting the prayer for a personal decree against the sugar company, for the reason, as stated, that the mutual rights of the Kilby Company and the sugar company were not ripe for settlement or litigation except as concerned the construction of the buildings themselves and the performance of Tennant’s contract. This amendment was not permitted by the circuit judge, and the relator asks mandamus to compel the entry of an order permitting such amendment. On the hearing of the application it was admitted (as is, indeed, implied in the proposed answer itself) that there were other matters of difference between the parties defendant over and beyond those which related to the performance of the contract between the complainant and the Kilby Manufacturing Company.

The circuit judge refused the amendment on two grounds:

First. That while, under section 10710, 3 Comp. Laws, the sugar company might have entered into a recoupment, yet the authority to do so, given by this statute, was permissive, and that the company might elect to reserve its action against the Kilby Company.

Second. That, inasmuch as the record showed other matters of dispute between the parties, it would result in requiring the sugar company to split up its cause of action if it be forced to enter upon recoupment in this case, confining such recoupment to such damages only as it sustained by Tennant’s default on his contract.

The relator’s contention made before us is that in this controversy the relator stands in the position of a middleman, with no interest except to see that his accounts with the other two parties should be settled on the same basis. This position is, to our minds, unsound. There is no privity between Tennant and the sugar company which would entitle the latter to maintain a suit at law against the former. If it should transpire that the damages recoverable by relator in an action against Tennant correspond precisely with the damages which the sugar company suffered on that branch of its contract with the relator, such correspondence would be a mere coincidence, for the result would be reached on a different issue; i. e., Did Tennant perform his contract with the relator to the latter’s acceptance ? rather than the issue, Did the relator perform his contract with the sugar company ? So far from the' relator being the stakeholder here, the exact reverse is true. The sugar company occupies that position. It is, of course, open to relator to contest Tennant’s claim in this proceeding.

As the conclusion which we reach is that the amended answer would not have availed to effect the attempted change of the relations of the parties, it follows that a writ of mandamus should not be granted. We do not consider the question of our jurisdiction to determine this question on application for mandamus, as to which question see St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417; Grand Rapids, etc., R. Co. v. Charlevoix Circuit Judge, 133 Mich. 122.

The other Justices concurred.


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    HUGHES v. LOVE.
    Partnership — Accounting—Decree — Construction — Market Value.
    Where, on a bill for partnership accounting, the cause is referred to a commissioner to state the account, with directions to charge defendant with the amounts received by him from the sale of certain timber if it can be ascertained from defendant’s books, and, if not, then with the market value, and to credit defendant with the original cost of the timber, the expense of manufacturing and selling the same, with interest on money advanced by defendant, defendant is chargeable with what he received at retail, and is not entitled to have the same charged at its wholesale market value.
    Appeal from Mecosta; Palmer, J.
    Submitted November 15,1904.
    (Docket No. 79.)
    Decided November 29, 1904.
    Bill by Fred W. Hughes against William Love for a partnership accounting. From a decree settling the account, defendant appeals.
    Affirmed.

      Mark Norris and Albert Crane, for complainant.

      jR. A. & W. E. Hawley, for defendant.
   Moore, C. J.

This case has been here before. It is reported in 129 Mich. 145. A reference to the opinion there filed will aid in understanding the questions involved here. After the case was affirmed here, an accounting was had before a circuit court commissioner, who found there was due the complainant $4,112.70. Exceptions were taken to the findings of the commissioner, and a hearing was had before the circuit judge, who sustained the findings. The case is brought here by appeal.

Most of the questions involved are questions of fact, which have required an examination of the record, but do not call for discussion. One question, however, is an important one, and its disposition will necessarily dispose of many of the others. It grows out of what construction should be put upon the decree which was affirmed by this court when the case was here before.

The claim of counsel for defendant is clearly stated in his brief, as follows:

‘ ‘ The decree in this case provides, in reference to the manner of stating the account, as follows:

‘ ‘ ‘ That this cause he referred to Alton W. Bennett, Esq., one of the commissioners of this court, to take and state the account between the parties hereto touching the transaction aforesaid; that in stating said account the commissioner charge the said defendant with the amounts received by him from the sale of said timber, lumber, bark> and other forest products, if the same can be ascertained from defendant’s books, and, if not, then with the market value thereof; that the commissioner credit the defendant the original cost of said timber, etc., and the expense of cutting, logging, hauling, manufacturing, and selling the same, with interest on the money advanced by defendant, at six per cent, per annum; that defendant also be credited with the loss in closing out his Portland store, not exceeding $300 in all for that item.’

