text:
    LONG v. VILLAGE OF DUNDEE.
    1. Taxation — Special Assessments — Municipal Corporations.
    In an equitable action for money had and received, brought against a village to recover the amount of a special paving tax paid under protest, the plaintiff can only recover the excess above the amount properly assessed against his property.
    2. Same — Special Assessments — Paving Tax — Irregularity.
    A suit will not lie to recover taxes paid when the only com- - plaint that can be made is that the proceedings in their levy and collection have been irregular, the remedies by review or appeal being adequate to afford redress.

      3. Same — Paving Tax — Validity of Excessive Levy.
    Under a statute limiting the amount of a tax to five per cent, of the valuation of any parcel assessed, and under proceedings which authorized the collection of one-fifth of the entire special tax for paving the first year; an installment of $18 is payable on the first assessment by an owner of premises assessed at a valuation of $1,800, who cannot, however, recover, where a tender had been made of the excess collected.
    4. Same — Actions to Recover. Taxes Paid — Parties.
    The portion of an excessive levy for a village paving tax, consisting of the fees and expense of making a levy by the tax collector, is not recoverable from the village in the absence of evidence that such amount was reported to the village or became a part of the public fund.
    Error to Monroe; Golden, J.
    Submitted October 22, 1909.
    (Docket No. 153.)
    Decided December 30, 1909.
    Assumpsit by Cornelius E. E. Long against the village of Dundee for money had and received. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      George M. London, for appellant.

      Willis Baldwin, for appellee.
   Montgomery, J.

This action was brought to recover a special assessment imposed upon property of the plaintiff for the purpose of paying in part for paving the street in front of his premises, which assessment was paid under protest. The defendant village is organized under the general statute, 1 Comp. Laws, chap. 87. In the year 1907, the common council directed the making of a special assessment roll to meet 75 per cent, of the cost of paving the district, and directed the assessment to be made according to benefits; also, that the amount assessed against each parcel should be divided into five equal parts, one part to be collected in the year 1907, one part to be collected annually thereafter, until the whole was collected, with interest on such deferred parts, at 6 per cent, per annum. The council further directed that “the valuation of each parcel of land fronting upon said improvement, as fixed by the last assessment roll, the per cent, of benefits received by each parcel, and the amount of money to be collected on account of such parcel, this fiscal year ” be placed upon said roll, and that the entire assessment against any particular parcel should not exceed 25 per cent, of such assessed valuation. The board of assessors were required to report such roll to the council and file the same with the village clerk on or before July 13th. The roll contained the description of the plaintiff’s premises, and the valuation of $1,800 and per cent, of benefit was given. The total amount of tax was given at $110, and the amount assessed against the premises for 1907, $22. The assessment roll was made, reported, and filed, and afterwards reviewed and confirmed by the council, after notice.

In August, 1907, the council ordered the clerk of the village to make and annex to a certified copy of the roll a warrant for the collection of the several amounts named in the said roll for the year 1907. A warrant was thereupon prepared directing the collection of the amount in the column marked, “Amounts assessed against premises, 1907.” The treasurer, with such roll and warrant, called upon the plaintiff and made demand for payment. The plaintiff offered to pay the treasurer the sum of $90, claiming that this sum was 5 per cent, of the valuation of the premises and all that could be lawfully assessed. The treasurer, not being satisfied of his right to accept the money, sought advice, and on his return refused to accept the money, and demanded the sum of $22, which he was ordered to collect. This sum, with costs, appellant then paid under protest. Claim for the return of this money was made and filed with the council, which the council neglected to allow or reject. Before the actual commencement of this suit, however, the village tendered to the appellant the sum of $6.40 in satisfaction of his claim. On the trial a verdict was directed for the defendant, and plaintiff brings error.

The theory of the plaintiff is: That the village treasurer should have been authorized by the warrant to collect the total amount of the assessment for the full five years, which, according to his theory, would be $90; that the assessment for the year 1907 of $22 was excessive, as the limit authorized was $18; that the total assessment of $110 exceeds the 5 per cent, authorized by the village charter; and that the council had no authority to direct the issuance of a warrant to collect. one-fifth of the amount.

