author: Steere, J. Ostrander, J.

text:
    DAVIS-FISHER CO. v. HALL.
    1. Brokers — Commissions—Contracts.
    The owner of real property, who, after giving to a broker the agency to sell his land on commission, interferes with a prospective buyer, cancels the broker’s authority, and, knowing that negotiations for a sale are under way, effects the sale of his property by abating his price, is liable to the broker for the agreed commission or compensation.

    2. Same — Vendor and Purchaser — Minimum Price.
    Where the owner of a house listed.it with plaintiff, a broker firm, and, meeting a prospective buyer to whom plaintiff had shown the realty on the previous day, informed the buyer that the firm had no authority to sell it and named a price which was less than plaintiff claimed he had fixed in his conversation with the firm, when it was claimed he had stated that he would allow plaintiff all it could obtain over $2,800 as its commission, a verdict for the commissions of the broker was warranted by the testimony.
    Ostrander and Bird, JJ., dissenting.
    Error to Calhoun; North, J.
    Submitted June 16, 1914.
    (Docket No. 74.)
    Decided October 2, 1914.
    Assumpsit by the Davis-Fisher Company against George L. Hall for broker’s commissions. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Howard W. Cavanagh, for appellant.

      Stewart & Jacobs, for appellee.

       The question of the effect upon the right to commission, of the fact that the owner sells to broker’s customer at reduced price is discussed in notes in 15 L. R. A. (N. S.) 272 and 34 L. R. A. (N. S.) 1050. And as to when real estate broker is considered as procuring cause of sale or exchange which will entitle him to commission, see note in 44 L. R. A. 321.

   Steere, J.

This action was begun in justice’s court and removed by appeal to the circuit court of .Calhoun county, where a retrial by jury resulted in a verdict and judgment for plaintiff in the sum of $50, being the amount of a commission found due for sale of a house and lot. Defendant was a contractor and builder residing in Battle Creek, Mich., engaged, in part at least, in building houses upon lots which he owned and selling the property thus improved. Plaintiff was a company or firm engaged in the business of selling real estate on commission in said city.

It is undisputed that some negotiations were had between the parties touching plaintiff’s making sale for defendant of the property in question. Plaintiff claimed and introduced testimony tending to show that, when the house was approaching completion, defendant first listed the property with plaintiff to sell on commission for $3,000; that some effort was made by the firm to sell the same at that "price, and it was shown to various parties without results, the difficulty being that the price was rather high; that later,' on being asked his lowest net cash price, defendant placed it at $2,800, plaintiff’s commission to consist of whatever could be obtained above that figure, and plaintiff, accepting the proposition, thereafter continued efforts to sell the property for $2,875.

Admitting that there was some talk with members of the firm in relation to the sale of this property, and that he had visited plaintiff’s office to talk about it, defendant denied that he ever listed the property with plaintiff or gave it any authority to sell the same for him, and testified as to the price given as follows:

“I told him (Davis) that I would give him until the next day at 6 o’clock to get me $2,800 net. I never heard from him again in regard to that, though he brought a man by the name of Veeder some time later; I cannot tell just when. He brought him there two different times; the first time I did not give him any encouragement, because he had no money, and the second time I told him I thought I had sold the property to a 'man by the name of Patterson.”

Members of the plaintiff firm testify and prove by others that they had at various times shown and offered the property to different parties up to the time it was sold by defendant to one Patterson, a prospective purchaser whom they first found and to whom they had shown the property, offering it to him for $2,875. Patterson was a baggageman on the Grand Trunk railway, and Davis, a member of the plaintiff company, learning he was thinking of buying a place, solicited him as a customer and took him, with his wife and daughter-in-law, in an automobile to look at property the firm had for sale, showing them this house and lot among others. Of what took place, Patterson testifies in part:

“I told him before I started $2,000 was as high as I would go for a place. * * * They gave me different prices for different property, $2,800, $2,500, $2,750 for another one. * * * The Davis-Fisher price (for this property) was $2,875. I made them no reply. * * * Mr. Davis said about this house that it was a very nice house, and he would recommend the contractor very highly, and that the house was well built, and he would be glad to.show me through it. I said I did no.t care to go through the house because it was above my price. * * * He done most of the talking, and my wife was with me and my daughter-in-law. * * * I told him if he had no objections I would look at these different places the next morning, and if I found anything that suited me, I would come back the next morning, and if not, there was nothing doing.”

This was on October 23d; the following day, October 24th, Patterson visited the property and there met defendant. The place apparently suited him, and there was something, “doing,” but he did not go back to plaintiff. He informed defendant that Mr. Davis had shown him the place, and was answered that no real estate firm had the property for sale; that defendant owned it and would sell it for $2,800. Patterson thereupon dealt with defendant and bought the property of him at that price. Being asked, “And you bought it because Mr. Hall represented to you that Davis-Fisher Company did not have it for sale?” he answered, “That is the idea exactly.”

After the sale was consummated, defendant denied that he had listed the property with plaintiff and refused to pay any commission. Plaintiff demanded a commission of $75 for having first found a prospective purchaser who was favorably disposed to the property and was examining it on plaintiff’s solicitation and offer, which had not been refused, when defendant interfered and consummated the sale himself.

In submitting the case to the jury, the court charged them that, if plaintiff had failed to show, by a preponderance of evidence, that the property was in its hands, listed for sale by defendant, there could be no recovery in any event, and, amongst other things, gave the following instructions, upon portions of which error is assigned:

_ “And I say to you along that line, if an owner places his property in the hands of a real estate broker for sale, it is the duty of the owner to deal honestly and fairly with the broker, and it is the right of the broker, on finding a prospective customer, to deal with such customer until a sale is made, or until the customer has refused to purchase, at least during a reasonable period of time; and if the owner voluntarily interferes with such sale, and induces the prospective purchaser to deal directly, with him, and by such interference and direct dealing the owner is able to sell to the customer whom the broker has interested in the property, then I charge you it becomes the duty of the owner to pay the agreed commission to the broker, and in that case if you find that the owner, Mr. Hall, knew that the plaintiff was negotiating with Mr. Patterson, and Mr. Hall voluntarily solicited Mr. Patterson to purchase the. property before the negotiations between Mr. Patterson and the plaintiff were broken off, and by such solicitations did sell the property to Mr. Patterson, then I charge you plaintiff should recover. If you find thé defendant placed the property in plaintiff’s hands for sale, and if the plaintiff is entitled to recover in this case, the measure of -recovery would be this: That the defendant should pay to it the ordinary amount paid for .commissions for such sales. -The testimony in this case being that they varied from 2% to 3 per cent, of the purchase price, bearing in mind that the amount awarded cannot exceed the sum of $75, because under plaintiff’s own statement of this case, had it been enabled to consummate this deal with its prospective customer, its profit would only have been $75, therefore, under the circumstances, it cannot recover more than that.”

It is well settled, by abundant authority in this State and elsewhere, that when a real estate owner, who has given to a broker an agency to sell lands on commission, with knowledge that such broker has found and is negotiating for a sale with a prospective purchaser, steps in, cancels the broker’s authority, and himself effects a sale to the broker’s customer by an abatement of the price, the broker is entitled to his commission. Heaton v. Edwards, 90 Mich. 500 (51 N. W. 544); McGovern v. Bennett, 146 Mich. 558 (109 N. W. 1055); Glascock v. Vanfleet, 100 Tenn. 603 (46 S. W. 449). Many authorities on the subject of the effect of a principal’s default, negligence, or fraud on a broker’s commission are collected in the annotation of Brackenridge v. Claridge & Payne (Tex.), found in 43 L. R. A. 593. The spirit and reason of this doctrine is well sustained by the cases cited under “Principal’s Interference with Broker,” on page 606 of 43 L. R. A.