“It will be observed that the decree provides that the defendant be charged with the amounts received by him from the sale of said timber, etc., if the same can be ascertained from defendant’s books, and, if not, then with the market value thereof. Upon the hearing we urged that under this decree the defendant was to be charged with the amount received by him from the sale of the Robbins timber; that he was not to be charged, under this decree, with moneys received from the sale of some other timber. It is obviously the meaning of the decree, and any other decree would be a most unjust and oppressive confiscation of property. This amount was to be determined, if it could be, from defendant’s books. It was to be determined by tracing the timber derived from the Robbins land by the aid of defendant’s books, and ascertaining how much the defendant received for this particular timber. By the aid of defendant’s camp books it is easily and readily ascertained how much he received for a considerable portion of this timber product, to wit, wood, bark, posts, poles, and railroad ties, and a portion of the lumber, for the reason that the books show to whom it was sold, and for what price, and how much was paid; but, so far as a large portion of. the lumber and the shingles were concerned, it was practically impossible to ascertain how much was sold and how much w;as salable, or when the same was sold, or what amount was received therefor. Under those circumstances we urge that what the complainant is entitled under the decree to receive for such lumber and shingles is the market value thereof. The question, therefore, arises what was the market value thereof, and how can the same be ascertained ? We contend that the term ‘market value’ should, under the circumstances of this case, be construed to mean the value of this material at wholesale at Millbrook.”

It was the idea of the commissioner that, as he was unable to ascertain from the books of the defendant the amounts received by him for the various forest products, he should be charged with the average retail price at the Portland yard, and credited with the original cost of the timber and the expenses for preparing the same for market and the cost of selling the products manufactured therefrom. Which of these constructions is the right one? A portion of the decree which was affirmed in this court reads as follows:

“ The defendant has cut, removed, and disposed of or appropriated to his own use, and sold through his own lumber yard at Portland, Michigan, all of the timber, lumber, bark, and other forest products taken and manufactured from the lands aforesaid, and received the proceeds thereof; but, although thereto requested, has refused to account to complainant for his share of said proceeds. Therefore it is further ordered, adjudged, and decreed that this cause be referred to Alton W. Bennett, Esq., one of the commissioners of this court, to take and state the account between the parties hereto touching the transaction aforesaid; that in stating said account the commissioner charge the said defendant with the amounts received by him from the sale of said timber, lumber, bark, and other forest products, if the same can be ascertained from the defendant’s books, and, if not, then with the market value thereof; that the commissioner credit the defendant with the original cost of said timber, etc., and the expense of cutting, logging, hauling, manufacturing, and selling the same, with interest on the money advanced by defendant at 6 per cent, per annum; that defendant also be credited with the loss in closing out his Portland store, not exceeding $300 in all for that item.”

This language is not ambiguous, but clearly contemplates that defendant shall be charged with what he received at retail for these products, and shall be credited with the cost of the timber and the expenses incurred by him in its manufacture and sale. We are of the opinion the commissioner and the circuit judge put a right construction on the language of the decree.

The decree is affirmed, with costs.

The other Justices concurred.