The case presented shows that the tax was properly authorized to be spread; but that as assessed it contained an excess over the amount authorized by the statute. This is an equitable action for money had and received. There is no reason for saying that the plaintiff should recover the amount properly assessed against his property which was included in the assessment. The irregularity in imposing a larger tax than was authorized did not excuse the plaintiff from the legal or moral obligation to meet the tax which was in fact assessable and properly spread. This is not an action against the treasurer for trespass, but is brought against the municipality to recover money which it ought not in equity to receive.

“A suit will not lie to recover back taxes paid, when the only complaint that can be made of them is that the proceedings in their levy and collection have been irregular. The fact of irregularity does not establish injustice; there must be something further in the case which either exempts the party from the tax altogether, or which, because of illegality or inequality, deprived the officers of jurisdiction. * * * Irregular action does not necessarily injure the parties concerned; and, where it does, the remedies given by review or appeal are supposed to afford full redress. * * *” Cooley on Taxation (2d Ed.), p. 808.

See, also, Gratwick, etc., Lumber Co. v. Village of Oscoda, 97 Mich. 221 (56 N. W. 600); Minor Lumber Co. v. City of Alpena, 97 Mich. 499 (56 N. W. 926); Godkin v. Township of Doyle, 143 Mich. 236 (106 N. W. 882).

In the present case the village was entitled to collect and receive from the plaintiff $18. It received $22; $6.40 was tendered back before suit was brought. Under section 2845, 1 Comp. Laws, the proceeds of a sale for the collection of taxes are to be applied to the payment of the assessment and a percentage of 5 per centum upon the amount of the assessments for costs and expenses of seizure and sale. This is all the money that, under the statute, finds its way into the hands of the treasurer of the village. There is no evidence that the other costs and expenses were reported to the village or became a part of the public fund. If the plaintiff is entitled to recover in any action these items, it would be in an action against the collector, rather than the village. See Godkin v. Township of Doyle, supra.

The plaintiff has not been compelled to pay an excess over the amount properly assessable and collectible from him, arid is not entitled to maintain this action.

The judgment is affirmed.

Grant, Ostrander, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    SMITH v. BARRETT.
    Easements — Drains — Highways — Waters and Watercourses.
    A bill in equity will not lie to enjoin the township highway commissioner from enlarging a drain under the highway which, for more than fifteen years previous, had obstructed a portion of the natural flow of water upon oomplainant’s premises from the upper proprietors’ land, and no prescriptive right could be gained as against the public to restrict the amount of water which would otherwise naturally descend upon the servient estate.

    Appeal from Eaton; Smith, J.
    Submitted November 9, 1909.
    (Docket No. 12.)
    Decided December 30, 1909.
    Bill by John W. Smith against Orris L. Barrett, highway commissioner of the township of Eaton Rapids, to enjoin the enlargement of a drain. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Garry C. Fox, for complainant.

      Joseph B. Hendee (Huggett & McPeek, of counsel), for defendant.

       As to rights as to flow of surface water, see note to Gray v. McWilliams (Cal.); 21 L. R. A. 593.
      As to rights acquired in an artificial condition of a body of water, see note to Pewaukee v. Savoy (Wis.), 50 L. R. A. 836.

   Ostrander, J.