The jury found as a fact in this case, with abundance of testimony to support the finding, that defendant did list the property with plaintiff for sale. If so, and it must be taken as true in considering further questions, he deceived Patterson, plaintiff’s prospective customer, and through falsehood induced him to deal with himself by stating that he sold his own property, that the house and lot belonged to him, and no real estate firm had it for sale, knowing at the same time that Patterson’s then presence on the premises was the result of Davis’ having shown and offered to sell him the place.

Defendant contends that, by the alleged terms of its agency, plaintiff’s right to a commission depended squarely upon its ability to sell the property for a greater sum than $2,800, which it failed to do, and no right could arise from the fact that defendant subsequently sold it for a less price than plaintiff offered it, to the party with whom plaintiff had unsuccessfully negotiated — citing Gilmore v. Bolio, 165 Mich. 633 (131 N. W. 105, 34 L. R. A. [N. S.] 1050); Wood v. Smith, 162 Mich. 334 (127 N. W. 277.) In the latter case the question involved was whether a broker was the procuring causé of sale, and it was held under the testimony to be a question of fact properly submitted to the jury. It is undisputed in this case that plaintiff cannot recover unless it is shown to be the procuring cause of the sale. In Gilmore v. Bolio, supra, the facts more closely resemble those in the instant case, with the marked distinction that the deal was off, and all negotiations between the broker and prospective purchaser had ended by a refusal of the latter to buy the property on the terms proposed. Six weeks later he bought it of the owner for a less price. No interference of the principal with pending negotiations of a broker, was involved there, which is the gist of this case.

It is urged that no customer is shown to have been. . produced willing to pay more than $2,800 for the property; that Patterson did not negotiate with Davis for this property, but, on the other hand, in effect refused it, saying nothing in reply to Davis’ laudation of it, except that $2,875 was above his price, and therefore a verdict should have been directed for defendant on the ground that plaintiff had not made a primet facie case by its proofs. Error is also assigned on refusal of the court to allow Patterson to answer questions as to his intent, and whether he would have paid more than $2,800 for the property, a contingency which he never was called upon to decide, owing to defendant’s interference.

Is defendant in a position to say that plaintiff would not have made the sale? It is undisputed that Davis, for plaintiff, first secured Patterson as a possible customer who had intimated a desire to purchase a house and lot, and took him with members of his family to look at places plaintiff had for sale; that, amongst others, he drew their attention to this property and urged its desirability, stating the price asked for it. Patterson discreetly looked and listened and said little or nothing as to this or any other property, so far as shown. It was but a natural initiation of negotiations. He guardedly stated that the next morning he would look over the properties which had been pointed out for sale, and, if he found anything to suit him, would pursue the subject. That he was then favorably impressed with this property and, knowing the price asked, went back to look it over, was suited with it, and bought it of the owner at the price he first asked, which was but $75 less than that asked by plaintiff, is at least evidence for a jury that plaintiff was not only the moving cause of the subsequent sale made by defendant, but that it had so interested Patterson in the property, when showing it to him, that he was yet a promising prospective purchaser, who not only had not refused plaintiff’s offer, but with whom it might well pursue negotiations with fair prospects of success, but for the fact that on the very next morning defendant, meeting him for the first time, and learning that he was examining the property at the instance of plaintiff, cut off further negotiations with it and all possibility of its effecting a sale by denying its agency, reducing the price, and inducing the customer to deal with him. Under such circumstances, when it is found as a fact that defendant had listed the property with plaintiff, we do not think it reversible error to exclude the then unexpressed and untested thought or intent of the purchaser as to a future contingency rendered impossible by defendant’s conduct, nor is defendant’s claim that the sale could not have been consummated by plaintiff, of conclusive force because, conceding defendant had listed the property with the broker, he is seeking by such claim to take advantage of his own wrong and interpose his own bad faith in his defense. There was abundant evidence to support plaintiff’s claim that it was the moving cause of the sale made, and that defendant wrongfully interfered with and broke up plaintiff’s pending negotiations with a prospective customer, and made the sale himself, thereby becoming liable to plaintiff for its commission. The case was one for a jury, and was submitted under proper instructions.

Upon the record, taken as a wnole, we find no reversible error, and are of the opinion the judgment should be affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, and Moore, JJ., concurred with Steere, J.

Ostrander, J.

(dissenting). In my opinion, my Brother Steere has not answered the contention of appellant that there is no testimony tending to prove that plaintiff could have sold the property to Patterson or to anybody for more than $2,800. Unless it made a sale for a greater sum, plaintiff was not entitled to a commission. Plaintiff had no exclusive right to sell the property. It knew the owner’s price and that it or any one could secure the property from the owner, at any time, for $2,800. A jury has awarded plaintiff a commission of $50, but upon no testimony that plaintiff might have sold the property to Patterson for $2,850. The testimony just as well sustains an award of $75, or of $25, or of $5. It is evident the jury thought defendant had acted rather meanly, and that he ought to pay something on account of his behavior. But plaintiff sued to recover a commission, which, because of defendant’s improper action, it had lost..

The judgment should be reversed, and no new trial granted.

Bird, J., concurred with Ostrander, J.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    REIS v. APPLEBAUM.
    Fraud — Equity—Adequate Remedy at Law.
    A bill for a money judgment, based solely on averments of fraud, is demurrable on tbe ground' that tbe complainant bas an adequate remedy at law.
    Appeal from Saginaw; Gage, J.
    Submitted June 22, 1914.
    (Docket No. 48.)
    Decided October 2, 1914.
    Bill by Joseph Reis and others against Isaac Applebaum and others for fraudulent misrepresentations. From an order sustaining a demurrer to the bill of complaint, complainants appeal.
    Affirmed.

      Henry E. Naegely and E. A. Snow, for complainants.

      Alex J. Groesbeck, for defendants.
   Kuhn, J.

This is an appeal from an order sustaining the demurrer of several of the defendants herein. The allegations of the bill of complaint are fully set forth in the opinion of this court in the case of Reis v. Applebaum, reported in 170 Mich. 506 (136 N. W. 393). The grounds for demurrer are as follows:

(1) The complainants are. not judgment creditors of either or any of the defendants and therefore are not entitled to maintain their bill of complaint.

(2) The complainants have not, in and by their bill of complaint, stated such a case as entitled them to any relief at the hands of a court of equity.

(3) Under the laws of this State, hnd particularly chapter 269 of the Compiled Laws of 1897, this court has no jurisdiction of the matters contained in said bill.

(4) The bill of complaint states no legal or equitable cause of action against these defendants, shows upon its face that the complainants have no' claims of any nature against these defendants, and is purely vexatious in character.

(5) Under the laws of this State a court of equity has no jurisdiction of the facts and circumstances set forth in the bill of complaint.

An examination óf the bill of complaint dis'closes that the allegations of fraud relied upon are based on the charge that the articles of association set .forth that there were $100,000 paid into the. company at the time the same was incorporated, whereas in fact said statement was false, untrue, and fraudulent, and that this claimed fraud was known to the defendants, and one of them, defendant Applebaum, purchased the railroad at a foreclosure sale. It seems that when this charge was made in the bill the complainants were laboring under a misapprehension of the facts, as the articles of association which are made a part of the bill show that the capital stock of the company was $1,000,000, 10,000 shares of $100 each, and that the road was to be constructed from the city of Saginaw to the city of Flint and to the village of Vassar, in the county of Tuscola, the length of the line to be 45 miles. An affidavit attached to the articles of association in accordance with section 6396, 2 Comp. Laws, states that stock to the amount of $1,000 per mile of the railway has in good faith been subscribed, and that 10 per cent, thereof has been paid as required by law. Thus it would appear that all that was paid in at the time of organization, as set forth in the articles, was $4,500, instead of $100,000 as claimed by the complainants.