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    RAUSCH v. BRIEFER.
    1. Ejectment—Defenses—Equitable Title. The defense of equitable title is not available in ejectment.
    2. Judgments—Res Judicata—Matters Concluded.
    Where defendant in ejectment files a bill to enjoin the suit at law on the ground of equitable title, and is defeated on the merits, he cannot again raise the question in the suit in ejectment.
    3. Ejectment—Right of Possession—Lease—Estoppel.
    Defendant in ejectment cannot claim a right of possession under a life lease, where his plea and evidence are that he repudiated it, claiming the agreement was for a deed, returned it, and never recognized its validity during his occupation.
    Error to Macomb; Tappan, J., presiding.
    Submitted November 16, 1904.
    (Docket No. 93.)
    Decided November 29, 1904.
    Ejectment by Christian Rausch against Charles Briefer and Sarah Briefer. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.
    This is an action of ejectment. After suit was commenced, defendant Charles Briefer filed a bill in equity to enjoin the prosecution of the suit at law. It is conceded that the legal title is in plaintiff. Defendant’s father died • in 1854, and his widow afterwards married the plaintiff. Plaintiff afterwards, in 1855, purchased the land, paying the full value thereof. Defendant’s claim in the chancery suit was, and now is, that his father had contracted with the former owner for the purchase of the land; that he paid a part of the purchase price; that plaintiff, after his marriage, fraudulently obtained the benefit of that contract ; and that in equity the land belongs to the defendant. Issue was duly joined in the chancery suit, the case tried upon the merits, and the bill dismissed; the court holding that there was no foundation for the defendant’s claim. After the termination of the chancery suit default of defendant for want of plea was entered, and judgment rendered thereon. A new trial was granted, in which judgment was rendered for the plaintiff.
    Defendant’s father died before defendant was born, and he lived with, and was brought up by, the plaintiff, as one of the family, until he was 21 years of age. The land purchased by plaintiff was 40 acres. After defendant’s marriage he was permitted to occupy 20 acres of the land. By the assistance of plaintiff, a log house was moved on it, some small buildings built, and defendant has occupied and cultivated it since that time. The buildings were moved on and erected with the assistance of the plaintiff. After defendant claimed to have learned about the land contract which his father had made, plaintiff executed to him a life lease of the 20 acres, which was signed by both the plaintiff and the defendant. Defendant claims that he thought it was a deed; that he could not read, and that the instrument was read to him; that on reaching home his wife read the instrument to him. He then said he did not want that; he wanted a deed. He testified that he thereupon took the lease back to the plaintiff’s home, that plaintiff was not at home, and that he left it with his mother. He testified that he refused to accept it. Nothing further was done for some years, when defendant, asserting ownership of the land, began to commit waste. Plaintiff thereupon brought this action. Defendant, in his plea, alleged that when the lease was executed plaintiff informed him that it was a deed; that he could not read; that he procured it to be read to him, and thereupon returned it to the plaintiff.
    An examination of the plea and notice, which are not printed in the record, discloses that after his default was set aside and he obtained permission to amend his plea he amended it by giving notice (1) that an agreement had been entered into between himself and the plaintiff that in consideration of and satisfaction for certain work and labor done by him for the plaintiff, plaintiff agreed to convey to him the land; (2) that plaintiff fraudulently obtained title in the manner above set forth; and (3) that he had acquired title by adverse possession.

      S. F. Griffiths, for appellants.
    O. C. Lungerhausen and Byron B. ErsJcine, for appellee.
   Grant, J.

{after stating the facts). There are two complete answers to defendant’s right to assert an equitable title: First. Such defense is not available in a suit at law. Harrett v. Kinney, 44 Mich. 457. Second. That question was litigated, and determined against defendant, in the chancery suit. It is therefore res adjudicata.

Under defendant’s plea and testimony he had made neither a lease nor a contract for a lease. He asserted an agreement or promise for a deed. As soon as he ascertained that it was a lease, he repudiated it, returned it, never occupied the land under it, and never recognized its validity. He asserted a possession hostile to the lease and to any title of plaintiff. If he had accepted and recognized the lease, it would have been a bar to his assertion of any other interest in the land. The declaration and the plea put the lease out of the case. Paige v. Willet, 38 N. Y. 31; Van Dyke v. Maguire, 57 N. Y. 431; 1 Am. & Eng. Enc. Law (2d Ed.), p. 719; 11 Am. & Eng. Enc. Law (2d Ed.), p. 447.

The court correctly instructed the jury that:

“His own evidence is to the effect that he wholly repudiated the instrument, and I instruct you, as a matter of law, under the evidence in this case, he could not claim right to possession thereunder at the time of the •commencement of this suit.”

Judgment affirmed.

The other Justices concurred.