A highway runs east and west north of complainant’s land. From the northeast comer of the land an intersecting highway runs north. There is also a highway on the west side of the land. Some of complainant’s land is low — he owns 120 acres — and in its vicinity are other low lands. To the west of it are drains; one of them, at least, being a county drain. With one of them is connected a drain or ditch some 200 rods in length, which was dug by complainant, and which extends east and west across his land. Into this ditch is discharged water which flows from lands to the north and the north and east of complainant’s land, which comes to his land in a ditch or drain in the said north and south highway-on the west side thereof. This highway ditch or drain crosses the highway at some distance north of complainant’s land, and extends thence north and east. It is more accurate to say that the highway was constructed over and across a ravine which was a natural creek and drain, the waters of which originally flowed to and upon the land of complainant. At the point at which the highway was built over the ravine there existed, in the year 1880 and thereafter, a 15-inch tile, passing under the roadbed and about 34 feet in length. The tile replaced a log culvert. It was lowered in 1884, taken up and cleaned in 1888 and in 1904. When the water was high, the capacity of the tile was exceeded. The highway roadbed acted as a dam, and not only set back water upon upper proprietors, but was injured by the wash and percolating of the flood waters. In 1906 a sum of money was voted by the township to defray the expense of constructing a 4-foot concrete conduit 34 feet long in place of the 15-inch tile. While engaged in some work preliminary to its construction the highway commissioner was restrained by a temporary injunction issued upon the application of complainant, who filed his bill of complaint to restrain said commissioner and his successors —

" From opening or removing in any manner or to any extent the said fifteen-inch tile culvert so constructed, and being through and across the said north and south highway at a point about eighteen rods north of the north line of said east and west highway, running between sections five and eight of said township, said north and south highway being upon the quarter line of section five thereof; or from taking up or removing said fifteen-inch tile culvert or from constructing in the place of said fifteen-inch tile culvert any other or different culvert of a larger size or capacity than the said fifteen-inch culvert which your orator says was constructed through and across said highway upwards of eighteen years ago; or from in any manner digging or constructing any culvert at any other place along said highway so as to carry the water so accumulating upon the land of the said Daniel J. Young across said highway or upon the land of your orator in any greater quantities than the same can be carried by said fifteen-inch tile culvert now being through and across the said north and south highway hereinbefore described, and that your orator may have such further and other relief in the premises as the nature of this case shall require, and to this court shall seem just.”

Upon the final hearing the court dissolved the injunction and dismissed the bill.

The bill charges a conspiracy between defendant and an upper proprietor to work an injury to complainant by flooding his land. It is conceded that the evidence does not sustain the charge. Beyond this it is the contention of complainant that, while the water carried by the tile and drain may continue as at present to flow upon his land, if the tile is removed and the concrete conduit constructed, the water, in times of flood, will be discharged in shorter time and in larger quantities, beyond the capacity of his ditch, and to his great damage. He asserts that little by little the flow of water in the tile and ditch has been increased by lateral drains and by changing the surface of the land by cultivation and otherwise; that in times of flood the barrier which the highway presents sets back the water to the east and northeast of the tile so that it covers six or more acres of land, and is five or six feet deep in the highway; that the said roadbed and the limited capacity of the tile has been a protection to his land for so many years that he is entitled to have existing conditions continued until'a change can be made which will result in no damage to him. It is claimed that an adequate outlet to complainant’s ditch to the west should be provided as one safeguard; the testimony, some of it, tending to prove that the outlet was not, at the time this suit was begun, adequate.

We are satisfied by an examination of the testimony that if the highway is to be properly protected, a larger opening through and under the traveled way is required. We are also satisfied that the failure of the tile to carry the water has been due in part to the fact that the flow was impeded, in the tile, by accumulation of material carried into the tile by the water, its size and situation preventing removal of such material. We are not satisfied that if the flow of water through the tile was unobstructed it would be a sufficient conduit in times of high water. The natural course of all water naturally finding its way into the ravine and watercourse is to complainant’s land. It is not the case of an attempt to divert by artificial means and cast upon land water which would otherwise flow in another direction to other land. It is the case of the removal of an artificial impediment to the natural flow of water in a natural watercourse. The township authorities are not asserting a prescriptive right to cast upon complainant’s land so much water as the 15-inch tile will carry. As to the natural flow of the water, the complainant’s estate was originally the servient estate, and it is now none the less the servient estate, because public authorities have for some time impeded the natural flow by an insufficient artificial conduit. The highway and the tile drain may have protected complainant’s land, in a measure, from the flow of water which would otherwise have come upon the land. At least it appears to have prevented its arrival at his land, in times of flood, in the volume and the time in which an open watercourse would have delivered it there.