It is now contended, however, that as the bill states that no money whatever was actually paid in, it makes no difference, so far as the fraud is concerned, whether the amount was $4,500 or $100,000. There is some question whether the language of the bill is specific enough to warrant this interpretation, but to our minds it is immaterial, because the important question is whether the general charge of fraud upon which complainants rely is sufficient to give the equity court jurisdiction. The specific relief prayed for, which in effect asks for the entry of a money judgment, is as follows:

“That the legal liability and responsibility for the issuance and payment to the complainants of the several amounts of money represented by the bonds aforesaid of complainant may be aided, established, and decreed against the said defendants and in favor of the said complainants, and that said defendants may be required by an order of the court to pay to the complainants the several said sums of money according to the tenor and effect as provided for in the bonds aforesaid of said complainants.”

The learned trial judge in sustaining the demurrer was of the opinion that “fraud alone is not a sufficient ground for a court of equity in this State to assume jurisdiction,” and in this conclusion he is sustained by the recent decisions of this court.- A clear statement of the rule applicable is found in the opinion of this court in Laubengayer v. Rohde, 167 Mich. 605, on page 610 (133 N. W. 535), where Justice Steere, speaking for the court, said:

“The most serious ground of demurrer urged is that complainant has an adequate remedy at law, which precludes jurisdiction in equity. That courts of law and equity have concurrent jurisdiction in cases of fraud is well settled, and it is also well settled in this State that a suit may be planted on the chancery side of the court where complainant is shown entitled to relief especially equitable. The question has been before this court in numerous cases, and thoroughly discussed. A comprehensive review of many of the decisions is to be found in Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036). In Detroit Trust Co. v. Old National Bank, 155 Mich. 61 (118 N. W. 729), it is said:
“ ‘In this State equity has not taken jurisdiction of cases where a suitor has a full, complete, and adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity-’
“It was further pointed out in that case, as reasons for sustaining'a demurrer, that the allegations in the bill did not show need of an injunction, or of a discovery, or of an accounting, or of specific performance, or the reformation or cancellation of a written instrument, and there was nothing to indicate that a judgment against defendants would not be perfectly good.
“In the-case at bar there is no claim -that defendants are financially irresponsible, or a judgment against them doubtful; according to the scheme of complainant’s bill, all he seeks and all he is entitled to in the end is a money judgment for the damages he has sustained.”

In additidn to cases cited in this opinion, see Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209); Berger v. Roe, 179 Mich. 184 (146 N. W. 200); Levitan v. Houghton National Bank, 182 Mich. 30, (148 N. W. 388). The order sustaining the demurrer is affirmed, with costs.

McAlvay, O. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    KOSKELL v. NEWPORT MINING CO.
    1. Master and Servant — Mines and Mining — Trammers — Fellow-Servants.
    Trammers in a mine who with the miners prepare a part of the drift or other portion of the mine, which has been newly blasted, for the timbermen to place supports, are fellow-servants with miners, all being engaged in creating or constructing a safé place to work; so that neglect of the miners to properly sound and bar down the unsafe rock was the act 'of fellow-servants of. a trammer who was engaged in work in an untimbered portion of the drift.

    2. Same — Assumption of Risk.
    Upon plaintiff’s testimony that the miners did not trim down or sound the place at all, he must be held to have known and assumed the risk of the failure to perform that duty, although one of the miners' assured him that the-place was safe.

      Error to Gogebic; Cooper, J.
    Submitted June 10, 1914.
    (Docket No. 57.)
    Decided October 2, 1914.
    Case by Edward Koskell against the Newport Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      C. W. Westerman (Chas. F. Fawsett, of counsel), for appellee.

       As to the liability. for injury to employees in mine through negligence of fellow-servant, see notes in 50 L. R. A. 437 and 461.

       On the question of the servant’s assumption of risk from changing condition of excavations in mine during progress of the work, see note in 19 L. R. A. (N. S.) 352.
      For the liability of the master for injuries duse to dangerous condition of eartb and rock left after blasting, see note in 48 L. R. A. (N. S.) 1123.

   Kuhn, J.

The plaintiff has appealed from a verdict directed for the defendant by the trial judge. At the time of his injury he was working for the defendant company as a trammer, and had been engaged in this employment for a period of three months. The accident occurred in the main east drift of the seventeenth level, about 1,000 feet easterly from the shaft, and was caused by the fall of about a ton of what the miners call “slip ore” from the side of the drift, about three feet in toward the breast from the then most easterly set of timbers. On the day of the accident, about 12 o’clock midnight, a blast took place, and at 1 o’clock the miners and trammers went back to work. The trammers went about cleaning up the track, working Under the timbers, and while they were doing this the miners Johnson and Trasti examined the untimbered place. Upon receiving an assurance from Johnson that the place was safe, the plaintiff went into the untimbered place and started to shovel ore, and worked there until 4:80 a. m., when his injury occurred.

The mining operation in which the men were engaged is explained by the witness Johnson, the miner, who testified on cross-examination:

“The timbermen put the timbers in, but the miners and the trammers get the place ready for the timber-men to put in the timbers, but they can’t put in the timbers until after the trammers have gotten out the dirt and cleaned the place out. A miner usually gets hurt and dies more often than the trammer does. He doesn’t like to get hurt, no one does. When we are making this place safe by trimming it down and sounding it, we are doing that for our own protection as well as the trammers, and the trammers are right there with us, and they can look and see for themselves also; they have eyes of their own; they can look for themselves. It may have been a little over three months that Koskell had been working with me as a trammer. I was working in that drift, making that drift that he got hurt in, about three months. He was working right along with me all the time that I was helping to make that drift and could see what kind of ground it was that I was going through.”

The testimony shows that the work the men were engaged in was mining the ore, and incidentally making a permanent place to be used in future mining operations. The place which was being made was the timbered passageway along which the ore was to be carried as it was mined. In working in these drifts the work of the miners was to make the holes .and blast, and after the blast to pick it down and sound it and get the place ready for the trammers to take out the dirt. After a space sufficiently large had been blasted and cleaned out, the timbermen put in timbers. But this cannot be done until the trammers have taken out the loose ore and dirt, and the necessary space has been cleared.

The unsafe place in which plaintiff was injured was an incident of the work, and was created by the plaintiff’s coservants. It is well-established that the doctrine of safe place and nondelegable duty does not apply to a place while in the process of construction and being made safe.

The facts in this case, in our opinion, clearly bring it within the rule stated in the case of Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), affirmed in Karppinen v. Mining Co., 154 Mich. 528 (118 N. W. 1118); Dunn v. Dredge & Dock Co., 161 Mich. 551 (126 N. W. 833); Risku v. Iron Cliffs Co., 163 Mich. 523 (128 N. W. 747); Kaaro v. Mining Co., 178 Mich. 661 (146 N. W. 149). Under- the decisions of this court, the miner, trammer, and timbermen, being all engaged in the one common undertaking of driving the drift and taking out the ore, were fellow-servants, and if according to the theory of the plaintiff the miners neglected their duty and did not properly examine the excavation and trim down and sound as should properly have been done, their neglect is that of a fellow-servant and does not bind the defendant.

The plaintiff testified that on this occasion the miner's did not trim down or sound the place at all, although he knew it was customary for them to do this in order to determine that the place was safe. If after seeing this neglect of duty the plaintiff elected to continue to work, it must also be said that he assumed the risk.

Our attention is called to the case of Scendar v. Copper Co., 169 Mich. 665 (135 N. W. 951), which is clearly distinguishable from the case at bar. It appears in that case the plaintiff was instructed by the employer that the place would be kept safe for him, and that he must abide by the judgment of the captain, shift boss, and miners as to whether or not the place was safe, and was thus relieved of the necessity of looking out for himself. Neither does it appear that the plaintiff had notice that they were negligent in the performance of the duty which they were required to perform.