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    ATTORNEY GENERAL, ex rel. REECE, v. SHEKELL.
    .Municipal Corporations—Officers—City Attorney—Appointment—Term—Jaokson City Charter.
    Under Jackson City Charter of 1903 (Act No. 523, Local Acts 1903, tit. 4, § 5), the term of office of the city attorney appointed May 18, 1903, expired on the first Monday in May, 1904, and he was not entitled to hold office under such appointment for two years.
    Quo warranto by Charles A. Blair, attorney general, on the relation of Albert O. Reece, against John E. Shekell to try title to the office of city attorney for the city of Jackson.
    Submitted November 17, 1904.
    (Docket No. 276.)
    Judgment for respondent November 29, 1904.

      John W. Miner, for relator.

      Wilson & Cobb, for respondent.
   Moore, C. J.

This is* a quo warranto proceeding to determine the title to the office of city attorney of the city of Jackson. On the 18th day of May, 1903, relator was appointed to the office by the mayor, which appointment was confirmed by the common council, as required by the charter of said city, which fixed the term of said appointment at two years. Relator entered upon the performance of the duties of the office, and continued to perform them until on or about the 7th day of June, A. D. 1904. At the 1903 session of the legislature a new charter for the city of Jackson was passed, in which the term of the office of city attorney was fixed at one year. On June 6, 1904, the mayor, relying upon the provision of the new charter, appointed the respondent to said office, which appointment was duly confirmed by the common council, and the respondent is now performing the duties of the office. No charges were at any time preferred against the relator, nor was any attempt ever made to remove him, except as stated above.

Relator contends that by virtue of the provisions of the old charter of said city (section 16, chap. 5, Act No. 376, Local Acts 1897) he was appointed to the office for the term of two years, and that, in the absence of an expression of the legislature of its intention to accomplish such a result, relator’s term of office cannot be abolished, or in any way interfered with, except by preferring charges and his removal from office, and that relator cannot be removed or his term shortened merely by implication.

Section 16 reads:

“ The city attorney shall be appointed by the mayor by and with the consent of the common council, shall hold his office for the term of two years, and in addition to the other duties prescribed in this act, shall be the legal advisor of the council and of all officers of the city, and shall act as the attorney and solicitor for the corporation in all legal proceedings in which the corporation is interested; he shall prosecute for offenses against the ordinances of the city,, and shall attend the meetings of the common council and board of public works when required.”

It is conceded the legislature has the power to abolish, cut down, abridge, limit, or extend the term of office of an office created by the legislature when not within any constitutional prohibition, but it is said it would lead to unlimited difficulty and confusion if such changes could be brought about by uncertain language used in legislative enactments, or by placing such construction upon an act of the legislature as is arrived at by implication or inference from the terms and language, and not from the unequivocal intent of the act itself.

The important question, then, is, Did the legislature, by the adoption of the new charter, indicate its intention to shorten the term for which relator was appointed ? The new charter was signed June 10, 1903, and given immediate effect. See Act No. 533, Local Acts 1903. Section 5, tit. 4, reads as follows:

“ The mayor and city attorney shall hold their offices for the term of one year from and including the first Monday in May of the year when chosen and until their successors are elected or appointed and qualified and enter upon the duties of their respective offices: Provided, that the first appointment for city attorney hereunder, shall be made on the first Monday in May of the year nineteen hundred four, and that the appointment of city attorney before said date shall be made in accordance with the provisions of section sixteen of chapter five of the charter of the city of Jackson, as amended by Act number three hundred seventy six of the Local Acts of the State of Michigan for the year eighteen hundred ninety seven.”

It is claimed by relator that the latter part of this section indicates an intention either to continue him in office for the full term for which he was appointed, or is so ambiguous that it cannot be said to indicate an intention to shorten his term of office. It is also urged that the provision for the first appointment on the first Monday in May, 1904, is a clerical error, and should have read the first Monday in May, 1905. It must be confessed that, taking all the provisions of the section, they are not as clear as one could wish. We may take notice that the bill which finally became Act No. 523 was introduced into the legislature before the relator was elected to the office of city attorney. At that time it was not- known whether the bill would become a law before the appointment of a city attorney in the spring of 1903, and it was doubtless to provide for that contingency that the latter portion of the section was framed as it is. While it provides that any appointment made before the first Monday in May, 1904, shall be made in accordance with the provisions of the old charter, there is nothing to indicate the intention of the legislature to have it continue for the term fixed in the old charter. Indeed, the language of the section is inconsistent with that idea, for it in express terms provides 4 4 that the first appointment for city attorney hereunder shall be made on the first Monday in May, 1904.” This left the term of the relator a one-year term, and all of his successors under the terms of the new charter were to be elected to one-year terms. This had the effect of having the terms of the mayor and of the city attorney commence and end at the same time. We do not think we would be warranted in saying the legislature intended the first appointment under the new charter to be made the first Monday in May, 1905, when they have clearly expressed their intention to have it occur the first Monday in May, 1904. We think the respondent was legally appointed.