It is possible that the public has gained, by prescription, the right to set the water back upon lands of the upper proprietors. The point is not involved. But even if the public had such a right, counsel refers to no rule, and we know of none, which secures complainant as against the public authorities charged with the duty of maintaining the highway the right, by prescription, to have the natural watercourse forever obstructed as it has been. There is the further consideration that the flow of water through the tile has of necessity been variable, depending upon the quantity and character of the Obstructing material carried into the tile. We do not consider whether complainant may have the right to complain, in a proper action, of the conduct of upper proprietors in turning water into the natural watercourse by artificial means. We are satisfied that he may not prevent the defendant and his successors preserving the highway by .removing the artificial impediment to the natural flow of the water.

The decree is affirmed, with costs to defendant.

Blair, C. J., and Montgomery, Hooker, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    CITY OF ALPENA, for use of BESSER, v. TITLE GUARANTY & SURETY CO.
    1. Municipal Corporations — Public Buildings and Works — Construction Bonds.
    The surety upon a bond given to secure laborers and material-men in the construction of public works (3 Comp. Laws, § 10743), is not liable for labor and materials provided for the benefit of the contractor in repairing his pumps and machinery.
    2. Same — Bond for Construction of Public Works.
    A city which procures a bond from contractors who construct public buildings or works, running in terms to the city for the benefit of materialmen, etc., as obligee, instead of to the people as provided by statute, may bring action on the instrument for the benefit of persons who were intended to receive protection.
    Error to Alpena; Emerick, J.
    Submitted November 9, 1909.
    (Docket No. 8.)
    Decided December 30, 1909.

      Assumpsit by the city of Alpena, for the use and benefit of Herman Besser, against the Title Guaranty & Surety Company upon a statutory bond. A judgment for plaintiff, on a verdict directed by the court, is reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      Luman W. Qoodenough, for appellant.

      O'Brien & Francis, for appellee..
   Brooke, J.

On May 15, 1905, the Murray Company entered into a contract with the city of Alpena, by which the said Murray Company agreed to construct for said city a submerged crib, influent, conduit, and pump well, in connection with the waterworks belonging to said city. Plaintiff’s declaration avers that:

" To secure the payment of all labor performed and material furnished in the building and constructing of * * * according to the provisions of sections 10743, 10744, 10745, 3 Comp. Laws, the said Murray Company executed and filed with the recorder of the city of Alpena, this plaintiff, a bond, * * * [the defendant herein being surety thereon]. That the said Murray Company became and was indebted to the said Herman Besser for work and labor performed and material furnished by him, the said Herman Besser, for said Murray Company, in erecting, building, and constructing the said submerged crib, in-fluent, conduit, and pump well, in the sum of, to wit, $300,” etc.

Under this declaration the use plaintiff, Herman Besser, testified that the Besser Manufacturing Company, of which he was president, had furnished labor and material to the Murray Company to the amount of $298.97; that such labor and material were furnished in repair work; that it went into the dredge, pumps, and machinery used by the Murray Company in connection with the work; that he was unable to say that any of the labor or material went into the work itself. No testimony was offered on behalf of defendant, and a verdict was directed in favor of plaintiff for the amount claimed.

Three reasons are urged by appellant why a recovery should not have been permitted:

(1) That no recovery could be had upon the bond in suit, for the reason that it did not in terms comply with the language of section 10743, supra.
(2) That the trial judge erred in permitting an amendment to the declaration upon the trial by allowing the name of the Besser Manufacturing Company to be substituted in place of that of Herman Besser, as use plaintiff.
(3) That the work done and materials furnished by the use plaintiff were not furnished as a component part of the water system, or any of its parts, but upon repairs of machinery used upon the contract.

The first point was decided adversely to appellant’s contention in the case of City of Alpena, for use of Zess, v. Surety Co., 158 Mich. 678 (123 N. W. 536), where it was held that, construing the bond and contract together, the bond was a subsisting obligation to pay for “the labor and material required,” within the meaning of section 10743, supra.

The second point involved tve do not discuss.

With reference to the third point raised, it becomes necessary to determine for whose benefit the statutory bond is required, and whether the use plaintiff is among those entitled to its protection.