Under the evidence in this case a verdict was properly directed for the defendant, and the judgment is therefore affirmed.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: BROOKE, J.

text:
    ROLPH v. ROOD.
    1. Wills — Estates of Decedents — Partition—Necessity of Probate — Parties.
    In order to obtain a sufficient title upon wbicb to found a bill in partition proceedings by one of the devisees who claims title through the will of a deceased ancestor, resident of a foreign jurisdiction, it is necessary that the instrument be admitted to probate in the courts of this State. 3 Comp. Laws, §§ 9281, 9282 (4 How. Stat. [2d Ed.] §§10991, 10992).
    2. Estates of Decedents — Wills—Probate.
    Administration of a will in the probate courts of the State of Illinois without ancillary proceedings in Michigan is insufficient to pass - title to the devisees of real property under the will of a decedent who resided in Illinois, owning realty in this State.
    3. Partition — Devises.
    In partition brought by the devisees under the will of their deceased mother, no sufficient title to support the bill was established by proofs that the will under which the heirs took title had never been presented for probate in the county in which decedent resided and in which the land was located; the will having been admitted to probate in a foreign State where the devisor resided when she died.

      Appeal from Kalamazoo'; Stewart, J.
    Submitted June 17, 1914.
    (Docket No. 93.)
    Decided October 2, 1914.
    Bill by Charles N. Rolph and others against William C. Rood and others for partition. From a decree for defendants, complainants appeal.
    Affirmed.

      Lincoln H. Titus, for complainants.

      Clare H. Stearns, for defendants.
   BROOKE, J.

Leonidas Rood of the county of Kalamazoo, Mich., died on the 13th day of October, 1897. He left a last will and testament, by the terms of which he left the use of 100 acres, his home farm, to his wife, Electa M. Rood, for the term of her natural life. The testator then devised the fee in said home farm of 100 acres to his four children, share and share alike. The wife of Leonidas, Electa M. Rood, died on the 18th day of May, 1912. One of the four children, devisees of the fee of said farm, was Mary E. Rolph. The domicile of said Mary E. Rolph was Seneca, in the State of Illinois, where she resided for many years. She made and executed a last will and testament on the 7th day of December, 1899, in the State of Illinois, and on the 22d day of February, 1911, she made, executed, and annexed to said will a codicil. She died on the 16th day of March, 1911, a little more than one year prior to the death of her mother. By the terms of her will she devised all her real and personal estate to one Hosmer Chapman in trust. The terms of the trust are not important, except that the estate was to be used for the benefit of her children and finally to be paid to them. By the terms of the codicil, she changed her appointment of administrator from Hosmer Chapman to C. H. R. Thomas and made the following change with reference to her property:

“First. All money coming to me after my death (crops excepted) from my father’s estate or from any brother or estate of such to be divided and any of my children over twenty-three years of age to have their share at once — while the shares of children under twenty-three are to be put at interest until they reach that age when it is to be given to them.”

This will was duly admitted to probate in La Salle county, State of Illinois. No ancillary administration was had upon the estate of Mary E. Rolph in the State of Michigan. The complainants are the heirs at law and devisees under the last will and testament of Mary E. Rolph. Their bill is filed for the purpose of securing partition of the farm, the fee in one-foúrth of which was devised to their mother, by Leonidas Rood, their grandfather. To the bill of complaint was attached an alleged copy of the will of Mary E. Rolph and an alleged copy of the order admitting said will to probate in the State of Illinois. An answer was filed admitting the material allegations of the bill, but denying the right of complainants to partition of the farm in question. Upon .the hearing, when it had become apparent to the court that no ancillary administration had been had in the State of Michigan, a decree was entered dismissing the bill. From this decree complainants appeal.

Counsel for appellants in his brief argues and cites many cases in support of the argument that heirs have such an estate in possession of the inheritance as will enable them to maintain á bill in equity for partition, notwithstanding the existence of the power of the administrator to take possession under the statute, and that partition need not await the full settlement of the ancestor’s estate. We find no difficulty in agreeing with counsel for appellant as to the legal principles stated in his brief. We are, however, of opinion that they are not applicable in the case at bar. The complainants do not take the estate of Mary E. Rolph as heirs, but they must of necessity take it as devisees under her will, because in that will she disposed of her entire estate, both real and personal. There is therefore no intestate estate.

Section 9281, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10991), provides:

“No will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the probate court as provided in this chapter, or on appeal, in the circuit court or Supreme Court; and the probate of a will of real or personal estate, as above mentioned, shall be conclusive as to its due execution.”

Section 9282 (4 How. Stat. [2d Ed.] § 10992), provides :

“That any will duly admitted to probate without the probate court of any county in this State in which the testator left real or personal estate, and in the place of the testator’s domicile, may be duly admitted to probate and recorded in this State by duly filing an exemplified copy of said will and of the record admitting the same to probate; and proceeding in the manner hereinafter provided.”

As complainants must take as devisees under the will of Mary E. Rolph and not as her heirs, and as her real estate in the State of Michigan must pass to them by virtue of her will, we are of opinion that ancillary administration must be had under the terms of the statute, supra.

The decree of the circuit court is affirmed, with costs.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Brooke, J.

text:
    CLOSSER v. McBRIDE.
    1. Taxation — Notice oe Redemption — Subsequent Assessment —Amount to Redeem.
    In giving notice to the owner of lands that have been sold for unpaid taxes, the purchaser may properly include in the amount required to redeem the taxes for previous years which remain unpaid, and which the tax purchaser was required to pay in order to obtain title.
    2. Same — Description.
    The tax title was not void because in giving such notice he grouped in one parcel the N. W. % of the N. W. U, and the N. E. % of the N. W. or the N. Vz of the N. W. Vé, as it appeared in his tax deed, although the assessments for previous years were levied and returned against the separate parcels.
    3. Same — Amount Required to Redeem.
    But the notice should disclose the exact and correct amount which may be required for redemption, or it will be invalid.
    4. Same.
    Hence a notice which included in the total named as the sum required to redeem from the tax title, the tax of a year following that for which the property was sold, including penalties based on the additional tax, was invalid, since the notice demanded an excessive amount.
    5. Same — Trespass.
    The tax notice being void, defendant became a trespasser in entering into possession and retaining possession of the real property.
    6. Same — Deeds—Right oe Redemption.
    A purchaser by getting a quitclaim deed from the holder of the record title from the government secured the right to redeem from the holder of a tax deed who had failed to serve a valid notice.

      7. Same — Right oe Redemption.
    Having deposited. with, the register in chancery the sum. required to redeem the lands, plaintiff was entitled to maintain ejectment without securing a reconveyance of the property. Act No. 229, Pub. Acts 1897, § 141 (1 How. Stat. [2d Ed.] §1912).
    8. Same — Ejectment—Improvements.
    Nor was the occupier entitled to recover for improvements under 1 Comp. Laws, § 3927 or § 10995 (1 How. Stat. [2d Ed.] §1875, 5 How. Stat. [2d Ed.] § 13195).

    Error to Chippewa; Fead, J.
    Submitted June 18, 1914.
    (Docket No. 118.)
    Decided October 2, 1914.
    Rehearing denied December 19, 1914.
    Ejectment by Dayton W. Closser against James McBride. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John W. Shine, for appellant.

      Davidson & Hudson, for appellee.

       As to tbe right of one holding under invalid tax deed to be reimbursed for improvements, see note in 34 L. R. A. (N. S.) 1144.

   Brooke, J.

