text:
    William Merson v. Elizabeth Merson.

      Equity practice — Exclusion of testimony — Appeal—Statute of frauds — Land contract — Execution of deed — Ratification.
    1. It is certainly an unusual practice for a circuit judge to attempt. to exclude testimony in a chancery case. On appeal, a caséis tried de novo, and the appellate court is expected to have-the benefit of all offered testimony. The only exceptions to-this rule are when, on grounds of public policy, the testimony should not be permitted to be elicited, as in case of a flagrant-attempt to disregard the privilege of witnesses, or where it becomes necessary to fix a reasonable limit to the number of witnesses called to a single point, as in case of an attempted impeachment. But ordinarily the offered testimony should betaken subject to objection.

    2. A husband contracted for the purchase of a city lot, arid, the purchase price having been paid, a deed of the lot was executed to his wife, and both signed a memorandum, indorsed on the contract, acknowledging the receipt of the deed. The husband afterwards filed a bill, alleging that the deed was fraudulently-obtained, and, on the hearing, his oral assent to the execution of the deed to his wife was testified to by several witnesses, •which testimony was objected to on the ground that oral Authority to convey to the wife was void under the statute of frauds. And it is held that the complainant is not at liberty to raise this question; that the vendor was the owner of the legal title; that complainant had an equitable title, which he could discharge by a surrender of the contract; that he acknowledged in writing the receipt of a deed in fulfillment of the contract; and that the transaction was not in the nature of a parol agreement, but a ratification in writing of the transfer of the legal title by the vendor.

    Appeal from Saginaw. (Edget, J.)
    Submitted on briefs April 13, 1894.
    Decided June 16, 1894.
    Bill to declare a trust in lands, and to compel a conveyance. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Swarthout & O’Keefe, for complainant.

      '.Trash & Smith, for defendant.

       See Meeeh v. Lee, 82 Mich. 274, holding that, where testimony is taken in open court in a chancery suit, the circuit judge has no authority to absolutely reject testimony, unless of a nature so scandalous as not to be proper to appear in the record of the proceedings; that if testimony is forced into a case'which is evidently irrelevant and immaterial, a motion may be made to expunge it, and the court may order it expunged, with costs against the solicitor insisting upon its being taken; but it must be returned on appeal, in order that the appellate court may pass upon the correctness of the ruling.

       See Crittenden v. Canfield, 87 Mich. 152, where a husband, who was equitably entitled to a reconveyance of 20 acres of land which he had conveyed to his brother by a deed absolute in form, but intended as a mortgage, in anticipation of approaching death directed that the land be reconveyed to his wife, which was done; which deed is held to have vested the title to the land in the wife as effectually as if taken in the name of the husband, and he had deeded directly to the wife, in consideration of love and affection, And in anticipation of approaching death.

   Montgomery, J.

Complainant and defendant are husThand and wife. Complainant files this bill, alleging that defendant obtained the title to a lot in the city of Saginaw in her own name, in fraud of complainant's rights, sunder circumstances substantially as follows: In March, 1872, complainant contracted with one George L. Burrows to purchase the lot in question at the price of $300, of which $15 was paid down, and the remainder was made payable in five equal annual payments. The bill alleges:

“ That the several payments on said agreement were due at the bank of George L. Burrows & Co., the business hours of which are between 9 a. m. and 3 p. h.; and, as your orator was at work on - some occasions when said payments became due on said agreement, he instructed said defendant to make said payments for him, with the money which your orator gave her for this purpose. * * *
“Your orator now charges that on or about the 30th day of July, 1880, said defendant made a payment on said agreement with the money of this complainant; and your orator now charges that said defendant, by fraud, and misrepresentation, induced said George L. Burrows and his wife, Julia S., to make this defendant the sole grantee in said deed instead of your orator. * * *
“ Your orator alleges that he never made an assignment, written or oral, of said agreement by and between George L. Burrows and himself, to this defendant or to any other party; that he nevér made to her a gift of his rights under said agreement, nor has he ever made her a gift of said real property, or any part thereof; that, so soon as he learned that this defendant had succeeded in having said deed executed to her, he said to her that it was not legal, that he never consented to her having said deed in her name, and that she would have to take the deed back, and have it made out in your orator’s name, and that "she had acted fraudulently with the money he gave her to apply on said agreement.”

The answer admits that defendant received the deed as stated, but alleges that the payments were made for the land out of the individual means of the defendant; denies the allegations of fraud, and alleges that said complainant requested the deed to be made by Burrows to the defendant, and himself receipted to Burrows therefor; that he expressly waived all rights he had in said premises in favor of the defendant.

The complainant’s testimony upon the subject of having authorized the making of a deed is as follows:

"I think they got me over to Mr. Burrows’ bank to sign some paper, but I did not know what it was, exactly, at the time. Before going over to the bank I had a conversation with my wife in my own kitchen at home. She wanted me to sign the contract in favor of her, as I understand, and I said 'No,’ I would not do it, because I did not want her to have everything I had. I wanted her to* have something of the property, and not have it all. The conversation I had with my wife in the kitchen took place before the deed was executed to her. It was some time before the execution of the deed. * * * At that time I did not know that I had signed this contract to my wife. To my knowledge I did not sign any paper at all. I can’t read writing, and, if they got me to sign anything, I did not know what I was signing. I know that she wanted me to sign a paper at that time in my kitchen, and I didn’t want to do it.”

On cross-examination he testified, in answer to the question :

"You supposed you were going to get a deed of your property?
“A. Yes; it was my money that paid for it. I did not state to Mr. Burrows that it was impossible for me to make payments on this contract. I did not instruct or authorize him to give a deed to Mrs. Merson. I deny that it is true, as far as my knowledge or recollection about it.
“Q. Do you mean to say that you didn’t tell Mr. Burrows that?
“A. Well, I don’t recollect. I know, if I told Mr. Burrows so, I. would know it. When I found that she had a deed, I said it was fraudulently got.”

On the back of the contract was indorsed the following memorandum:

" Received deed for within premises, July 30, 1880.
[Signed] " Elizabeth Merson.
"William Merson.”

Defendant also called two witnesses, who testified that complainant signed his name to this contract at the residence of the parties, and Mrs. Merson testified to the same thing. Mr. Burrows testified that complainant directed the deed to be made to the defendant.

A preliminary question is raised, relating to an error committed by the circuit judge in excluding some testimony offered by complainant, which it is now claimed would have tended to corroborate the complainant’s claim that his money, alone, paid the purchase price of the lot. It is certainly an unusual practice for a circuit judge to, attempt to exclude testimony in a chancery case. On appeal, a case is tried de novo, and the appellate court is expected to have the benefit of all offered testimony. The only exceptions to this rule are when, on grounds of pubt lie policy, the testimony should not be permitted to be elicited, as in case of a flagrant attempt to disregard the privilege-of witnesses, or where it becomes necessary to fix a reasonable limit to the number of witnesses called to a single point, as in case of an attempted impeachment. But ordinarily the offered testimony should be taken subject to objection, and such course should have been adopted in the present case. The circuit judge evidently excluded the testimony for the reason that if the offered testimony were admitted, and established all that was claimed for it, still the complainant would not be entitled to the relief prayed. In doing so he took the risk of the appellate court’s adopting a different view of the other points in the case, in which event his ruling would have resulted in a mistrial, which, under our system of practice, should never occur in a chancery case.

In the present case, however, we are satisfied that the error committed did not result in doing any, injustice to the complainant. It is apparent that the question of first importance is whether the title to the lot was taken in the name of defendant with complainant’s assent; and irpon this question the testimony is not only convincing, but overwhelming, in favor of defendant. Even the complainant’s testimony is hardly a denial of the fact, while the testimony of four other witnesses is positive that he did assent to the making of the deed to his wife. This, in connection with the fact of the indorsement upon the contract, and of his acquiescence for a period of 12 years, including a period of two years after he had separated from his wife, puts the question beyond any reasonable doubt.

It is contended that oral authority to Burrows to convey to the wife is void under the statute of frauds] but the complainant is not at liberty to raise this question in this case. Mr. Burrows, the vendor, was the owner of the legal title. The complainant had an equitable title, which he could discharge by a surrender of the contract. On the deed being made to defendant, complainant, in writing, acknowledged the receipt of a deed in fulfillment of the contract. This was not in the nature of a parol contract, but a ratification in writing of the transfer of the legal title by Burrows, and amounted to an acknowledgment of satisfaction of the terms of the contract.

The complainant made no case entitling him to relief, and the decree will be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Alonzo Vincent v. Edward Brant.

      Landlord and tenant — Forcible entry and detainer — Parties.
    1. The general rule is that the possession of a tenant is not such a possession as entitles his landlord to bring the action for forcible entry and detainer, and that, when a tenant is disseised under circumstances which authorize the bringing of the action, it should be instituted by the tenant.
    2. The landlord cannot in such case maintain the action in his name, upon the claim of collusion between the tenant and one adversely interested, where the tenant could not himself have instituted the proceeding by reason of the entry having been made with his consent.
    3. A possession of a public billiard room, sought to be acquired by placing several men therein, with directions to remain, which they do until the hour for closing, when they are forcibly expelled, is not a sufficient basis for the institution of proceedings for forcible entry.
    4. One entering into, premises through collusion with the tenant cannot, in a proceeding to recover possession instituted at the expiration of the term, set up a title or right adverse to the landlord.
    Error to Berrien. (O’Hara, J.)
    Argued April 10, 1894.
    Decided June 16, 1894.
    Forcible entry. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      George W. Bridgman and M. L. Howell, for appellant.