Section 10743, supra, is as follows:

“That when public buildings, or other public works or improvements are about to be built, repaired or ornamented, under contract, at the expense of this State, or of any county, city, village, township or school district thereof, it shall be the duty of the board of officers, or agents, contracting on behalf of the State, county, city, village, township or school district, to require sufficient security by bond, for the payment by the contractor, and all subcontractors, for all labor performed, or materials furnished in the erection, repairing or ornamenting of such building, works or improvements.”

The provision of the bond upon which the claim of the use plaintiff is based is the promise of the defendant to save harmless the city of Alpena, etc., from unpaid claims for “ labor and materials furnished under the contract.” To give to this provision the construction claimed for it by the plaintiff would render the surety liable, not only for the cost of small and incidental repairs to the machinery and plant used in construction (which is the extent of the use plaintiff’s claim in the case at bar), but also for all large changes and improvements in equipment, more or less permanent in character, and perhaps long surviving in usefulness the completion of the contract upon which the equipment was being used at the time the repairs were made. And by a parity of reasoning it might even be said that the surety became responsible for the original cost of the plant, because it was purchased by the contractor to be used upon the contract. We are of opinion that this contention is not tenable, but, on the contrary, think that the term “ labor and materials, furnished under the contract,” means such labor and materials as are necessary to construct the work in accordance with, the contract. This view is supported by reason and authority.

The statute of the United States (28 U. S. Stat. 278 [U. S. Comp. Stat. 1901, p. 2523]) provides that the contractor’s bond shall contain the obligation that the contractor “ shall promptly make payments to all persons supplying him or them, labor and materials in the prosecution of the work, provided for in such contract.” This language is broader than that of the Michigan statute under consideration. The obligation of the surety thereunder was defined in the case of United States, for use of Standard Oil Co., v. Security Co., 21 App. Cas. (D. C.) 369, where the court said in considering liability to the use plaintiff for oil used by the contractor upon machinery employed upon the contract:

“Was the oil supplied in the prosecution of the work within the meaning of the act of congress ? The dredge itself, though costing more, perhaps, than the gross price of the contract, and capable of use in other similar works, public and private, would come under the class of things furnished to enable the contractor to fulfill his contract, for the contract could not apparently be performed without it. The same may be said of the various tools used by the laborers of a contractor in the construction of a public work. These are necessary to accomplish the work, and yet are commonly excluded from the lien of all statutes of the same general nature, where the security is limited to labor and materials only.”

In the case of United States, for use of Briscoe, v. Surety Co., 23 App. Cas. (D. C.) 155, which involved the right to recover for repairs to a dredge used upon the contract, it was held:

" We regard the question as too plain to require any elaboration of argument. As well might the person who constructed the dredging machine in the first instance seek to hold the surety liable, as the person who afterwards makes repairs in order to constitute the machine what it ought to be.”

To the same effect are the cases of United States, for use of Sica, v. Kimpland, 93 Fed. 403; United States, for use of Chapman, v. Surety Co., 23 App. Cas. (D. C.) 153; City of Philadelphia, for use of Taylor, v. Malone, 214 Pa. 90 (63 Atl. 539); Beals v. Deposit Co., 76 App. Div. 526 (78 N. Y. Supp. 584).

We are of opinion that by the statute in question the legislature intended to afford to those who furnish labor or material for public buildings or works the same protection they would have under the general lien laws of the State, had the labor or materials been furnished for a private undertaking. If we are correct in this view, we are left in no doubt as to the construction the statute should receive. In Smalley v. Gearing, 121 Mich. 190, 203 (79 N. W. 1114, 1120), this court said:

“ The equity of a lien claim for labor or materials arises from the fact that the value of the property to which they have been applied has been increased.”

This case was cited and approved in North v. Fence Co., 144 Mich. 557 (108 N. W. 285). See, also, Luttrell & Co. v. Railroad Co. (Tenn.), 105 S. W. 565; McCormick v. Water Co., 40 Cal. 185. A very cogent reason for not extending the protection of the bond to that"class to which the use plaintiff herein belongs is that to do so would tend to impair, if not absolutely destroy, the value of the bond to those who, in fact, did perform labor or furnish materials “in the erection, repairing, or ornamenting of such building, works, or improvements.”