The prayer for judgment of ouster is denied.

The other Justices concurred.


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    PEOPLE v. MINER.
    Rape—Evidence—Testimony at Examination—Use at Trial. Where prosecutrix in rape is not constant in her accusation of respondent, her stepfather, and claims at the trial that her testimony at the examination was false, her deposition there taken is admissible only for the purpose of impeachment, and not as substantive evidence of respondent’s guilt.
    Error to Benzie; Chittenden, J.
    Submitted November 17, 1904.
    (Docket No. 294.)
    Decided November 29, 1904.
    George B. Miner was convicted of statutory rape and sentenced to imprisonment in the State prison at Jackson for a period of not less than, five nor more than twenty years.
    Reversed.

      D. 6r. F. Warner, for appellant.

      M. F. Louisell, Prosecuting Attorney, for the people.
   Grant, J.

Respondent was convicted, under 3 Comp. Laws, § 11489, of rape upon a girl 13 years of age. She is his stepdaughter. The girl was prosecutrix, and made the complaint upon which he was arrested and examined before a magistrate. Upon that examination she detailed the time, place, and circumstances of the crime. He was held for trial before the circuit court. Upon trial in the circuit court the prosecutrix, when produced as a witness on behalf of the people, denied that the prisoner had ever had sexual intercourse with her. The people then introduced her deposition taken before the examining magistrate. The claim of the people is that the girl’s mother and the prisoner brought undue influence upon her to induce her to testify falsely, in order to acquit the prisoner.

Under the instructions of the circuit judge, the jury were permitted to convict the prisoner upon the testimony of the prosecutrix taken before the examining magistrate, if they believed it to be true, notwithstanding she denied its truthfulness upon the trial. The court distinctly said to the jury:

• “If you believe the story told here on this witness stand is true, your verdict will be, ‘Not guilty;’ but, if you believe the story she told on the examination before the magistrate, then your verdict will be ‘Guilty.’ ”

This same question was before us in the case of People v. Elco, 131 Mich. 523, in which the majority of the court held that, where a witness whom the people were bound to produce had made prior statements contradictory to those made upon the trial, such prior statements could be introduced to impeach her testimony. The respondent was entitled to have the witnesses against him produced in open court. The people could not introduce the prosecutrix’s deposition taken upon the examination, where the prosecutrix herself could be produced upon the trial. We are cited to no case which has gone further than to hold that prior statements can be introduced for the purpose of impeachment. No case holds that they be considered by the jury as substantive evidence of the commission of the crime charged. The case is ruled by People v. Elco.

The crime charged is one of the most heinous and revolting known to the law. If the sole evidence is that of the alleged victim, and she has asserted under oath the commission of an offense, and afterwards denied it under oath, and there is no other evidence pointing to guilt, it would seem that neither law nor justice would permit a conviction.

Without reciting them, we may say that there are other evidences in this record tending to show the guilt of the respondent.

Conviction reversed, and new trial ordered.

The other Justices concurred.