      George M. Valentine and George S. Glapp, for complainant.
   Montgomery, J.

This is an action for a forcible entry. The locus in quo is a room in the Hotel Benton, at Benton Harbor. Vincent was lessee of the hotel from Brant, and sublet the room in question to Iman & Whiteman for a billiard- room. Brant brought proceedings against Iman & Whiteman before a circuit court commissioner to recover possession of the room, and obtained a judgment. An appeal was taken from this judgment in the name of Iman & Whiteman, but it was in fact taken by Vincent, who furnished the bond. The evidence on this trial tended to show that while this appeal was pending -- a secret arrangement was made between Brant and Whiteman, by which Whiteman agreed to deliver up possession to Brant, and discontinue the appeal. The purpose of Brant in obtaining possession was to hold under his judgment. White-man had paid rent according to the terms of his lease, and was, as between himself and Vincent, entitled to possession. On August 11, 1892, Whiteman commenced to take down the billiard tables; and .Vincent, learning of this fact, and perhaps being, made aware of the secret arrangement between Brant and Whiteman, sent three men into the room, with instructions to remain there. The room was open to the public. The. men in the employ of Vincent went into the room, and remained there, without comment, until time for closing up, and, when informed of Mr. Whiteman’s intention to close up, stated that they had been sent there by Mr. Vincent with instructions to remain, and refused to leave. Whiteman left them in the room, and went out for Brant, who came, with assistance, and expelled them from the room by force. Vincent regained possession by forcing a door, and Brant again ejected him by force.

The question of chief importance is whether Vincent had such a possession as entitled him to maintain the action. The complainant’s contention is that the secret agreement between Brant and Whiteman amounted to a fraud upon Vincent, and that as, by this collusion, Brant has deprived Vincent of the right to bring the suit through Whiteman, Vincent can himself institute the proceedings which he could otherwise have done through Whiteman.

The general rule, undoubtedly, is that the possession of a tenant is not such a possession as entitles his landlord to bring the action for forcible entry and detainer, and that, when a tenant.is disseised under circumstances which authorize the bringing of the action, the tenant should institute the proceedings. See Tayl. Landl. & Ten. § 790, and cases cited. Furthermore, it appears that Whiteman could not himself bring the suit for forcible entry, not because he has disabled himself from doing so by a collusive agreement after the event, but .because' there was no forcible entry without his consent. If the facts are as contended for by complainant, defendant could not, on any proceeding commenced to recover possession after the termination of the term of -the tenancy, set up a title or right adverse to Vincent. The collusive arrangement between Brant and Whiteman, if such an arrangement existed as is claimed by the complainant, would debar Brant from claiming any rights other or different from those which Whiteman could himself have asserted. See McCartney v. Auer, 50 Mo. 395; Morgan v. Ballard, 1 A. K. Marsh. 558; Steinhauser v. Kuhn, 50 Mich. 367. But it does not follow that an action for forcible detainer may be brought before the expiration of Whiteman's term, based upon no other possession than that acquired as above detailed. The following instruction asked for by defendant should have been given:

From the undisputed testimony' in this case, at the time Yincent put the three men in the room, and White-man desired to close up the room for the night, he had the right to use all the necessary force to put out such men, if they refused to go peaceably."

See Newton v. Doyle, 38 Mich. 645.

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

The other Justices concurred.


text:
    Mary Breemersch v. Ella F. Linn and William F. Linn.

      Contract — Fraud—Rescission.
    Courts cannot make contracts for parties, nor rescind bargains intelligently made, where no fiduciary relation exists, except upon clear and convincing proof of fraud.
    Appeal from Wayne. (Hosmer, J.)
    Argued April 13, 1894
    Decided June 16, 1894.
    Bill to rescind an exchange of real estate on the ground of fraud. Defendants appeal.
    Decree reversed, and bill dismissed.
    The facts are stated in the opinion.

      James H. Pound, for complainant.

      Robert Young, for defendants.
   Montgomery, J.

This is a bill filed to rescind a trade. On the 18th of November, 1889, complainant was thd owner of 94 feet of land on Ash street, in the city of Detroit, upon which were situated a dwelling-house and a double tenement house, whioli consisted of a cooper shop reconstructed. This property was incumbered to the amount of $4,700, or thereabouts, by a mortgage which had been foreclosed, and the redemption on which would have expired in March, 1890. Complainant was also-engaged in a small way in the grocery business, and had property which she used in connection with this business, consisting of store furniture and fixtures,’ amounting to-about $300. Defendant Ella E. Linn was the owner of an hotel property known as the Central Hotel,” at Tecumseh,-Mich., incumbered to the amount of $1,800-She was also the owner of the furniture in the hotel, which complainant in her bill alleges to have been worth about $400. On the day in question, by a memorandum agreement, complainant agreed to exchange the Ash-street property, subject to the incumbrance, and $300 of store fixtures, for the hotel and furniture, which were to be taken subject to the incumbrances. On the 21st of November the exchange was effected, and the deeds passed between the parties. The hotel was at the time in the possession of a tenant, who remained until some time in January following, when complainant went to Tecumseh, and took possession. Defendant took possession of the Ash-street property, and built another house ujion it, costing upwards of $2,300. On the 2d day of February, 1891, this bill was filed. The bill charges that the defendant W. F. Linn was the agent of the defendant Ella F. Linn, in whose name the title to the hotel property stood, and that, in effecting the exchange, he was guilty of fraudulent representations, which induced the complainant to part with the title to her property. The fraudulent statements and acts relied upon are as follows: That complainant contemplated a sale of the Detroit property, and that defendant W. F. Linn assured her that he would give her $500 more in trade; that he represented the hotel property to be worth $6,000; that it was situated in a flourishing village; that it was rented to a good tenant at $40 per month; that from 16 to 20 boarders were constantly at the hotel, paying for their board; and that complainant, her husband, and her daughters could make $600 to $800 net per year from running the hotel. The bill also avers that the hotel register was stuffed with fictitious names, to make it appear that there were in fact the number of boarders reported. It also avers that defendant stated that the incumbrances were held by men v/ho were willing to extend the time. The answer denies all fraudulent representations. The circuit judge granted the relief prayed in the bill, and defendants appeal.

The record is voluminous, and the testimony is in some. points conflicting. We have examined the case with care, and feel constrained to say that the testimony has not left upon us the same impression which it evidently did upon the circuit judge, and that our conclusions are based very largely upon the undisputed testimony and upon that of complainant herself. Complainant testified that the defendant W. F. Linn represented that the hotel property was worth $6,000. Her husband was called by her as a witness, and in answer to the question “How much did he say the property was worth there?” said “About $5,000, without the furniture.” This, in connection with the fact that the consideration stated in the deed was $5,000, is convincing evidence that the complainant’s recollection is at fault on this point at least. Complainant testified as to the furniture that Mr. Linn at first claimed that it was worth $1,500, but that, after she saw it, she said that she would not give $500, and that it was put in at $400. The bill also avers the value of the furniture to have been $400. Pending the negotiations for the trade, the complainant, accompanied by Mr. Monaghan, an agent of the defendants, visited Tecumseh, and made some examination of the hotel. It is true she now testifies she had little opportunity to examine the hotel, but she also testifies that, after her return from Tecumseh, she told Mr. Linn she would not give $500 for the furniture, and that “Mr. Monaghan went on to tell him, in my presence, that there was this broken, and that, and that it was in a dilapidated condition, and so on; and finally Linn agreed to take $500, and, when we made the trade, I think we considered it at four.” This testimony is significant to show the extent of the investigation which complainant evidently made of the furniture; and if it is true, as stated, that Mr. Linn at first asked $1,500 for the furniture, and afterwards, upon her investigation, was willing to accept $500, it is next to absurd to say that she would after this rely upon his estimate of the value of the other property included in the trade.

The testimony as to the actual value of the property is. conflicting. Complainant called numerous witnesses, who fixed the cash value of the hotel property without the furniture at $2,500, but they state that it was worth more by way of trade. Among the witnesses called by complainant is one who has been assessor of the village for eight or nine years, and has assessed the property at $2,800 to $3,200. In the year 1889 it was assessed at $3,200. This act of the witness is wholly inconsistent with his present testimony, and well illustrates the danger of resting an inference of fraud upon the mere statement of value. It is well known that real estate is not often assessed at more than its cash value. It often occurs that it is assessed much below. For instance, complainant’s property, which she claims was worth $8,000, was assessed at $3,200, and it is not without its significance that the assessed value of both properties at the time of the trade was the same. The defendants called numerous witnesses, who testified that the hotel property, exclusive of the furniture, was worth $4,500. There is the same discrepancy in the proof as to the value of complainant’s property. We think $7,000 is a fair valuation of the property. It was incumbered by mortgage already foreclosed, amounting to $4,700, leaving an equity of $2,300. If wé add the value of the personal property, — $300,—complainant put into the trade $2,600. If the defendant be credited with $400 for the furniture, this leaves $2,200 which complainant paid for defendant’s equity in the ’hotel property, making the price of the hotel property $4,000. We are convinced, that the testimony fairly shows the property-to have been worth at the time of the exchange this sum.