This case was tried before the court without a jury. The opinion of the learned circuit judge fully states the facts involved and the law applicable thereto. We, therefore, adopt it as our own. It follows:

“Findings of Fact.
“This is an action of ejectment brought by the plaintiff, claiming to be the owner of the original title to the lands herein described, against the defendant, who claims title by virtue of a certain tax deed and notice and possession thereunder for the period of five years and upwards. The land is described as the N. of the N. W. % of section 1, township 46 north, of range 2 west, in Chippewa county, Mich.
“(1) Plaintiff is the owner of the original title to said lands by virtue of the following conveyances: (a) Patent from the United States to Joseph Miller, dated May 25, 1885; (b) warranty deed from Joseph Miller to E. S. B. Sutton, dated August 2, 1888; (c) quitclaim deed from E. S. B. Sutton and wife to Dayton W. Glosser, dated February 12, 1912.
“(2) It is conceded that defendant is in possession of the premises, claiming ownership under tax deed and notice. It is also conceded that demand for possession was made upon him by plaintiff, and possession was refused.
“(3) The tax deed under which defendant claims is dated July 29, 1903, and was issued for the taxes of 1899. Hé purchased the lands at the county treasurer’s sale in May, 1902, for the sum of $9.67, and received a certificate of purchase therefor. After waiting one year, he returned the certificate to the auditor general and received his tax deed.
“(4) At the time of the purchase in May, 1902, defendant was also required .to purchase said lands for the taxes of 1897 and 1898, paying therefor the sum of $29.08; it then appearing on the State tax land list for those years. For the taxes of 1897 and 1898, the defendant received from the county treasurer two certificates of purchase which he still holds and for which he has not received deeds.
“(5) For the taxes of 1897 and 1898, the land appears described in 40-acre parcels, i. e., as the N. E. 14 of the N. W. % and the N. W. 14 of N. W. 14, respectively, in the delinquent returns, proceedings for sale, tax record, State tax land list, and certificates of purchase. For the taxes of 1899 the land was assessed as one description, i. e., as the N. % of N. W. 14, and so appears in all proceedings.
“(6) On May 4, 1903, the defendant also paid the taxes of 1900 ($6.19), but not as a condition of purchase, and for which he received a certificate of redemption.
“(7) On August 28, 1903, the defendant caused a tax notice to be served personally on the original owner of record, E. S. B. Sutton, and also on the Duluth, South Shore & Atlantic Railway Company. The railway company apparently has a track over part of the land, but its title does not appear in the evidence. No question is raised as to such title or service. The notice, with the return of the officer, was filed in the office of the county clerk on September 3, 1903.
“(8) The tax notice is in the statutory form, the controversial part of which is as follows:
“ ‘Description of Land.
“‘Situated in Chippewa county, State of Michigan. Lot. Block. Plat, addition or other description, giving name of city or village when necessary. N. % of N. W. Vé, of sec. 1, town 46 N. range 2 W.; taxes paid for the years 1897 and 1898, $29.08, 1899, $9.67, 1900, $6.19, making in all $44.94.’
“(9) At the time the tax notice was served, the land was wild and uncultivated and was not in actual possession of any one. About the latter part of May or the fore part of June, 1904, the defendant took possession of the land and has held it continuously ever since. He has made improvements on the premises which have enhanced the value of the land $185. He took off crops at different times, the profits of which would amount to about $48. The possession of the defendant has been of such a character as would, in a proper case, give title by adverse possession.
“(10) On March 13, 1912, plaintiff deposited with the register in chancery of Chippewa county the sum of $82.50 with the certificate of the auditor general, under section 143 of the tax law, for the purpose of redeeming the lands from defendant’s tax purchase. On April 3d, he deposited an additional $5 for the same purpose, making his total deposit $87.50, which sum is still in the hands of the register for the purpose of such redemption. The register, on March 29, 1912, notified defendant of the deposit by letter. Defendant has not accepted the money nor given a quitclaim and release to plaintiff.
“(11) All files and records and exhibits form part of these findings of fact.
“Conclusions of Law.
“1. Defendant’s tax deed was valid.
“2. Defendant properly included the taxes of 1897 and 1898 in the tax notice. They had been paid as a condition of purchase. Backus v. Cowley, 162 Mich. 589 (127 N. W. 775).
_ “3. The tax notice was not void because the descriptions were grouped. The description in the notice conformed to that in the deed. Loud v. O’Brien, 167 Mich. 209 (132 N. W. 495).
“4. The tax notice was void, for the reason that it included the taxes of 1900, which were not paid as a condition of purchase. This question has not been passed upon directly by our Supreme Court, but it has been held that where there are several descriptions in the notice, it must show the amount paid for each description during the whole time covered by the notice. Haden v. Closser, 153 Mich. 183 (116 N. W. 1001); Jackson v. Mason, 143 Mich. 357 (106 N. W. 1112); G. F. Sanborn Co. v. Johnson, 148 Mich. 406 (111 N. W. 1091).
“ Tt is a fair construction of the language of section 140 of the tax law * * * which requires that the notices given shall indicate the sum required to be paid to obtain a reconveyance of any description of land in the tax deed, whether sold and held for the taxes of one or those of several years.’ John Duncan Land, etc., Co. v. Rusch, 145 Mich. 1 (108 N. W. 494).
“The notice should disclose the exact and correct amount necessary to redeem, or it will be invalid. Teal Lake Iron Mining Co. v. Olds, 178 Mich. 335 (144 N. W. 845); 37 Cyc. p. 1402.
“It is evidently the purpose of the notice to inform the original owner that his land has been sold for taxes and, also, of the amount necessary to redeem from the sale. Such, also, is the effect and import of the foregoing decisions. The notice here does not conform to this requirement. The original owner could not, from the notice itself, compute the correct amount he would be required to pay in order to redeem. Even though,- as defendant contends, he should be entitled to reimbursement for the 1900 tax to protect his tax lien, he would not be entitled to penalties thereon, which the notice demands. The 1900 tax is not separated, but appears as though it were paid as a condition of purchase, and is added in the total. The notice, therefore, claims an amount in excess of legal demands, and is not a compliance with the statute.
“5. The tax notice being void, defendant was a trespasser in entering into possession and in retaining possession. At the time of the commencement of this suit, he had no right of possession. Section 142 of the tax law; Pub. Acts 1893, No. 206, as amended by Pub. Acts 1903, No. 83; Morrison v. Semer, 164 Mich. 213 (129 N. W. 1).
“6. Plaintiff, by virtue of the quitclaim deed from Sutton, the original owner of record, acquired the original title and the right to redeem the premises from the tax purchase.
“The cases of Horton v. Helmholtz, 149 Mich. 227 (112 N. W. 930), and Horton v. Salling, 155 Mich. 502 (119 N. W. 912), cited by defendant’s counsel, concern tax titles arising from the law of 1897, and are not in point.
“While the sale to the State and the expiration of the period of redemption divested plaintiff’s' grantor of his title, the sale' of the State to defendant reinvested plaintiff’s grantor with a title, interest, right, or privilege to redeem which he did not before possess. Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756).
“It seems to have been presumed that this privilege may be transferred by the original owner. G. F. Sanborn Co. v. Alston, 153 Mich. 463 (117 N. W. 625); G. F. Sanborn Co. v. Johnson, 148 Mich. 408 (111 N. W. 1091); Chandler v. Clark, 151 Mich. 183 (115 N. W. 65).
“Whatever the right of the original owner may be, it concerns real estate. I can see no reason why such right should not be transferable, and if it is, a quitclaim deed would be the natural method. Plaintiff’s title is sufficient to sustain an action of ejectment against the defendant for possession of the premises.
“Defendant contends that,, under the decisions in White v. Dunsmore, 167 Mich. 549 (133 N. W. 523), and Powell v. Pierce, 168 Mich. 433 (134 N. W. 447), the plaintiff cannot maintain ejectment until he has secured a reconveyance of the land from the purchaser, i. e., until he has obtained a quitclaim deed and release of the defendant’s interest. Some of the language in White v. Dunsmore might seem to sustain that position, but I do not so construe the decision of the court. It will be noted that the trial court held the plaintiff could not bring suit for trespass until he had taken advantage of his privilege to redeem by depositing the amount necessary therefor with the register in chancery. In the decision the court says:
“ ‘But we are of the opinion that the trial court was right in holding that the former owner could not, before securing a reconveyance of the land, maintain this action.’
“This language would indicate that the deposit of the redemption money works a reconveyance. Other language of the decision intimates that the deposit determines the right of the parties, and such, I apprehend, is the intent of the statute.
“Section 141, Pub. Acts 1897, No. 229, amending Pub. Acts 1893, No. 206, is obviously a redemption statute, it provides for redeeming the lands from the tax sale. By deposit of the necessary sum with'the register, which is one method pointed out in the statute by which the original owner may redeem, the tax deed and certificates become ‘void and of no effect against the lands thus redeemed.’ Section 141 of the tax laws; Miller v. Steele, 146 Mich. 127 (109 N. W. 37).
“ ‘The word “redeem” means to “buy back,” to liberate an estate by paying the debt for which it stood as security; to purchase; to receive back .by paying the obligation; to regain.’ 34 Cyc. p. 766.
“It would appear that, upon redemption in the statutory manner, something more than a mere right to compel a quitclaim and release from the tax purchaser accrues to the original owner. The tax purchaser becomes divested of all his interest in the premises by redemption. Would it be said that his interest remains in abeyance, vesting nowhere, until he has given a deed? Obviously not. It would be ‘redeemed,’ ‘repurchased,’ ‘bought back,’ ‘regained,’ by the original owner, and his estate would be ‘liberated’ from the lien against it. Such, as I view it, would be the effect of the deposit of the redemption money with the register, and, as plaintiff deposited such money before the commencement of this suit, it appears to me that he has become reinvested with the whole title and the present right of possession.
“8. The defendant is not entitled to recover for the improvements made- upon the premises-. His entry was in violation of the provisions of Public Acts 1903, No. 110, and occupancy for six years would not entitle him to compensation.
“The case of Powell v. Pierce, 168 Mich. 432 (134 N. W. 447), is on all fours with the one at bar as concerns this particular question. In that case the defendant’s grantor entered in May, 1903, conveyed by warranty to defendant in April, 1906, and claim was made that defendant and her grantor had peaceably occupied the land for six years before suit began, under color of title and in good faith. In December, 1902, an attempt had been made, but ineffectually, to give the statutory notice. The court held that defendant was not entitled to compensation for improvements either under 1 Comp. Laws 1897, § 3927, or 3 Comp. Laws 1897, § 10995.
“Judgment will therefore be entered in favor of the plaintiff and against the defendant in the usual form in ejectment for possession of the premises, together with the plaintiff’s costs to be taxed.”