The judgment is reversed, and, as there is no dispute as to the facts, there will be no new trial.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    CITY OF ALPENA, for use of O’BRIEN, v. TITLE GUARANTY & SURETY CO.
    Municipal Corporations — Public Buildings and Works — Statutory Bond.
    Labor performed for a contractor engaged in the construction of a public work, and consisting of time spent in raising a sunken dredge, is in the nature of a repair to machinery of the contractor, and is not secured by the statutory bond under 3 Comp. Laws, § 10743.
    Error to Alpena; Emerick, J.
    Submitted November 9, 1909.
    (Docket No. 9.)
    Decided December 30, 1909.
    Assumpsit by the city of Alpena, for the use and benefit of Michael O’Brien, against the Title Guaranty & Surety Company upon a statutory,bond. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Luman W. Oooclenough, for appellant.

      O’Brien & Francis, for appellee.
   Brooke, J.

This case grows out of the controversy discussed in the case of the City of Alpena, for use of Besser, v. Surety Co., ante, 329 (123 N. W. 1126). The determination in that case is controlling of the case at bar, so far as it is applicable to the facts now before us.

The use plaintiff herein is assignee of nine different claims against the Murray Company for labor performed upon the dredge used by that company in the prosecution of the work under its contract with the city of Alpena. A portion of the time of each of the assignors for which pay is claimed was spent in raising the dredge, so that the work uppn the contract could be continued. We are of opinion that to the extent this claim is based upon labor furnished in raising the dredge recovery must be denied. That labor must be considered in the nature of a repair. For the labor performed in operating the dredge while it was employed upon the contract the use plaintiff is entitled to a judgment.

Judgment reversed, and a new trial ordered.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    CITY OF ALPENA, for use of BEAUDRIE, v. MURRAY CO.
    Municipal Corporations — Public Buildings and Works — Bond for Construction.
    A recovery may not be had upon the statutory bond given by a contractor engaging in the construction of public buildings and works, for the value of cartage of supplies to and from a dredge which was used in the performance of the contract.
    Error to Alpena; Emerick, J.
    Submitted November 9, 1909.
    (Docket No. 10.)
    Decided December 30, 1909.
    Assumpsit by the city of Alpena, for the use and benefit of Thomas Beaudrie, Eugene H. Furbush, and others, against the Murray Company, principal, and the Title Guaranty & Surety Company, surety, upon a statutory bond. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant surety company on writ of error.
    Reversed, and new trial ordered except as to use plaintiff Furbush.

      Luman W. Goodenough, for appellant.

      O’Brien & Francis, for appellees.
   Brooke, J.

This is a companion case to that of the City of Alpena, for use of O’Brien, v. Surety Co., ante, 334 (123 N. W. 1126), and is controlled thereby, except as to the claim of Eugene H. Furbush, which was for cartage of lumber, coal, machinery, and other supplies to and from the dredge used by the Murray Company in the prosecution of its work under the contract. This use plaintiff is not entitled to the protection of the bond under our determination in the case of the City of Alpena, for use of Besser, v. Surety Co., ante, 329 (123 N. W. 1126). See cases there cited.