As to the representation that Tecumseh was a flourishing village, the defendant Linn testifies that he read to the complainant a statement from the Michigan State Gazetteer. The complainant, as before stated, visited the village. Mr. Monaghan took a horse and buggy, and drove her about the village; and the testimony of her own witnesses shows that the village is not a dead town, as averred in her bill.

The complainant claims that the defendant misrepresented in stating that Mr. Hunt, the tenant, was willing to retain the house. But it 'appears — First, by the testimony of her husband, that Mr. Linn had seen fit to secure the payment of the rent by the tenant by a mortgage upon property owned by him; and, second, it appears by the complainant’s own statements that the defendant represented to her that she would be able to do well by keeping the hotel herself, with her husband and daughters. More than this, it appears by her own testimony that on the occasion when she and Mr. Monaghan went to Tecumseh, before the trade was completed, Mr. Monaghan stated that the Hunts were allowing the business to run down.

As to the allegation that the hotel register was stuffed for the purpose of deceiving the complainant, the complainant seeks to prove this by the testimony of the witness Hunt. We are not satisfied that this witness’ testimony is reliable. But certainly, if any effort was made in this direction, it failed to have any influence upon the complainant in this case; for not only does it appear by her own testimony that complainant never saw the register prior to the exchange, but an equally conclusive answer to this claim is that she testified that Mr. Monaghan registered her name and his in the hotel register, on the day when she visited Tecumseh, after dinner. She also testified that they reached there after the regular dinner hour, so that dinner had to be prepared for them; and an examination of the register for that day discloses the fact that the names claimed to have been added for the purpose of giving a false appearance appeared on the register after the names of complainant and Monaghan.

The bill avers that the defendant represented that there were 16 to 20 regular boarders. Complainant’s husband testifies that the defendant represented that there were 18 to 20. Complainant, in her testimony, says that the representation was that there were 16 to 18, and she also testifies that defendant’s agent, Monaghan, told her that the tenant was running the trade down somewhat. We. do not think that, upon such testimony as this, it could be said that complainant was deceived as alleged in her bill.

As bearing upon the question of the extent of the business which the hotel was doing, the complainant avers in her sworn bill that, on the day when she was in Tecumseh with Mr. Monaghan, she had dinner in the hotel with seven others, and there was another table, upon which the debris of as many more meals appeared. In her testimony, given at the trial she swears:

“ Q. About how many dishes were there that had been set there, and apparently dirty, as though to show the number of people that had been eating there at that time, as near as you can tell?
“A. I think there was all the way from 18 to 24. There was four tables that had dishes on.
Q. Four tables that had had dishes that had been used, in the dining room?
“A. Yes, sir; and a couple of the transient tables that was not used. All the way from 18 to 24. I won’t say positively. There was two men eating in the room, too, when we went in. I had forgotten that.”

This testimony is too unsatisfactory to justify a decree in favor of the complainant, if it stood uncontradicted. Her memory was at fault either when she swore to her bill,' or when she gave her testimony on the trial.

It is undoubtedly true that the defendant sought to impress upon the complainant the belief that the exchange would be to her advantage. There was nothing fraudulent in this, nor is there anything to indicate that defendant did not in good faith believe that such exchange would be to her advantage. She herself testifies that the property which she held was almost lost to her. She had not been able to make the payments. And, while it has turned out that she did not make a success in keeping hotel, it may be for the reason stated in one of her letters, in which she says: “I am very sorry I ever saw the place. We are not adapted to keeping hotel.” The trade" has proven unfortunate for complainant. She has sought to establish the right to rescind by charging against the defendant various fraudulent acts and statements, some of which are material and some not; but 'her own testimony fails to establish these charges. Courts cannot make contracts for parties, nor rescind bargains intelligently made, where no fiduciary relation exists, except upon clear and convincing proof of fraud. We are convinced that the testimony in this case was not such as to justify a decree rescinding the sale.

The decree will be reversed, and the bill dismissed, with costs of both courts to defendants.

The other Justices concurred.


author: Long, J.

text:
    E. Frank Parks, Administrator, etc., v. Margaret Crippin-Norris.

      Statute of limitations — Estates of deceased persons — Growing crops — Conversion—Tenancy in the entirety — Evidence.
    1. The statute of limitations will not begin to run against an action for the'conversion of the personal property of an intestate until an administrator is appointed.
    2. Where, in a suit by an administrator to recover from the widow of the intestate the value of certain crops growing upon a, farm owned by her and her husband in the entirety at the time of his death, and which she afterwards converted to her i own use, the plaintiff claims to recover upon the theory that there was an arrangement between the husband and wife by which the husband was to own the crops, an objection that-title to the crops can only be shown by showing the record; title to the farm is untenable, as, if plaintiff’s theory is substantiated by the evidence, he can recover for the whole crop.
    Error to Van Burén. (Buck, J.)
    Submitted on briefs April 17, 1894.
    Decided June 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Hawes & Luby, for appellant.

      Mills, Osborn é Cavanaugh, for plaintiff.
   Long, J.

This action was brought by the administrator of the estate of Thomas Crippin, deceased, to recover the value of certain personal property, which it is claimed the defendant,, the widow of the deceased, reduced to her possession and converted to her own use. Mr. Crippin died August 6, 1886, and the plaintiff was appointed administrator August 1, 1892. The suit was commenced by summons issued September 19, 1892.

It appears that Mr. Crippin and his wife, prior to Crippin's death, lived upon, and owned as tenants by the entirety, a farm of about 130 acres in Van Buren county. Upon the farm, at the time of Crippin's death, was a large quantity of personal property, and immediately after his death the widow took possession of all of said personal property, and appropriated it to herself, claiming it as her own, and thereby keeping it from the estate. She afterwards disposed of it, and appropriated the proceeds. The question litigated was, who was the owner of this personal property before the death of Thomas Crippin? He left surviving him six children, some of whom were minors at the time this suit was commenced, and the widow, has since married Mr. Norris. For some time ¡before Mr. Crippin's death,, he lived with his daughter Mary, about two miles from the farm. At his death the personal property in controversy was on the farm, and consisted of horses, cows, hogs, sheep, mower, reaper, carriages, plows, cultivators, fanning mill, scales, about 1,400 ¡bushels of corn, 240 of oats, 912 of wheat, 30 to 40 tons of hay, 250 bushels of potatoes, and other property. The wheat had been cut and stacked. The testimony shows that Mr. Crippin always had charge of the farm and worked it, and that this, property was always recognized and called his property.

The defendant pleaded the statute of limitations with Iher plea of the general issue, and, on the trial, objected to any evidence under the pleadings, for the reason that the declaration shows that all the causes of action alleged accrued more than six years before the action here was commenced; the declaration alleging that the conversion took place on August 6, 1886, and counting specially upon promises made to Thomas Crippin in his lifetime to pay to him the sums of money sued for, and further averring that thereafter, and after the death of Crippin, defendant promised the plaintiff to pay him, as administrator, the said sums of money, but that she has paid no part thereofThe court overruled the objection, and permitted the proofs to be introduced. The defendant introduced testimony tending to show that some portion of this personal property belonged to her, and she also made the claim that portions of the personal property in the way of crops which were on the farm, and uncut and unharvested, passed to her at the time of her husband's death by right of survivorship, as they were a part of the real estate which she and her husband held by the entirety.

At the close of the testimony the defendant requested the court to charge the jury as follows:

1. Under the undisputed evidence in this case, the plaintiff can recover for not to exceed one-half, the value of all personal property that was on the farm at the time of the death of Thomas Crippin, exclusive of what was owned, if any, by Mrs. Norris
2. The jury are instructed that the plaintiff in this case, under the undisputed evidence in the case, cannot recover for the corn and potatoes, or for any other crops, that were growing upon the farm at the time of the decease of Thomas Crippin.
3. The jury are instructed that the plaintiff cannot recover for any household furniture, unless you find that the value of the same shall exceed the sum of $250, and then only for such excess, if any, over and above $250.
4. The jury are instructed that, in making up the amount which you find due the plaintiff, you shall make a reduction or allowance therefrom of $200, this being the amount which the statute gives her as a matter of law.
5. The jury are instructed that in no case you shall allow the plaintiff for the value of over 30 tons of hay, one set of single harness, and two cultivators, as that is all the plaintiff claims in the declaration in this case.
6. The undisputed evidence in the case is that all the property taken possession of by defendant, and converted to her own use, was so done more than six years before the commencement of this suit, and therefore, under the statute of limitations, the plaintiff cannot recover in this cause at all."