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    HAYDEN v. TOWNSHIP OF BANGOR.
    Municipal Corporations — Highways—Bridges.
    Evidence that decedent drove bis vehicle and team around a washed out culvert and across a temporary bridge erected by the township, that in returning to the highway he attempted to drive across an open ditch partly filled with water, that he made no effort to ascertain whether the way was a safe one, and that a vehicle which preceded him at the same place in plain view encountered difficulty-in crossing the .ditch, and that the occupants were partly thrown out and partly jumped from the buggy, UelcL', to warrant the trial court in directing a verdict for defend- . ant township on the' ground of contributory negligence, there being no invitation or direction t'o cross the ditch at the point selected by decedent'.
    Error to Van Buren; Des Voignes, J.
    Submitted June 19, 1914.
    (Docket No. 81.)
    Decided October 2, 1914.
    Case by Lillie Hayden, as administratrix of the estate of Andrew Hayden, deceased, against the township of Bangor for the unlawful killing of decedent. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Thomas J. Cavanaugh and Diekema, Kollen & Ten Cate, for appellant.

      L. J. Lewis and David Anderson, for appellee.
    On August 8, 1912, a very heavy rainfall occurred in Van Burén county. As a result several bridges and culverts were washed out in the township of Bangor. Among them was a culvert on the town line road between Arlington township and Bangor township; the culvert itself lying within the village of Bangor. On the following day, in the afternoon, Mr. Disbrow, the highway commissioner, instructed Mr. Raymond, the marshal of said village, to put down a temporary bridge around said culvert. Mr. Raymond, on the afternoon of the 9th, erected a temporary bridge 20 feet east of the culvert proper. This bridge extended about 4 feet east of the line of the highway onto private property. It was made of telephone poles laid across the creek and covered by planking 16 feet long, with a little filling to the approaches on either end. At the north side of this temporary bridge there was a roadway leading southeasterly into the lands of Mr. Boyer, and over this people going south entered to cross the temporary bridge. To the south of the bridge there stood a row of maple trees along the roadside, and east of the trees was an open oat field. Between'the trees and the traveled portion of the highway there was a ditch which gradually sloped from the bottom up to the traveled part of the highway. It was an old ditch partly caved in and grown up with grass, weeds, briars, etc. After erecting the temporary bridge, Raymond placed a light on a box at the north end, and an 18-foot board across the way, one end resting on the ground, and the other' on the second wire of a barbwire fence to the east. South of the temporary bridge no barrier was placed to indicate at what point the traveler going south should leave the private property and seek to regain the highway.
    On the morning of the 10th of August, sometime between 6 and 7 o’clock, three teams started south from Bangor and across the temporary bridge in question. They proceeded in the following order: John W. Greenman in front, driving a logging truck; following him, Mr. Marshall and another gentleman in a buggy to which a single horse was hitched; following the buggy was plaintiff’s decedent, likewise driving a heavy logging truck. The front wheels of the truck were 48 inches high, and the bolster upon which plaintiff’s decedent was riding was 1% inches higher • than the wheel. He was seated in the middle of the bolster. Greenman, who was in advance, safely crossed the temporary bridge and proceeded south about 50 or 60 feet into the oat field, at which point, his horses having come into contact with a loose wire, he stopped his team in order to remove the wire. While he was standing there, Marshall and his companion in the buggy passed him to the right, and at a point between 60 and 75 feet south of the temporary bridge turned west across the ditch in order to regain the traveled portion of the highway. Marshall was closely followed by plaintiffs decedent with the logging truck.
    In crossing the ditch, as the front wheels of the buggy dropped into it, Marshall and his companion were partially thrown, and, in order to save themselves, were compelled to jump from the buggy. As the team of plaintiff’s decedent approached the ditch it was going very slowly, and, as one witness testified, “it kind of stopped,” when plaintiff’s decedent slapped the horses with his line, and they proceeded into the ditch. As the front wheels of the logging truck dropped into the ditch, which was at that point about two feet deep partially filled with water and obscured by a growth of weeds, etc., the plaintiff’s decedent was violently pitched forward upon the ground, and the horses, proceeding rather rapidly to get out of the ditch, drew the truck over him, causing injuries from which he died about two days later.
    Among other acts of negligence relied upon by the plaintiff, it is said in the amended declaration:
    “That it also became the duty of said township to put up and erect barriers or notices or warnings or some means by which the public would be warned of the particular course that should be followed to gain entrance to the traveled part of the highway after crossing said temporary bridge to the south, or so that the public might know at what particular point it would be safe to endeavor to reach said temporary bridge in traveling north on said highway.”
    The case was submitted to the jury, and, a verdict having been found in favor of defendant, it is now here for review.
   Brooke, J.

(after stating the facts). At the close of the evidence introduced on behalf of the plaintiff, a motion was made by defendant for a directed verdict based on many grounds, and, among them, upon the ground that plaintiff’s decedent was guilty of contributory negligence as a matter of law. This motion was denied, and the case was submitted to the jury under a charge which is severely' criticised by counsel for plaintiff, and upon which many assignments of error are based.