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      In re OWEN’S ESTATE.
    "Wills—Legacies—Estate Charged With Payment.
    Where a will devises all testatrix’s real property to her daughter, and bequeathed to her all her mortgages, notes, and other securities, “with the understanding that she shall pay” certain specific legacies out of her portion of the estate, the legacies are a charge upon the estate in general, including the real as well as the personal property.
    Error to St. Olair; Law, J.
    Submitted November 17, 1904.
    (Docket No. 108.)
    Decided November 29, 1904.
    Petition by Niram B. Sackett against Matilda J. Broad-bridge, executrix of the last will and testament of Matilda Owen, deceased, to compel the payment of certain legacies. The petition was granted in the probate court, and ■defendant appealed to the circuit court. There was judgment at the circuit affirming the order of the probate court, ;and defendant brings error.
    Affirmed.
    One Matilda Owen died testate. By the second clause ■of her will she bequeathed to Marcus D. Terry and her daughter, Matilda J., all her real estate, and an interest in boats and vessels. By the third clause she bequeathed to the same parties all her “ mortgages, notes, bonds, or ■other securities, * * * with the understanding that they shall pay to Burt Sackett the sum of five hundred dollars, and to Augusta Lenz the sum of one hundred ■dollars out of their portion of my estate.”
    By a codicil she revoked the provisions of her will to Terry, and made her daughter, Matilda, the sole legatee; charging her with the payments of the same amounts to Sackett and Lenz as were contained in the original will, and in the identical language, and $100 to her sister. The probate court entered an order that these legacies were a charge upon the estate in general, including the real property. The claim of the appellant is that these legacies are chargeable upon the personal estate only. On appeal the circuit, court affirmed the order of the probate court.

      Moore & Brown, for appellant.

      James Swan and Niram B. Sackett, for appellee.
   Grant, J.

(after stating the facts). The case is before us upon the record only, no bill of exceptions having been settled. There is no room for construction, for the intent of the testatrix too clearly appears within the four corners of the will. The will evidently makes disposition of all her property. She made certain specific bequests, and devised the residue (naming the real and personal property) to her daughter, charged with the payment of three specific sums to the persons named, not out of the notes, mortgages, etc., mentioned, but out of the entire portion of the estate devised to her. The language is wholly inappropriate to express an intention to make these three bequests a charge upon any specific portion of the. property devised.

Judgment affirmed.

The other Justices concurred.


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    VILLAGE OF ROYAL OAK v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Condemnation Proceedings—Crossing Railroad—Review.
    On review of proceedings to condemn land for a street across a railroad right of way, the fact that no allowance was made for keeping the crossing in repair will not be considered, in the absence of an exception to the verdict on that ground.

      Error to Oakland; Smith, J.
    Submitted November 17, 1904.
    (Docket No. 103.)
    Decided November 29, 1904.
    Condemnation proceedings by the village of Royal Oak against the Detroit, Grand Haven & Milwaukee Railway Company to open a street. There was judgment for petitioner, and respondent brings error.
    Affirmed.

      L. C. Stanley, for appellant.

      Fred A. Baker, for appellee.
   Grant, J.

This is a proceeding to open a street across the right of way of the respondent’s road in the village of Royal Oak, between Fourth street and Third street. The respondent contends that the proposed street crosses a part of its station grounds. The evidence does not bear out this contention.

The case is ruled, both in its facts and the conclusions to be deduced therefrom, by Cortirs of Parks and Boulevards of Detroit v. Railway Co., 93 Mich. 58.

It is also urged that the verdict should be set aside because the record shows indisputably that no allowance was made for keeping the crossing in repair, and that the jury awarded only the first cost of construction. No exception was taken to the verdict below upon this ground, and it cannot now be considered here.

Judgment affirmed.

The other Justices concurred.


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    DOUDT v. LOVERIDGE.
    Land Contract as Mortgage—Evidence.
    Evidence examined and held that the dismissal on the merits of a bill to have a land contract declared a mortgage was proper.

      Appeal from Branch; Yaple, J.
    Submitted November 18, 1904.
    (Docket No. 110.)
    Decided November 29, 1904.
    Bill by Addie Doudt and Louisa Doudt against Henry C. Loveridge and Jessie M. Loveridge to have a land contract declared a mortgage, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Charles M. Weaver, for complainants.

      Campbell & Johnson, for defendants.
   Hooker, J.

The complainants in this cause owned a farm and personal property in Branch county. Upon the farm was a mortgage of $400, owned by one Baldwin, with some accumulated interest.

They had managed this farm for some years, and were so engaged when, in August, 1897, they were arrested upon a charge of malicious injury to property. They employed counsel, giving him a mortgage of $500 upon the property to secure his payment and disbursements, which he claims was so applied, including payment to a firm of lawyers whom he was authorized to employ as associates. They also gave a chattel mortgage, the property covered by which was ultimately sold by the sheriff. Addie Doudt was ultimately convicted and imprisoned for a year and a half in the Detroit house of correction. Louisa Doudt was never convicted, being released from custody in September, 1898, something over a year after her arrest.