The first, second, and sixth requests were refused. The third and fourth requests were given. The fifth request was given, with the following modification:

“ That is all that plaintiff claims in his declaration that the hay amounted to. He only claims as to the single harness to be one set. He claims in the declaration for only two cultivators. So that, as to the hay, single harness, and cultivators, you should allow not to exceed 30 tons of hay, one set of single harness, and two cultivators.”

The'court instructed the jury in the general charge, substantially, that if they found from the evidence that, at the time of the death of Mr. Orippin, he was the owner of the personal property, then their verdict should be for the plaintiff; that, under the laws of this State, the children of the deceased husband are entitled to their share of personal property, just as much as the widow is entitled to hers; that, Orippin having died intestate, all of his-personal property would go to his administrator; that, if they found from the evidence that the defendant took possession of the personal property after her husband's death, it would make no difference what became of it, as defendant would be liable for the value as the jury might find it at the time of the death of her husband; that, if she took possession of it, and appropriated it to her own use or disposed of it, and kept it from the estate, she would be liable to the administrator for its value. The above charge was given in connection with the modification contained in defendant's fifth request.

The court further directed the jury that whoever goes into possession of the personal property of an intestate at his death, and assumes control, becomes responsible for it to the administrator of the estate of the deceased when appointed; that, when a man dies intestate, his personal property does not, like real estate, descend to his widow or next of kin or heirs at law, but remains in abeyance until an administrator can be appointed, and is then vested in him as of the time of the death of the intestate; that no title vests in his -widow, children, heirs, or next of kin until the administrator has been appointed and the estate has been administered, and then they take the surplus remaining after the payment of the debts of the deceased and the expenses of administration, each in his or her proportion, under the statute of distributions; that until then a widow or the next of kin of the deceased, although having the right to a distributive share, has no right to possession of the whole or any specific portion of the personal property.

The court further directed the jury that if they found that Crippin died possessed of the personal property, that his widow took possession of it and disposed of it, and plaintiff was afterwards duly appointed administrator of the estate and qualified as such, then he was entitled to recover the fair market value of such property taken possession of and disposed of by defendant at the time at which they might find she took possession of it, with interest at 6 per cent, per annum.

The court further directed the jury that it was for them to determine what articles of personal property belonged to Crippin, and what . to defendant, according to the understanding and agreement or rights of the parties; that whatever property Crippin had, which was understood by both himself and defendant to be his, he had the title to; that what was understood and agreed between the parties as belonging to the defendant, she had the title to.

Speaking of the property which was raised upon the farm, the court directed the jury that the farm was that which the two parties owned as tenants by the entirety; that each one owned the whole of it, — or, in other words, her ownership in it was as ‘good as his, and his was as good as hers, — so that who owned the crops raised upon the farm would be a matter entirely of understanding and agreement, either express or tacit, between them, and the jury, as men of affairs, were to determine just what the arrangement, understanding, and agreement between the parties was with regard to that matter; that if there were any presumption about it, the presumption would be that the property would be owned, and whatever was raised upon the farm would be owned, jointly, but that that was a matter which is so often set aside by agreement that it furnishes very little criterion or aid to a jury in coming to a conclusion, so that the jury must look to the circumstances in all their lights and shades, — must consider what the parties did, how they conducted themselves towards the property, and how it was regarded as between them, — and from such circumstances say who owned the property that was raised upon the farm; that as to the crops growing upon the farm at the time of the death of the -deceased, the jury should, in determining who owned these, determine what the general understanding was with regard to all the crops growing; that if the understanding was that Crippin was the owner, and whatever crops were raised there were to be his without regard to the ownership of the fee to the land, then the crops which were so raised, or some portion at least, would be his; so that, if the jury found that the understanding and agreement between the parties was that Crippin was the owner of whatever was raised upon the farm, then the ownership as to the growing crops would not terminate at his death; that if, however, they found the understanding to be that the parties were to own the crops in common, the plaintiff could recover for only one-half of the growing crops.

Defendant’s first claim is that the plaintiff’s action is barred by the statute of limitations. That claim cannot be supported by the record. At the death of the intestate, as stated by the court below, the' title to the personal property did not vest in the widow or the children. The widow took it all into possession, and held it, or disposed of it without hindrance from any person. This property was liable to the payment of the debts of the deceased, and there was no person in being in whom the title could vest until the appointment of an administrator.

It was said in Cullen v. O’Hara, 4 Mich. 132, 136:

When a man dies, his possession of property which he owned during his life is, of course, terminated; others come into the possession of it, — ordinarily, his nearest friends and relatives, who are certainly the most fit persons to .take charge of it. Whoever thus comes into the possession of any portion of the personal property of an intestate after his decease, and assumes control over it, becomes responsible for it to the administrator when appointed. He cannot safely deliver it to any one else except the administrator, or some one who shows a better right to it than himself. This must be so upon principle, for otherwise the personal property of a decedent might easily be placed beyond reach before administration granted, and where no one could be found who had it or was .responsible for its value.”

It is well settled in this State that, on the decease of an intestate, the title to his personal effects remains in abeyance until the appointment of an administrator, and then vests in him, in trust, in his official capacity, as of the time of the intestate’s death, and he is entitled to the possession of such assets, and to manage the property for the purposes of his trust. Palmer’s Appeal, 1 Doug. 424; Cullen v. O’Hara, 4 Mich. 132; Wales v. Newbould, 9 Id. 83; Morton v. Preston, 18 Id. 60; Gilkey v. Hamilton, 22 Id. 283; and Albright v. Cobb, 30 Id. 359. Until settlement and distribution of an intestate’s estate, the administrator alone can collect and enforce payment of the demands due. Hollowell v. Cole, 25 Mich. 345. There was no person authorized, in this case, to bring an action until the administrator, was appointed; consequently, the statute of limitations did not begin to run until that time.

Objection is made to some of the testimony offered by the plaintiff relating to the ownership of the crops growing upon the farm. We think this testimony was competent. It was proper for the plaintiff to show what property was situate upon the farm at the time of the death of Mr. Crippin, as well as what crops were growing there at the time defendant took possession of them and disposed of them. The cpiestion was asked, of one of plaintiff’s witnesses, what personal property her father had on that farm, and she stated that there were certain crops that were not harvested at the time of his death. This was objected to because the title to the farm was joint as between husband and wife, and title to the crops could only be shown by showing the record. This testimony was competent upon the plaintiff’s theory of the case. It was contended by him that some arrangement or understanding was had between Mr. Crippin in his lifetime and- his wife that the crops were to belong to the husband. It was upon this theory that the plaintiff claimed to be entitled to recover for the whole crop. If this theory were substantiated, it. would not matter who owned the farm. If the wife had been the sole owner of the farm, and the husband had worked and cropped it, and'was to own all the crops growing there, and they were his at the time of. his death, the administrator would have had the right to recover their value. Proof of the title to the farm in defendant would not, under such circumstances, show the title of the crops growing on the farm in her. "We think that there was testimony supporting the plaintiff’s theory of the case, as presented by the court to the jury, so that whoever had the title to the farm could not affect the legal title to the crops unharvested at the time of the death of Mr. Crippin; and that the question of the plaintiff’s right to recover for the value of them was fairly submitted to the jury upon the theory of some arrangement between the parties as to the title.

Defendant's first request was properly refused by the court, as there was evidence in the case from which, the jury might find that the plaintiff was entitled to recover the value of the whole property, and under this testimony the plaintiff could not be limited to the recovery of one-half of the value.

As to the second request of defendant, it may also be . said that if the jury found that. Crippin planted the crops, and was to have all that was raised upon the farm, under some arrangement made with his wife, then the plaintiff was entitled to recover for the crops growing upon the farm at the time of Mr. Crippin’s death, which were taken and appropriated by the defendant.

The defendant’s remaining requests have been already .discussed.

We have examined the whole record carefully, and are satisfied that the questions presented on the trial below were fairly submitted to the jury as questions of fact under the charge of the court, which we think was in accordance with well-established principles of law, as settled in this State.

The judgment is affirmed.

The other Justices concurred.


text:
    Luke S. Montague, Administrator of the Estate of Charlotte Tompkins, Deceased, v. Lewis A. Haviland, Lewis J. Haviland, and Charles J. Haviland.

      Mortgage — Foreclosure—Decree — Rehearing — Setting aside sale— Redemption.

    1. The claim of a petitioner who seeks to set aside a decree in a foreclosure case, in which he is joined as a subsequent purchaser of a portion of the mortgaged premises, that he failed to appear and defend in the first instance because he supposed that the effort on the part of the complainant was to reach the interest of one of the mortgagors, and not that of the remaining mortgagor and himself, is hardly consistent with the fact that the deed to him was expressly made subject to the mortgage.
    2. Upon the facts stated in the opinion, it is held:
    a — That it is not inequitable, as against the petitioner, that the lands claimed by him should be subjected to the payment of the mortgage sought to be foreclosed; that no fraud in obtaining the decree is shown; and that there is no meritorious defense to the claim of the mortgagee.
    h — That the only debatable question in the record is whether some portion of the interest in the decree is included in the $540 mortgage, executed by petitioner’s wife to the complainant; that upon this subject the testimony is conflicting, and the Court must conclude that the circuit judge was convinced that the claim was sufficiently well supported to call for a trial of that question, and that the petitioner’s delay in moving in the matter was excused; but that the order appealed from went too far, and that the decree should not be set aside, nor should the sale be vacated at this late day except upon such conditions as will finally settle all the rights of the parties, and that the necessary order will be entered accordingly.
    Appeal from Wayne. (Reilly, J.)
    Argued April 6, 1894.
    Decided June 16, 1894.
    Rill to foreclose a mortgage. Defendant Charles JHaviland files a petition praying that the sale be set aside, the decree reopened, the order pro confesso vacated, and that petitioner and his codefendant Lewis J. Haviland be permitted to appear and answer and make their defense. Complainant appeals from an order granting the relief prayed for.
    Order modified.
    The facts are stated in the opinion.