As to just what duty a municipality owes to the public in the maintenance of temporary ways outside the regular traveled portion of the highway, it is not necessary under the facts in this case to determine. We have read the evidence introduced on behalf of the plaintiff with care, and have reached the conclusion that the motion for a directed verdict made by defendant should have been granted upon the ground •that plaintiff’s decedent was guilty of contributory negligence as a matter of law. We are impelled to this conclusion by a consideration of the following facts. There had been in the vicinity of the scene of the accident an unusually severe rainfall, resulting in the carrying away of many bridges and culverts. The bridge over which plaintiff’s decedent passed had been completed on the evening of the 9th. He and his companions passing over it on the morning of the 10th were the first persons to use it. No roadway south' of the temporary bridge had been marked out, and one crossing it was notified to go in no particular direction. Plaintiff’s decedent was the third to cross the bridge. The one who first crossed it kept to the left in the field and was in a safe place; the second to cross it, Marshall, who was in the buggy, instead of likewise keeping to the left, turned abruptly to the right and attempted to cross the ditch in question and to regain the roadway at once. There was no invitation to cross at that point, and when choosing a new way common prudence would have imposed the duty on Marshall and his companion to satisfy themselves of the reasonable safety of the way before using it. This they did not do, and in crossing were partially thrown and partially jumped from the rig in which they were riding. All this occurred in broad daylight immediately in front of plaintiff’s decedent. His own team when it approached the ditch in question hesitated, and without the slightest care for his own safety he urged them to cross. At the moment he was perched upon a narrow, slippery bolster, the top of which was faced with iron, only 31/2 inches .wide, with his feet resting upon the tongue' or hounds in front of him. With the ocular demonstration of what had happened immediately preceding his attempt to cross and the fact that Greenman’s team stood but a few feet to the left in a place of safety, we think that the plaintiff’s decedent’s conduct in the premises indicates such a reckless disregard for his own safety as to preclude plaintiff’s recovery. Inasmuch as for this reason a verdict should have been directed, it becomes unnecessary to consider any of the assignments of error upon which plaintiff relies.

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    MORSE v. LOWE.
    1. Wills — Descent—Next op Kin — Relationship.
    Under the terms of a devise to testator’s son for life and at the son’s death to his children, i'f any, or,' if he leave no issue, to his “next of kin by blood relationship,” his father’s sister, a sister of his mother and a half brother and half sister of the mother were entitled to equal shares of the property upon the decease of the son without issue.
    2. Same — Estates op Decedents.
    The statute of descent, 3 Comp. Laws, §§ 9064, 9068 (4 How. Stat. [2d Ed.] §§ 10959, 10963), has no application to lands which are lawfully devised; and the method of determining the relationship is to be based on the rules of the civil law. Next of kin includes half blood as well as whole blood.

    Appeal from Oakland; Smith, J.
    Submitted June 22, 1914.
    (Docket No. 45.)
    Decided October 2, 1914.
    Bill by John E. Morse and others against Deborah Lowe for the construction of a will. From a decree for complainants defendants appeal.
    Affirmed.

      Patterson & Patterson, for complainants.

      C. C. Y erkes, for defendant.

       As to the meaning of “next of kin,” see note in 15 L. R. A. 300.
      On the right of persons claiming through deceased relative to participate with those standing in equal degree of relationship with such relatives, in provision for “next of kin,” etc., see note in 28 L. R. A. (N. S.) 479. ’'

   Brooke, J.

The bill of complaint in this cause is filed for the purpose of obtaining a construction of one section of the last will and testament of John W. Morse who died March 19, 1903. The clause in question follows:

“Second: I give, devise and bequeath to my son, Rollin J. Morse, for and during the term of his natural life the net use and income of the west half of the southeast quarter of section five and the west half of the northeast quarter of section eight, all in township one north of range eight east, Michigan, and at the death of the said Rollin J. Morse, I give, devise and bequeath the same to his children if any, and if my said son Rollin J. Morse shall die leaving no issue him surviving, then and in that case, I give, devise and bequeath the same to his next of kin, by blood relationship.”

Rollin J. Morse died without issue in the month of April, 1912. His nearest relatives at the time of his death were the following: (1) Deborah Lowe, defendant (since deceased), a full sister of his father; (2) Susan Rollin Jones, a full sister of Sarah Rollin Morse, his mother; (3) Mary E. Ackley, a half-sister of his mother; (4) John E. Morse, a half-brother of his mother. No one except the four persons above named has or claims to have any interest in the estate, except that, defendant having died since this suit was commenced, her daughters, Katie M. White, Mary Severance, and Myrtle Ford have been substituted as defendants in her place. By the decree of the court below it was determined that the complainants, John E. Morse and Mary E. Ackley, half brother and sister respectively, of the mother of Rollin J. Morse, and Susan Rollin Jones, full sister of the mother of Rollin J. Morse, were each entitled to one-quarter of the estate, and that the three daughters of Deborah Lowe were entitled to the other undivided one-fourth interest in equal shares. From this decree the defendants, being said daughters of Deborah Lowe, appeal.

Chapter 242, 3 Comp. Laws, is entitled, “Of title to real property by descent.” Section 1 thereof provides:

“When any person shall die seised of any lands, tenements or hereditaments, or of any right thereto, or entitled to any interest therein in fee simple, or for the life of another,, not having'lawfully devised the same, they shall descend, subject to his debts, in the following manner:”

Section 9068 (4 How. Stat. [2d Ed.] § 10963), provides :

“The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift of some one of his ancestors, in which case, all those who are not of the blood of such ancestor shall be excluded from such inheritance.”

The contention of appellants is stated as follows:

“It is the contention of the defendants that where the terms of the will provided that the fee of the property in question should go to the next of kin of Rollin J. Morse, by blood relationship, it was intended and contemplated that the statute above referred to was, to all intents and purposes, incorporated as a provision of the will in question for its proper construction and interpretation, and that if it is necessary to take the provisions of this section to which the complainants have resorted for the meaning of the term ‘next of kin by blood relationship,’ all of the provisions of such section must be so employed. In other words, that the obvious intent of the testator was_ that the property in question should go to Rollin J. Morse for his lifetime and at his death it should go to his next of kin in precisely the same manner as if Rollin J. Morse had died intestate owning the fee of the property in question.”

In support of appellants’ contention the following cases are cited: Lincoln v. Perry, 149 Mass. 368 (21 N. E. 671, 4 L. R. A. 215); Bayley v. Beekman, 197 N. Y. 593 (91 N. E. 1110); Harris v. Newton, 46 L. J. Ch. n. s. 268; Ashton’s Estate, 134 Pa. 390 (19 Atl. 699; Parrish v. Groomes, 1 Tenn. Ch. 581. We have examined all of these cases but .do not consider them controlling of the point in issue. It should be borne in mind that the statute above quoted has np application because John W. Morse, the maker of the will in question, did not die seised of any lands, et cetera, not having lawfully devised the same. The statute of descent clearly has no application to property which has been lawfully devised. Upon the death of Rollin J. Morse the estate In question is devised to his next of kin by blood relationship. This would seem to be a definite and ascertainable class, and the only question for determination is who falls within that class. The term “next of kin” signifies those who stand in thp nearest relationship to Rollin J. Morse. according to the rules of the civil law for computing degrees of kinship. Clark v. Mack, 161 Mich. 545 (126 N. W. 632).

Jarmon in his Treatise on Wills, vol. 2 (5th Am. Ed.), p. 643, says:

“A devise or bequest to next of kin creates a joint tenancy in the nearest blood relations in equal degree of the propositus; such objects being determined without regard to the statutes of distribution.”

In a note to the text it is said:

“It may be added that in the absence of any reference to the statute of distributions, the next of kin and their degree of kinship are to be ascertained by the rules of the civil law” (citing 2 Kent’s Com. 233; 2 Redfield on Wills, 77).

And, further:

“Next of kin, unless otherwise expressed, includes half blood as well as whole blood” (citing Wms. Ex’rs [6th American Ed.] 1208; Theobold on Wills, 168; Cooper v. Denison, 13. Sim. 290; Cotton v. Scarancke, 1 Mad. 35; Grieves v. Rawley, 10 Har. 63).

The three complainants and .the deceased defendant, Deborah Lowe, stand in the same degree of consanguinity to Rollin J. Morse if the computation is made according to the civil law, which must be done irrespective of the statute. See authorities, cited supra. Whether the expression in the will, “by blood relationship,” was intended to limit the devise to those next of kin of Rollin J. Morse having the largest amount of blood of Rollin J. Morse in their veins or not, it is impossible to determine, but it would seem that the term was intended rather to describe a class than indicate a distinction between members of that class. As a matter of fact Mary E. Ackley and John E. Morse, two of the complainants, half brother and sister to Rollin Morse’s mother, and who would be excluded from this devise by defendant’s theory, have more of the blood of Rollin J. Morse in their veins than have either Susan Rollin Jones, his mother’s full sister, or Deborah W. Lowe, his father’s full sister, for the reason that Mary E. Ackley and John E. Morse are not only son and daughter of his grandmother upon his mother’s side, but they are son and daughter of S. K. Morse, who was a full brother of his father. However, as before pointed out, we think this distinction was not intended by the testator.