Counsel obtained from Addie a bill of sale to Louisa of her interest in the personal property. There was some litigation or threatened litigation with the sheriff, which counsel looked after, and $225 was ultimately realized from that source and applied on services, and a portion upon the $500 mortgage. H. C. Loveridge ultimately took assignments of both real-estate mortgages, and foreclosed them, bidding the premises in for $1,075.52 in September, 1900. The premises were not redeemed. Complainants appeared in the case by counsel, but are said to have been poor and unable to pay him, and were compelled to abandon their defense.

On May 29, 1901, they entered into a contract whereby they leased the land from Loveridge for one year at a rental of $75. At the same time he executed and delivered to them a writing wherein he agreed to sell and deed to them the premises at any time before February 1,1902, for $1,200 upon demand and payment according to its terms. After the expiration of this period and the lease, a demand was made for the possession, which being refused, summary proceedings were instituted, and thereupon the complainants filed the bill in this cause to have said last-mentioned agreement declared a lien, and for an accounting.

Upon the hearing the bill was dismissed. Our consideration of the testimony leads us to the same conclusion reached by the learned circuit judge. The question is wholly one of fact, and it would be profitless to discuss it further.

The decree is affirmed, with costs.

The other Justices concurred.


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    STEBBINS v. DEMOREST.
    ■ 1. Landlord and Tenant—Croppers—Rights.
    A cropper acquires only tlie right to make and harvest a crop and to enter for that purpose.
    2. Same—Lease—Rights op Lessor.
    After leasing premises, reserving the right to a cropper to enter to harvest a growing crop, the lessor has no right to permit the cropper to plow up the crop and sow another in its place, and if the cropper does so he is a trespasser.

      3. Same—Crop Made by Trespasser—Conversion—Trover.
    A crop made by a trespasser on leased land under authority of the lessor belongs to the lessee, and he may maintain trover
    against the cropper for its conversion.
    Error to Shiawassee; Smith J.
    Submitted November 18,1904.
    (Docket No. 117.)
    Decided November 29, 1904.
    Trover by John C. Stebbins against John Demorest fo.r the conversion of certain oats. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      A. G. Shepard, for appellant.

      Walsh & Pardee, for appellee.
   Hooker, J.

One Mrs. Murphy, being the owner of a farm, leased the same upon shares to plaintiff by an instrument in writing. This instrument was signed by both parties, and contained their respective agreements in relation to the use of the place, the furnishing of seed, division of crops, etc.; but it seems to have contained the essential elements of a lease, giving the right to exclusive possession, except as limited by the following provision:

“ And first party reserves the wheat fields now in wheat, from the operation of this lease until harvested, and the right to go on and harvest the same next season.”

Plaintiff took possession under the lease.

At the time the lease was made, the wheat fields mentioned had a growing crop upon them, sown by the defendant as a cropper, by authority of Mrs. Murphy. This wheat turned out poorly, and defendant, being of the opinion that portions of it were not worth harvesting, desired to sow oats upon the ground. He had conversations with Mrs. Murphy and the plaintiff. The former was in doubt regarding her right to authorize it, while the latter denied it and refused to allow the defendant to do so, and they were unable to come to any agreement about it. Defendant sowed the oats, however. Plaintiff testified that they were sown without his knowledge, and that he forbade defendant harvesting them. He did harvest them, however; doing the work and drawing them away upon Sunday, to avoid the service of any process to prevent it. Subsequently he drew one-third of the oats to Mrs. Murphy, as her share; that being the aliquot part of the wheat that was her due under the original cropping arrangement.

The plaintiff thereupon brought an action of trover for the conversion of the oats before a justice of the peace, and obtained a judgment, from which the defendant appealed. Upon the trial at circuit, the judge directed a verdict for the defendant, and the plaintiff brings error.

At the time of making the original contract for cropping, the defendant acquired only the right to sow and harvest wheat upon the premises. This gave him the necessary right of entrance for these purposes, and nothing more.

The subsequent lease gave to plaintiff all other rights of possession and use, and, when defendant entered and sowed and harvested oats, he was a trespasser, for he had no such right, and Mrs. Murphy’s consent, if given, does not affect the question. The fact that he sowed oats as a trespasser did not give him title to the crop.