      Lnlce S. Montague, for complainant.

      Edward S. Grece, for defendants.
   Montgomery, J.

Complainant aqipeals from an order of the circuit court in chancery vacating and setting aside a decree, and permitting the defendants to answer to' the bill of complaint and to make defense.

The complainant filed his bill of complaint on the 2d of February, 1888, to foreclose a mortgage given on January 26, 1884, by the defendants Lewis A. Haviland and Lewis J. Haviland to Harry J. Haven, to secure the payment of $800, and transferred by Haven to complainant. The petitioner, Charles J. Haviland, was made a party as a subsequent purchaser. There was personal service of subpoena, and the cause proceeded to decree pro confesso, which was entered April 16, 1888, and enrolled May 17 of the same year. The decree provided for a sale at any time after March 1, 1889. By a subsequent agreement between Charles J. Haviland and complainant, made on December 15, 1888, the time for a sale under the decree was extended by a stipulation which provided that—

“No sale shall be made within one year from the date hereof, nor at the end of one year, provided the said Charles J. Haviland shall pay the interest due on four mortgages held by the said complainant on the premises described in said decree; and that, with the above limitations, said decree shall be and remain in full force and virtue.”

The mortgage covered 200 acres of land, and on February 12, 1886, 120 acres of the land was conveyed to the petitioner, subject to one-half of the mortgage in question. After the decree was entered, the remaining.80 was conveyed to the petitioner’s wife by quitclaim.

The petition filed in the case claims, first, in effect, that petitioner failed to make a defense to the foreclosure for the reason that he supposed the effort was to reach the interest of Lewis A. Haviland, and not that of Lewis J. Haviland or himself. We think that this is hardly consistent with the fact that he received a conveyance of the land in 1886, subject to this mortgage.

It is also alleged that the mortgage was without consideration, and that the petitioner had a conveyance of the land prior to the making of the mortgage. The facts with reference to this averment are that in 1877 the title to the lands was in Adeline Haviland, the mother of petitioner and the wife of Lewis’J.; that, for the nominal consideration of $3,000, Adeline Haviland conveyed to her son William W. Haviland, taking back a lease of the premises, executed by William W. to Adeline, and running during the natural life of Adeline and Lewis J. It appears that there was a further agreement to support Lewis J., Adeline, and an invalid son, Samuel E. Haviland, and, within six years after the death of the survivor of the parents, to pay to Amelia E. and Sarah A'. Noble and petitioner each the sum of $200, and to erect suitable tombstones at the graves of the parents. William W. did not carry out the agreement for support, and a bill was filed in the name of Adeline Haviland, and afterwards revived in the name of Lewis J., which proceeded to a decree by which the rights-of the parties were settled, the court declaring that William W. held the fee of the land, subject, however, to a life estate in favor of Lewis J. Haviland, and an equitable lien for his care and support and for the trusts named in the supplemental agreement. On the 1st of April, 1881, and prior to this decree, Lewis J. quitclaimed to the petitioner and his brother Lewis A. So that, at the time of the execution of the mortgage in question, the title of William W. Haviland had been conveyed to Harry J. Haven, and Haven, by quitclaim, had conveyed to Lewis A. Haviland, who joined with Lewis J. Haviland in executing the mortgage to Haven which was afterwards assigned to the complainant. The only interest, therefore, which the petitioner took under the deed of April 1, 1881, was an undivided half interest in the life estate and in the lien for the support of Lewis J. Haviland. But on the 12th of February, 1886, Charles J. Haviland received a deed from Lewis A. Haviland and wife of 120 acres of the premises, subject to one-half of all the incumbrances upon the entire premises. So that it was not inequitable, as against Charles J. Haviland, that the lands be subjected to the payment of the mortgage. We think that no fraud in obtaining the decree is shown, and that there was no meritorious defense to the claim of the mortgagee.’

The only fairly debatable question in the record is whether some portion of the interest in the decree was included in the mortgage of 154=0, executed by Edith Haviland, wife of Charles J. Haviland, to complainant on the loth of December, 1888. Upon this subject the testimony is conflicting, and we must conclude that the circuit judge was convinced that the claim was sufficiently well supported to call for a trial of that question, and was likewise convinced that the petitioner’s delay in moving in the matter was excused. The record is not wholly devoid of evidence showing an excuse, and, as the order was one within the discretion of the circuit judge, we do not think that, under the circumstances of the case, we should disturb the order in so far as there is fair support for the conclusions of the circuit judge upon the testimony. But. the order went too far. The decree should not be set aside, nor do we think at this late day that the sale should be vacated except upon such conditions as will finally settle all the rights of the parties. An order will be entered that an account be taken, and that the complainant be entitled to charge against the land the amount of the decree in this case, with costs, less any portion of the interest and costs which shall be found to have been included in the mortgage of $540 given in December, 1888, and will also be entitled to charge all of the mortgages covering the land in question, or any portion of the same, held by complainant. Complainant will also be entitled to charge the sum paid to discharge the equity of Amelia E. and Sarah A. Noble, and for any improvements put upon the land by complainant after the date of the sale, in excess of the income derived therefrom, together with the costs of the proceeding in this Court. The costs of the proceeding in the circuit court will abide the event, and if it be established that there was included in the mort-. gage of December, 1888, any portion of the interest money included within the decree in this cause, the petitioner will be entitled to offset against the claim of the complainant the costs of the proceeding in the court below. Dpon the statement of the account, the petitioner will be entitled to redeem from the complainant the premises in question, upon payment of the full sum due, with interest, within 60 days from the date of such decree.

The other Justices concurred.

       This deed was,executed December 15, 1888, and on the same day the grantee executed the $540 mortgage hereinafter referred to.

       The sale took place February 14, 1890, and the premises were bid in by complainant. The petition for rehearing was filed December 29, 1891.


author: McGrath, C. J.

text:
    James Heritage v. Albert E. Armstrong.

      Garnishment — Justices' courts — Jurisdiction—Summons to show cause.

    A judgment against a garnishee in justice’s court, founded .upon proceedings instituted before judgment in the main suit, cannot be sustained upon a summons to show cause issued some 74 days after the termination of the suit against the principal defendant, no continuance having been had under How. St'at. § 8053, even though the garnishee appeared, and pleaded' to the merits.
    Error to Wayne. (Hosmer, J.)
    Argued April 25, 1894.
    Decided June 16, 1894.
    Garnishment proceedings. Plaintiff brings error. Judgment affirmed.
    Plaintiff recovered judgment against the defendant as garnishee, and the proceedings were removed to the circuit by certiorari. The return of the justice to the writ showed that the principal suit and the garnishment proceedings were commenced on the same day; that the disclosure of the garnishee was made, and judgment rendered against the principal defendant, on the return-day of the summons and of the writ issued against them respectively; that the garnishee disclosed that he was indebted to the principal defendant, in a sum greater than the plaintiff’s demand, after the completion of a certain building contract; that no continuance was had under How. Stat. § 8053, which provides that if it shall appear, upon any examination or trial had under the provisions of the garnishee statute, that any sum or sums of money is or are owing and payable from the garnishee to the defendant at some future time or times, it shall be the duty of the court to note the time or times when such money is to become due and payable, and thereupon continue the cause until after the time or times so noted; that, 74 days after the rendition of such judgment, a summons to show cause why a judgment should not be rendered against the garnishee was issued and served upon him; that on the return-day the parties appeared, the plaintiff declared in trover lor money had and received, the garnishee pleaded the general issue, and a trial was had,, and judgment rendered against the garnishee.

      John Galloway, for appellant.

      George W. Coomer, for defendant.
   McGrath, C. J.

The only question involved here is whether a judgment against a garnishee can be sustained upon a summons to show cause, issued some 74 days after the determination of the suit against the principal defendant; no continuance having been had, under How. Stat. § 8053, and the garnishee having appeared, and pleaded to the merits.

These proceedings are special and ancillary. Jurisdiction to render judgment against the garnishee depends upon an observance of the statutory prerequisites. Although appearing in response to said summons, he had the right to insist that no judgment could be rendered against him, except 'upon a summons issued within 30 days after the rendition of judgment in the principal suit. He did not waive that right by an appearance. The appearance could have no effect in the absence of that upon which a judgment must in such, case be predicated. Ettelsohn v. Insurance Co., 64 Mich. 331.

Judgment affirmed.