We are of opinion that the conclusion reached by the learned circuit judge was the correct one, and his decree is therefore affirmed, with costs.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: STEERE, J.

text:
    BARR v. PACKARD MOTOR CAR CO.
    1. Judgment — Equity—Infants—Fraud—Appeal.
    Where complainant filed a bill in equity to set aside a judgment which by consent had been entered in his favor against defendant in justice’s court, averring that he had been induced by the fraudulent representations of the physician of an insurance company which protected defendant against injuries occurring to its employees, to compromise his claim for personal injuries for an inadequate amount, and where the trial court, after hearing the proofs, denied the relief prayed for, on the ground that fraud had not been established, the court, on appeal, will not determine the case on the theory that complainant was an infant and had repudiated the compromise before he became of age, unless it can determine from the record that an injustice has been done and that the contract was induced by fraud or unconscionable methods.
    2. Same — Equity—Setting Aside Judgment.
    The exercise of equitable jurisdiction to set aside a judgment is rarely exercised, and then, only when it is made clearly to appear that an injustice has been done.
    Appeal from Wayne; Mandell, J.
    Submitted June 19, 1914.
    (Docket No. 60.)
    Decided October 2, 1914.
    Bill by Harry E. Barr against* the Packard Motor Car Company for a decree vacating a judgment in justice’s court. From a decree for defendant, complainant appeals.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for complainant.

      Frank W. Atkinson, for defendant.
   STEERE, J.

This is an appeal from a decree of the Wayne county circuit court, in chancery, dismissing complainant’s bill filed to obtain cancellation of a judgment in justice’s court rendered in his favor by consent on settlement of a claim for damages resulting from personal injuries while in defendant’s employ, and praying that defendant “be estopped from pleading said judgment as a defense to any action brought by your orator against it for damages as aforesaid.”

A former order of the circuit court, in chancery, overruling a demurrer to said bill, was sustained on appeal to this court, and the case remanded, with leave to defendant to plead over within the time provided by rule. The decision is reported in 172 Mich. 299 (137 N. W. 697). The nature of complainant’s claim and the history of the case up to that time sufficiently appear in that decision and need not be repeated here.

On remand of the case defendant made answer and denial of all charges of misrepresentation, or fraud, and other material allegations embodying grounds for equitable relief set out in complainant’s bill, and replication thereto was duly filed. The case was then heard on pleadings and proofs in open court. The court found that no grounds for equitable relief stated in the bill of complaint were sustained by the proof, and rendered a decree dismissing the same for want of equities. The findings and conclusions of the court as to the equities of the case, as disclosed by the evidence, are in part as follows:

“The hearing hereon was had in open court, where all of the witnesses offered by both the complainant and the defendant were heard at length. None of the allegations of fraud and misrepresentations, in my opinion, as alleged in the bill, were established by the proofs. It appears from the proofs that the complainant, at the time of settlement, was between 20 and 21 years of age; that he lived at home with his mother, and the members of her family; that negotiations with the insurance company for a settlement were initiated by him, and that on two or three several occasions, when he visited the office of the insurance company, he was accompanied by his brother Arthur Elliott Barr, a person of full age; that he visited not only the physicians of the insurance company but saw a physician of his own choosing, who for some little time had been his family physician. All of these physicians, except one, were sworn at the hearing hereof. At the hearing complainant testified that he was told by his own physician that his shoulder was dislocated and two of his ribs were broken in the accident that is the subject of his litigation with the defendant. This testimony is denied by his own physician, who testified the complainant consulted him, and that a most thorough examination of the complainant by him failed to disclose any physical injury whatsoever. The other physicians who testified made the same statement, and all agreed that a most thorough examination failed to disclose any objective symptoms whatever. At the suggestion of the defendant, two of the physicians examined the complainant during the hearing of this cause, and they unite in stating that an examination failed to disclose anything the matter with the complainant, except possibly a nervous condition. Dr. Hitchcock, an expert in nervous disease, who is retained by the insurance company, testified that, at the time of his examination of the complainant, the complainant was or pretended to be suffering from certain nervous ailments, but the physicians thought they were due more to imagination- and hopes of the outcome of litigation than as any result of the accident complained of. It appeared from the testimony that Arthur Elliott, who appeared at the trial of the case in the justice’s court, and who negotiated for him and on his behalf with the insurance company, was in fact Arthur Elliott Barr, complainant’s own brother, and a member of his household. It appears further that the money received by the complainant in settlement of his claim was turned over to and accepted by his mother and expended principally in housekeeping expenses; only an insignificant part of this amount was shown by the complainant to have been expended for doctor’s services and for medicine. * * * I am of the opinion that this judgment should not be set aside, unless it is shown that it was fraudulently obtained. As there is no proof in the case that the judgment was fraudulently obtained, and further as it does appear to the court that the amount of the judgment was adequate, and further that it went to his mother, the actual guardian of the complainant, and further that his interests at the hearing and before the trial in the justice’s court were fully and fairly represented by his adult brother, Arthur Elliott Barr, I feel it would be inequitable to disturb that judgment and harass the defendant by further litigation.”

A careful reading of the pleadings and testimony satisfies us that the record fully sustains these findings and conclusions of the trial court; that complainant’s charges of fraud, misrepresentation, and undue advantage are not borne out by the evidence.

It is contended in. complainant’s behalf that he is entitled, apparently irrespective of all other considerations, to have the judgment of record in the justice’s court set aside,' “because he was an infant at the time the settlement was made, and because he had repudiated it when he came of age.” If so, the questions of fraud, liability of defendant, and adequacy or inadequacy of the amount paid in settlement were immaterial and not properly before the court! Such is not the scheme of his bill. In sustaining said bill on demurrer, this court recognized as the basic, equitable ground for relief the allegations of fraud, misrepresentation, and inadequacy which are now apparently claimed to be unimportant and not properly before the court for consideration. In connection with, and as bearing upon, them, complainant’s minority was a factor; but his strictly legal right on coming of age to repudiate without, restoration a contract made during minority is not the controlling question in this equity suit. He has appealed on equitable grounds to the chancery court for relief against an alleged unconscionable wrong, and has failed to sustain those grounds which he urged in his pleadings and which he sought to prove. Those questions were germane to the issue and furnished the moving equities of the bill. When this court said, “His bill of complaint presents a case entitling him to relief in equity,” it was dealing with the bill taken as a whole and taken as true, not with a bill merely stating an alleged purely legal right, which might, under the particular circumstances of a special case, be inequitable.

A contract by a minor is not void but voidable. Such contracts are to be enforced or repudiated in a court of equity upon equitable grounds. Gates v. Cornett, 72 Mich. 420 (40 N. W. 740).

In Cadillac Automobile Co. v. Boynton, 240 Ill. 171 (88 N. E. 564), it is said:

“The question whether or not appellant was indebted to the plaintiff in the judgment was equally important, for it is a well-settled rule of law that equity will not enjoin the collection of a judgment, even though rendered without service of process, unless a meritorious defense is shown”

—citing Reed v. Exchange Bank, 230 Ill. 50 (82 N. E. 341), in which it is said a mere general allegation of a good defense is not a sufficient pleading in such a case, but the facts upon which the party relies must be set out.

“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.” Finn v. Adams, 138 Mich. 258 (101 N. W. 533, 4 Am. & Eng. Ann. Cas. 1186).

We agree with the learned chancellor in this case that it has not been made to appear clearly that an injustice has been done complainant.

The decree is affirmed, with costs.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.