Counsel for the defendant claims that the plaintiff had no right to the possession of the farm until the wheat was harvested, which he says was but a week or so before the oats were cut and drawn away. Our understanding is that the defendant was a cropper, with only the rights of a cropper, viz., to make and harvest a crop of wheat. He had no exclusive possession of the land, and no right to use the land for a spring crop when he found his wheat turning out poorly. The plaintiff was in full possession of the place after April 1st, subject to the obligation of permitting defendant to harvest his crop, which he permitted. As the growing crop of oats did not belong to the trespasser, it became the property of the owners of the premises—i. e., the lessee, plaintiff—who can maintain trover therefor.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    STEVENSON v. STERLING.
    Statute of Frauds—Agreement to Pat Employé’s Board.
    The statute of frauds has no application to a case where an employé, working for a stated salary and expenses, procured board on the credit of his employer, and it was understood by all parties that the employer was responsible for the board.
    Error to Montcalm; Davis, J.
    Submitted November 18, 1904.
    (Docket No. 121.)
    Decided November 30, 1904.
    Assumpsit by Hampton E. Stevenson against Lew Sterling for the amount of a board bill. From a judgment for plaintiff, defendant brings,error.'
    Affirmed.

      Frank A. Miller and V. H. & H. H. Smith, for appellant.

      L. O. Palmer, for appellee.
   Grant, J.

This suit was brought in justice’s court to recover $8.50, which plaintiff claimed to be due him from the defendant for a few days’ board for his employé named Hubbs. Plaintiff produced evidence tending to show that Hubbs was employed by the defendant for a stipulated sum and his traveling expenses; that Hubbs told the plaintiff of the arrangement, and also told defendant of the arrangement he had made to board with plaintiff when doing business at Stanton, where plaintiff lived and kept an hotel; that this arrangement was known and understood by the defendant; that defendant recognized his liability, and during Hubbs’ employment, thinking the price was too high, discontinued the board there, and procured board for Hubbs at another place. The defendant admitted a contract with Hubbs for employment, and that he was to pay expenses not exceeding a certain amount per week.

The case was submitted to the jury upon the theory of an original liability on the part of the defendant ■ to pay plaintiff for Hubbs’ board. Defendant denied any contract or arrangement with Stevenson whereby he was to pay it. The court submitted the case upon the theory that there was an arrangement between Sterling and Hubbs that Sterling was to pay Hubbs’ expenses; that he understood Hubbs’ board at the hotel was a part of that expense, and that the three parties understood that defendant was to pay for it.

The record contained 77 pages, and the briefs of counsel 53 pages. There are 49 assignments of error; some relating to the rulings upon testimony, some upon the charge of the court, and others upon the refusal to grant requests. No principles or rules of law are involved which are not familiar to the profession. It would be of no benefit to enter into a discussion of them. The court properly instructed the jury that the statute of frauds had no application, and, as above stated, left it to them to determine whether there was such an arrangement between the three as to constitute an original liability on the part of the defendant. There were no errors in the rulings of the court upon the testimony.

The judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    TOEPEL v. WAYNE CIRCUIT JUDGE.
    Contempt—Review—Certiorari—Mandamus.
    Mandamus or certiorari will not be granted to review the ruling on a motion to quash contempt proceedings prior to the final determination thereof.
    Mandamus by Otto T. Toepel to compel Joseph W. Donovan, circuit judge of Wayne county, to quash certain contempt proceedings.
    Submitted November 28, 1904.
    (Calendar No. 20,837½.)
    Writ denied November 30, 1904.

      Alex. J. Groesbeck and Edwin Henderson, for relator.
   Per Curiam.

Application for writ of mandamus or certiorari to review a motion to quash contempt proceedings. Denied for reason that these writs are not proper remedies at this stage of the proceedings. See following authorities: Palms v. Campau, 11 Mich. 109; Detroit, etc., R. Co. v. Backus, 48 Mich. 582; Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 572; People v. Thompson, 108 Mich. 583; 4 Enc. Pl. & Prac. 236. Also the following unreported memorandum cases: Detroit, etc., R. Co. v. Salliotte (19,972½), decided May 13, 1903, and In re Keenan (20,581½), decided June 16, 1904.