The other Justices concurred.


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    The People v. Jerome D. Hamilton.

      Liquor traffic— Local option— Sale ■ by druggist — Information-Duplicity.

    1. 3 How. Stat. § 2283c6, absolutely prohibits the sale of spirituous liquor by a druggist to a person who is in the habit of getting intoxicated, whether to be used as a beverage or not.

    2. Each sale of spirituous liquor to a person in the habit of getting intoxicated is, under our statute, a separate offense, and an information which charges the respondent in the same count, with making such a sale on a certain day, and on divers days and times between that day and a later day, is bad for duplicity.

    Exceptions before judgment from Yan Burén. (Buck, J.)
    Submitted on briefs April 25, 1894.
    Decided June 16, 1894.
    Respondent, a druggist, was convicted of selling liquor to a person in the habit of getting intoxicated. .
    Conviction reversed, and respondent discharged.
    The facts are •stated in the opinion.

      Mills, Osborn & Cavanaugh, for respondent.

      A. A. Ellis, Attorney General, and Lincoln H. Titus, Prosecuting Attorney, for the people.

       The respondent was prosecuted under the local option law. For cases fixing the status of druggists in such counties, see note to People v. Ingraham. 100 Mich. 530.

       See People v. Keefer, 97 Mich. 15, holding that an information which charges the respondent in the same count with a sale of liquor to a specified person, and with keeping a saloon where intoxicating liquors are sold and furnished as a beverage, in violation of the provisions of the local option law, is bad for duplicity.

   McGrath, C. J.

The information charges that on the 1st day of March, 1893, and on divers days and times between that day and the 7th day of May, 1893, respondent did sell and furnish to one Bryant certain quantities of spirituous liquors, aggregating in amount, between said dates, three gallons and three quarts of whisky, the said Bryant being then and there a person in the habit of getting-intoxicated, and respondent being then and there a druggist and registered pharmacist.

It is contended that the information does not allege that the' liquor was sold to be used as a beverage. The statute prohibits a sale to a minor, except for medicinal or mechanical purposes, on the written order of the parent •or guardian of such minor, or .to any adult person whatever who is at the time intoxicated, or to any person in the habit of getting intoxicated, or to any person when forbidden, etc., or to any other person to be used as a beverage. Under this statute, a sale to a person who is at the time intoxicated, or to a person who is in the habit of getting-intoxicated, is absolutely prohibited, whether to be used as a beverage or not.

The objection that the information is bad for duplicity is well taken. Each sale to a person in the habit of becoming intoxicated is, under our statute, a separate offense, and, as the offense is not of a continuing character, we do not think that the continuando can be rejected as surplusage. State v. Temple, 38 Vt. 37; State v. Pischel, 16 Neb. 490, 608.

The conviction must therefore be set aside, and the respondent discharged.

The other Justices concurred.

       3 How. Stat. § 2283c6.


author: Grant, J.

text:
    The People v William H. Wade.

      Liquor traffic — Local option — Prosecution under general laiv— Pleading.

    1. The suspension of the general liquor law in a given county by the adoption of the local option law therein will not prevent the trial of a respondent who had been held for trial for a violation of the general law prior to its suspension.
    2. Where, in a prosecution for a violation of the general liquor law, the first three counts of the information charge the respondent with selling spirituous liquors without paying the tax or posting the receipt required by law, and a fourth count charges him with making such sale without having filed the required bond, and the three allegations are combined in a fifth count, and it is admitted that he did none of these things, but his sole defense is that he did not sell spirituous or malt liquors, but only soft drinks, and was not engaged in the liquor trafile, it is impossible to hold that he was prejudiced by the allegation in the information that he had not filed a bond.
    Error to Hillsdale. (Lane, J.)
    Submitted on briefs April 25, 1894.
    Decided June 16, 1894.
    Eespondent was convicted of a violation of tbe general liquor law, and sentenced to imprisonment in the county jail for 90 days. Upon hearing on habeas corpus he was remanded, but ordered to be admitted to bail pending an appeal.
    Conviction affirmed, and record remanded, with directions to carry out the sentence.
    The facts are stated in the opinion.

      Frankhauser Bros, and F. H. Stone, for respondent.

      A. A. Ellis, Attorney General, and Guy M. Chester, Prosecuting Attorney, for the people.
   Grant, J.

Complaint was made before a justice of the peace, February 11, 1892, charging the respondent with having engaged in the business of selling and keeping for sale spirituous and intoxicating liquors, malt, brewed, and fermented liquors, at retail, on February 10, 1892, in the township of Somerset, Hillsdale county, without having-first paid the tax, and having the receipt and notice therefor posted up in his place of business. He waived examination, and was bound over to the circuit court for trial. The information contained five counts, the first three charging him with selling without payment of the tax or the posting of the receipt, the fourth charging him with the sale of liquors without having filed the bond required by law, and the fifth combining the three allegations. He was convicted. Three objections are now made against the validity of the judgment, viz.:

1. That the information charged two separate and distinct offenses, upon one of which he had had no examination, and that the prosecuting attorney should have been required to elect upon which count he would proceed.

2. That the local option law was in force in Hillsdale county at the time of the trial, though the offense was committed and the arrest made several months prior thereto.

3. That the failure of the court to grant a new trial was an abuse of judicial discretion.

The law requires three things as conditions precedent to entering upon the business of retailing spirituous and malt liquors, — the execution and filing of a bond duly approved by the proper authorities, the payment of the' tax, and the posting of the tax receipt in the place where liquors are to be sold. One is not entitled to the receipt without the filing of the bond. Attorney General v. Huebner, 91 Mich. 436. It is not to be presumed that county treasurers will violate the law, and issue tax receipts before the conditions precedent have been complied with. Nor can it be presumed, as a matter of law, that a liquor dealer will obtain the receipt without having filed his bond. The proofs in this case establish the fact that the respondent paid no tax, filed no bond, and obtained no receipt. It is admitted that he did none of these things. The charge was that he was unlawfully engaged in the liquor traffic. ‘ While he put in no' evidence, it appears that his sole defense was that he did not sell spirituous or malt liquors, but only,soft drinks, and that he was not engaged in the liquor traffic. It is therefore impossible to hold that he was prejudiced by the allegation in the information that he had not filed a bond. Errors which cannot possibly create any prejudice to the rights of one charged with crime ought not to, and cannot, operate as a ground for a new trial.

The trial of this case occurred September 15, 1892. Upon the trial, no proof was offered to establish the adoption of local option, nor was the point made that it had been adopted by the people of Hillsdale county. It is therefore too late to raise that question in this Court.

The sole point urged as an abuse of judicial discretion in denying a new trial is that the judgment was erroneous because the local option law had been adopted before the trial. We think there was no abuse of judicial discretion. The court, in refusing a new trial, used the following language:

“Here is a man that I think is guilty, under the evidence in this case, of as willful and mean a violation of law as it has been my experience in a court of justice to see disclosed, with its evil effects as far reaching as any case to which the attention of the court has been called.”

The record fully justifies this conclusion.

This point has, however, been fully argued by counsel,, and, inasmuch as there are other cases pending in some of the circuits dependent upon a determination, we will dispose of the question. The local option law does not repeal the general liquor law of the State. One of the objects of that law expressed in the title is “to suspend the general laws of the State relative to the taxation and regulation of the manufacture and sale of such liquors in the several counties of this State under certain circumstances.” Section 1 of the act makes" such sales unlawful so long as the resolution of the supervisors after adoption •remains unrepealed. Section 2 declares that, on and after the 1st day of May next following the adoption, the general law shall be suspended and superseded so far as relates to that county. Suspension is not repeal. Should the people of such county subsequently vote to dispense with local option in the county, the general law, without further action, would take its place. The suspension of the general law in this manner does not affect its operation upon actions commenced and rights of action accrued prior to the adoption.

Conviction affirmed, and the record remanded, with directions to carry out the sentence imposed by the court below.

The other Justices concurred.


text:
    The People v. Frank Stanley.

      Liquor traffic — Identity of respondent — Evidence—Opinion—Res gestae.

    1. Where, on the trial of a respondent for the illegal sale of liquors, it appears that the sales were made in the evening from a buggy, and one of the purchasers, after testifying that he was within three feet of the person in the buggy when he purchased the liquor, testifies that he thought at the time that the man in the buggy who sold the liquor was the respondent, for he heard his name spoken, the fair inference is that the witness refers to the time when he made the purchase, and this testimony is admissible as a -part of the res gestae.

    2. Certain witnesses testified that they were within three or four feet of the man in the buggy when he sold them liquor. And it is held that it was competent for them to testify further that it was i their impression, from what they saw of the occupant of the buggy, that it was the respondent.
    3. One witness, who purchased a bottle of beer of the man in the buggy, testified that it was his impression that it was the respondent from whom he purchased the beer, but that such impression was gained wholly from what he heard the boys say at the time. A motion to strike out all of his testimony was denied. And it is held that, if the motion had been directed to the striking out of the testimony as to the impression of the witness regarding the identity of the party, it should have been granted, — -not because the statements of the boys, made under the circumstances they were, right at the • buggy, and as a part of the occasion of purchasing the beer, were not admissible as a part of the res gestae, but because the jury should have been left to draw whatever inferences might be drawn from the facts testified to; but that the motion was broader than this, and sought to exclude the entire testimony of the witness, part of which was admissible, and was properly denied.
    Exceptions before judgment from Van Burén. (Buck, J.)
    Submitted on briefs April 25, 1894.
    Decided June 16, 1894.

      Respondent was convicted of an unlawful sale of liquor in a local option county.
    Conviction affirmed.
    The facts are stated in the opinion.

      Bréele Bros., for respondent.

      A. A. Bilis, Attorney General, and Lincoln H. Titus, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of an unlawful sale of liquor in the township of Waverly, Van Burén county, on the highway, in the night-time. There are numerous assignments of error in the record, but the allegations of error can be easily and readily grouped.

The prosecution proved by numerous witnesses the fact that sales of liquor were made on the occasion' charged in the information. The question in doubt was the identity of the respondent with the person who made the sales. It appeared by the testimony of the witnesses that the person who made the sales drove to the vicinity of where a dance was being held, and the sales were made from his buggy. The witnesses called by the prosecution were very evidently unwilling witnesses. There was some moon. Those who made the purchases of liquor were within three or four feet of the person in the buggy, and yet were very reluctant to express any opinion as to the identity of the party. The first witness upon this branch of the case was Mr. Stowman, who testified:

I just called for fog, and got beer. That was all there was said. The party in the buggy made no reply, that I know of. I paid him 25 cents for it, — a 25 cent piece. It was the only one I had. I took no notice of the horse. I was within three feet of the man.
“ Q. Mr. Stowman, do you want this court and this jury to understand that you were within three feet of this man on this night, and didn’t know who it was?
“A. Well, I couldn’t prove who it was.
“ Q. I am not asking you to prove who it was.
A. Then I can’t tell you who it was. I couldn’t swear who it was, to be positive of it. I couldn’t swear, to be positive, who it was. * * *****
“ Q. Who did you think it was, that night?
“A. I thought it was Frank Stanley, for I heard his name spoken. That is all the reason I knew it was him.”

A motion was made to strike out this answer, but it was denied, and a further question put:

“Who did you think it was, when you bought this beer the first time, — at the time you bought it?
“A. I didn’t know who it was. Just in the light, as much as I could .see, I thought it was Frank.
“Q. Frank Stanley?
“A. Yes, sir; that is all I know, — that is, from what I thought.
“Q. You judged from what you saw of this man in the buggy?
“A. Yes; from what I could see. It was very dark,— quite dark, in the shadows of the trees. There was a little moonlight. It was under a shadow of a tree, and it was quite dark there.
“Q. And you say at that time you thought it was Frank Stanley?
“A. I think so.”

On cross-examination he said, in answer to the question, — ■

“If it hadn’t been for anything you heard said by other parties there that night, would you have thought it was Frank Stanley?
“A. I don’t know as I would. I might, and I might not.
“Q. You heard parties say it. was Frank. Stanley, did you?
“A. Yes, both before and after I got the beer.”

We think the fair inference is that the testimony as to the occasion when he heard the party in the buggy called “Frank Stanley” was as to the time when the purchase was being made, and a part of the res gestae. Subsequently, when the witness Dolbee was on the stand, his testimony that he heard parties say it was Frank Stanley, upon its being ascertained that this was before they went-out to the buggy, was stricken out; so that the circuit judge must have understood that the statements of the witness Stowman, as to the time when the party was called “Frank Stanley,” .related to the precise occasion when the liquor was sold.

Other witnesses were called, and testified that it was their impression, from what they saw of the party in the buggy, that it was Frank Stanley. This testimony was objected to, and error is assigned upon its admission. But the testimony was competent. It is not necessary that witnesses shall swear to a fact with certainty. If, from their opportunity of judging of the identity, their opinion is of value, it is receivable. We think there was sufficient to admit the opinion of the witnesses in the present case. See Long v. State, 95 Ind. 481; State v. Harr, 38 W. Va. 58.

One witness was called who testified to his impression, based upon what he heard the parties say. He testified that all he knew about the identity of the party was what he heard the boys say around there. He was then asked the question:

“Did you have any impression since, who it was, when you saw him there in the buggy?
“A. I didn’t, not at the time, then; no, sir.
“Q. Did you have any impression since, who it was?”

This was objected to, and his answer was:

“ Why, it was my impression it was Frank Stanley, from what I heard the boys say. That is all I know about it. I couldn’t swear it was him.”

On cross-examination he further testified that the only impression he had was the one gained from what he heard the boys say. A motion was then made to strike out the whole of the testimony of the witness, but this motion was denied.

If the motion had been directed to the striking ont of the testimony as to the impressions which the witness had,, after it had appeared definitely that they were based wholly upon what he had heard said, it should have been granted; not because the statements as to who the party was in the buggy, made under the circumstances they were, right at the buggy, and as a part of the occasion of purchasing the beer, would not be admissible as a part of the res gestae, but because the jury should have been left to draw whatever inferences might be drawn from the fact. But the motion was broader than this, and sought to exclude entirely the testimony of this witness, including that which was, as before stated, competent; and the attention of the judge was not specifically called to the expression of the opinion after it had definitely appeared that there was nothing upon which the witness could base his opinion except the fact that the parties, at the time of the transaction, called the party in the buggy “Frank Stanley.” If this question were properly raised, we should hesitate to reverse the case on this ground; for, taking the testimony of the witness as a whole, the jury would hardly be left to infer that the testimony of the witness had any other effect than simply that contained in the statements that when he bought the liquor -the party in the buggy was spoken of as Frank Stanley.

The respondent was not entitled to an instruction that the people had failed to make out a case. On the contrary, the undisputed testimony tended to show the idem tity of the party who committed the offense, with the respondent. In such a case the question is for the jury. People v. Henshaw, 52 Mich. 564.

The conviction is affirmed.

The other Justices concurred.


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    The People v. George Brooks.

      Constitutional law — Regulation of fishing — Title of act — Due process of law — Judicial notice.

    1. Act No. 111, Laws of 1889, entitled “An act to protect fish and to regulate fishing in the waters of this State, by providing close seasons for certain kinds of fish, by prohibiting the catching of fish in certain specified ways, by prohibiting the catching of fish of certain sizes and in certain waters and for certain purposes, by prohibiting the obstruction of the free passage of fish, and by prohibiting the sale of certain kinds of fish, and to protect persons engaged in fish culture,” has only one general purpose, which is to regulate fishing, and the including in such general purpose of that of protecting those incidentally deriving benefit from such regulation is not an infringement of article 4, § 20, of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title.
    2. The contention of respondent that his land which abuts on the lake in which he is 'accused of illegally fishing, and his nets and paraphernalia used in fishing, are made less valuable by depriving him of the right so to fish, and that as a result he is deprived of his property without due process of law, is ruled by People v. Collison, 85 Mich. 105, where it was held that, by reason of the migratory habits of fish, their ownership is in the whole people of the State, and no individual has any property right in them until they have been subjected to his control; that to fish is a privilege accorded by the State, and the question of individual enjoyment is one of public privilege, and not of private right.
    8. The provision of the act which authorizes the State Board of Pish Commissioners to give permits to any person to catch or take fish from the waters, at such time and in such manner as the commission may direct, for the purpose of propagation, does not confer upon the commission legislative power, but is an exception from the enacting clause, excepting the taking of fish for the purpose of propagation under such restrictions as it is entirely competent for the Legislature to prescribe.
    4. The Court will take judicial notice of the existence of such a body of water as Lake St. Clair.

      Exceptions before judgment from Macomb. (Canfield, J.)
    Argued April 25, 1894.
    Decided June 16, 1894.
    Eespondent was convicted of fishing with a net in the waters of Lake St. Clair, contrary to the provisions of Act No. Ill, Laws of 1889.
    Conviction affirmed.
    The facts are stated in the opinion.

      Franklin P. Monfort (Fldredge & Spier, of counsel), for respondent.

      A. A. Filis, Attorney General, and O. G. Lungerhausen, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of a violation of the provisions of section 5 of Act No. Ill, Laws of 1889. The facts were not in dispute. The respondent owned land adjoining that portion of Lake St. Clair in which fishing with nets is prohibited, and was engaged in the business of fishing opposite the premises with nets.

It is contended on the part of the respondent that the act in question is unconstitutional — First, in that the title is ambiguous, inadequate, and uncertain, and is in violation of section 20 of article 4 of the Constitution; secondly, that the act violates section 32 of article 6 of the Constitution, which provides that no person shall be deprived of life, liberty, or property without due process of law; thirdly, that it violates section 1 of article 4 of the Constitution, in that it delegates to the State Board of Pish Commissioners legislative power; and it is further contended that, even if the act is held constitutional, there is no such water, which the court can take legal cognizance of, as Lake St. Clair.

The title of the act is—

An act to protect fish and to regulate fishing in the waters of this State, by providing close 'seasons for certain-kinds of fish, by prohibiting the catching of fish in certain specified ways, by prohibiting the catching of fish of certain' sizes and in certain waters and for certain purposes, by prohibiting the obstruction of the free passage of fish, and by prohibiting the sale of certain kinds of fish, to protect persons engaged in fish culture, and to repeal inconsistent acts.”

It is contended that the title expresses the purpose to protect fish, the purpose to protect persons engaged in fish culturé, and the purpose to regulate fishing. It is perfectly evident from the title that the act has only one general purpose, which is to regulate fishing. It is true that, included in the general purpose, is that of protecting those incidentally deriving benefit from such regulation. The act does not infringe this constitutional provision. People v. Mahaney, 13 Mich. 494, 495; Kurtz v. People, 33 Id. 281, 282; Stockle v. Silsbee, 41 Id. 615; Wardle v. Cummings, 86 Id. 395; Bissell v. Heath, 98 Id. 472; Davis v. Woolnough, 9 Iowa, 104.

Nor does the statute violate section 32 of article 6, which provides that no person shall be deprived of life, liberty, or property without due process of law. It is argued that the lands of respondent abutting on the lake, and the nets and paraphernalia used in fishing, are made less valuable by depriving the owner of the right to fish, and that this has resulted in depriving the respondent of property. This question is ruled by People v. Collison, 85 Mich. 105, 108, in which case the Court, speaking by Mr. Justice McGrath,, say: individual enjoyment is one of public privilege, and not of private right.”

Defendant James Collison never acquired any property in the fish which frequent Gun lake. By reason of their migratory habits, their ownership is in the whole people of the State, and no individual has any property right in them until they have been subjected to his control. To fish is a privilege accorded by the State, and the question of

See, also, State v. Roberts, 59 N. H. 256; Hooker v. Cummings, 20 Johns. 90.

The whole subject is reviewed in the recent case of Lawton v. Steele by the Supreme Court of the United States, and a statute of the state of New York, regulating the taking of fish from the waters of Henderson bay and Lake Ontario, sustained, and a much more doubtful exercise of police power, by authorizing the destruction by officers of the law of nets used in fishing, and prohibiting actions for damages on account of their seizure and destruction, declared to be within the constitutional power of the legislature. The case is reported in 14 Sup. Ct. Rep. 499.

It is contended that the statute is invalid, as conferring upon the State Board of Fish Commissioners legislative power, in that it authorizes such commissioners to give permits to any person to catch or take fish from the waters, at such time and in such manner as the commission may direct, for the purpose of propagation. This does: not confer upon the commission legislative power. It is an exception from the enacting clause, excepting thé taking of fish for the purpose of propagation under such restrictions as it is entirely competent for the Legislature to prescribe.

The contention that there is no such wafer, which the court can take cognizance of, as Lake St. Clair, is not worthy of serious consideration. The court will take judicial notice of the existence of the geographical subdivisions, and of the existence of such a body of water as this lake.

There was no error in the proceedings. The conviction will be affirmed.

The other Justices concurred.

       3 How. Stat. § 2197/.


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    Edward M. Tackaberry v. Mary C. Tackaberry.

      Pleading — Divorce—Cruelty—Reconciliation—Decree.
    1. Where an original bill for divorce is properly verified under the statute, an objection that an amendment or a supplemental bill, filed by stipulation of the parties, is not so verified, is without force.
    2. An objection, made for the first time on appeal, that the answer to a cross-bill in a divorce case is not sworn to, comes too late.
    3. A husband filed a bill for divorce on the ground of extreme cruelty, and, before any further proceedings were had in the case, both parties relented, and lived together for a few days, when trouble was had, and they again separated, after which the wife filed her answer, making counter-charges of extreme cruelty and drunkenness, and asking that her answer might 'be treated as a cross-bill, and for affirmative relief. And it is held that the reconciliation did not operate to divest the court of jurisdiction, and that the subsequent cohabitation of the parties is not a bar to a divorce upon the ground of extreme cruelty.
    4. The wife was granted a divorce, and appealed, and it was urged by her that the divorce should not have been granted, for the reason that her cross-bill did not expressly pray for such relief, and, further, that — under the rule that, where both parties are guilty of misconduct constituting a statutory cause for divorce, a divorce will not be granted to either — both bills should be dismissed. And it is held that, the defendant having expressly denied all of the allegations of cruelty made by the complainant, and having made counter-charges of extreme cruelty and drunkenness, and having introduced evidence in support of said charges, the court may well have found, under the testimony, that the acts alleged against the defendant were inspired by the complainant’s conduct; and that, no question having been raised as to the sufficiency of the prayer of the cross-bill until after the determination of property rights by the court upon full hearing, nearly four months after the granting of the divorce, defendant’s-objection thereto cannot now be regarded.

      Appeal from St. Joseph. (Loveridge, J.)
    Submitted on briefs April 12, 1894.
    Decided June 16, 1894.
    Bill for divorce. Defendant appeals.
    Decree modified and affirmed.
    The facts are stated in the opinion.

      Newton H. Barnard, for complainant.

      8. M. Gonstantine, for defendant.
   McGrath, C. J.

The parties were married in 1875, and have two children, — a daughter, 6 years of age, and a. boy, 12. They seem to have had more or less of domestic infelicity for some years past. On September 24, 1891, they seem to have concluded that they could not longer-live together, and thereupon made a division of property,, and agreed to live apart. The husband deeded to his: wife 30 acres of land, and gave her some personal property, and two notes, of $200 each, which have been paid. Within a few days thereafter, complainant filed, a bill for an absolute divorce, on the ground of extreme cruelty. After filing the bill, and before any further proceedings were had thereunder, both parties seem to have relented; and they lived together for a few days, when trouble was. had, and they again separated. Afterwards, on November-14, 1891, defendant filed her answer, making counter allegations of extreme cruelty and drunkenness, setting forth that the division of property and defendant's release of her rights was brought about by threats, asking that her answer might be treated as a cross-bill, and praying that, the papers executed by her on September 24 might be set aside, and held for naught; that the complainant's bill be dismissed; and that she might have such other and further relief, etc. In February, 1892, a replication was filed. In June, 1892, a stipulation was filed, permitting complainant to file an amendment to his bill; and such amendment was filed, in which it was recited that it was by way of supplement. It alleged the reconciliation, set up the defendant’s subsequent conduct, and charged the fault of the separation upon her. Defendant answered the .amended or supplemental bill, and a replication was filed. Complainant then answered the cross-bill. A large amount of testimony was taken, upon which the court dismissed complainant’s bill, and granted defendant a divorce under her cross-bill; reserving the questions of costs, of permanent alimony, of whether the conveyances referred to should stand, and of the custody of the children, for further consideration. This determination was announced March 31, 1893. On July 14, 1893, after hearing the parties, the court made a decree awarding the custody of 4he daughter to defendant, and charging defendant with her daughter’s maintenance, giving the custody of the son to complainant, and refusing to set aside the conveyances, ■or to grant further alimony. Defendant appeals. A number of questions are raised, which need not be detailed.

It is clear that the reconciliation did not operate to divest the court of jurisdiction. Defendant afterwards came in, and filed her cross-bill, made counter-charges, and -.upon her proofs the court gave her a decree. Nor was vthe cohabitation a bar to a divorce upon the ground of .extreme cruelty. Even condonation of adultery is but a conditional forgiveness, and a repetition revives the offense. Puter. Mich. Ch. (2d ed.) 561, and cases cited.

• It is insisted that the amendment or the supplemental bill was not verified as required by the statute, in that collusion was not negatived. The affidavit, however, to ;the original bill conforms to the statute in this respect.

It is also contended that the answer to defendant’s cross-bill was not sworn to. This objection comes too late.

It is urged that the divorce should not have been granted, for the reason that defendant’s cross-bill did not .expressly pray for such relief, and, further, that — under the rule that, where both parties are guilty of misconduct which constitutes a statutory cause for divorce, a divorce will not be granted to either — both bills should have been dismissed. Here, however, defendant expressly denied all of the allegations of cruelty made by complainant, and the court may well have found, under the testimony, that the acts alleged against defendant were' inspired by complainant’s conduct. Defendant made counter-charges of extreme cruelty and drunkenness, and several witnesses were called by her to support these charges. The court, in the opinion filed, says that defendant, “under this, answer and the proofs in the case, asks affirmative relief, and that a decree of divorce be granted to her.” A decree was afterwards prepared and filed, presumably by defendant, in accordance with this opinion. Nearly four months after the filing of this opinion, the parties having been fully heard, the court determined the questions reserved, and it was not until after this determination that any question was raised.

It is suggested that the effect of the reconciliation was to avoid the conveyances which had been made; citing Knapp v. Knapp, 95 Mich. 477. That inquiry is not material here. The court granted a decree of divorce, and allowed the question of alimony to remain as the parties had themselves adjusted it.

We think, however, that the court should have made further provision for the support of the daughter, awarded to defendant’s custody. The maintenance of this child by defendant does not appear to have been contemplated at the time of the division of the property. The decree will be modified in that respect, giving to defendant $2 per-week, until the further order of the court, for the care and suppprt of the daughter. In other respects the decree is affirmed. Defendant will recover costs.

The other Justices concurred.