Judgment reversed, and a new trial ordered as to all use plaintiffs except Furbush.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    NISBETT v. MILNER.
    1. Reformation of Instruments —Equity—Mistake—Cloud on Title — Taxation.
    On a bill to redeem from tax deeds held by a defendant to whom the land owned by complainants had been conveyed through a mistake of a prior grantor in complainant’s chain of title, the equitable right to reform the deed is enforceable in favor of the, complainants who made no claim through the erroneous instrument, but obtained title through a mortgage foreclosure and mesne conveyances from the grantor who committed the error.
    2. Same — Jurisdiction of Equity.
    Equity having acquired jurisdiction on one ground will retain it for the purpose of giving such relief as will dispose of the controversy.
    3. Same — Defenses.
    Reformation is not barred by the defense that the complainants are not in a position to rectify tlje error by conveying the land which the deed should have conveyed, where the mistake had been in effect corrected, by a subsequent conveyance to the grantee in such deed, of the property which the parties intended to convey.
    4. Same — Removal of Cloud — Bill to Quiet Title.
    While a complainant in a bill to remove a cloud from the title of occupied lands must show that he is in possession or the defendant is not, such want of possession does not preclude relief in a case coming under another recognized rule of equity jurisdiction.
    5. Same.
    The jurisdiction of equity, exclusive of any statutory provisions on the subject, to set aside deeds and other legal instruments which are a cloud upon the title to real estate and to order them to be delivered up, is fully established.
    Appeal from Mecosta; Perkins, J., presiding.
    Submitted November 10, 1909.
    (Docket No. 139.)
    Decided December 30, 1909.
    Bill by William P. Nisbett and another against George W. Milner and others to redeem from a sale of land for taxes, and to quiet title. Prom a decree for defendants, complainants appeal.
    Reversed, and decree entered for complainants.

      Cogger & Broomfield, for complainants.
    Smedley, Hall & Freeland, for defendants.
    The bill of complaint in this cause was filed to establish and enforce the right of complainants to redeem, from a certain tax deed, dated September 5, 1901, given by the auditor general, to defendant George W. Milner. The property directly involved is a strip of land 20 feet north and south, and 100 feet east and west, out of the southeast corner of lot 14, block 20, of the original plat of the city of Big Rapids. This land, together with other lands, was purchased by complainants of M. Servetus Dart by warranty deed, dated October 30, 1900, for $20,100. The bill likewise (in effect) prays for the removal of certain clouds upon the title to said strip, occasioned by—
    (1) The recording of a deed on February 13, 1896, dated December 22, 1891, from Daniel F. Comstock and wife to Chester W. Comstock and wife.
    (2) The recording of a mortgage dated and recorded December 21, 1896, from Chester W. Comstock and wife to George Young.

      (3) The recording of a quitclaim deed December 31, 1902, dated March 11, 1901, from Chester W. Comstock and wife to George "W. Milner and wife.
    These instruments all include other property than the land in suit, and, for the purpose of removing the cloud which they constitute upon complainants’title, they ask that they be reformed or set aside, so far as they purport to convey any interest in the strip in question.
    The foregoing diagram will assist to a better understanding of the matter in dispute.
    By this diagram, it appears that blocks 20, 21, and 22 lie close together, running from west to east, and separated only by the north and south streets. It also appears as to blocks 20 and 22 that they were similarly platted; that the northeasterly portion of each block was divided into four lots, viz., 13, 14,15, 16; that each of these lots in block 20 was of the same area and in the same position as the corresponding number in block 22; that there was carved out of the southeasterly corner of lot 14 of each block a strip 20 by 100 feet, said strips being identical as to area and position on each lot 14.
    Prior to December 22, 1891, Daniel F. Comstock was the owner in fee simple of lots 13, 14, 15, and 16 in block 20, and lots 13,14,15, and 16 in block 22. He also owned lots 1, 2, and the north half of 3 in block 20. At that time, Daniel Comstock had commenced the construction of a building, covering lots 1, 2, and the north half of 3, and the wést 50 feet of lots 14, 15, 16, and part of 13, all in block 20. At the same time, he had commenced to build a shed 35 by 75 feet, on the southeast corner of lot 14, block 20. This shed covers the easterly 75 feet of the strip in dispute, but is 15 feet wider than the strip, and therefore covers an additional portion of said lot 14, lying immediately north of said strip. At this time, Daniel F. Comstock lived in his home, located on parts of lots 14,15, and 16, block 22, and Chester Comstock, his son, lived in a house located on parts of lots 13 and 14, block 22. (See plat.)

      This being the situation, on December 21, 1891, Daniel F. Comstock executed a deed to Chester Comstock and wife, containing the following description:
    “ A strip of land, 100 feet long and 50 feet wide, off east end of lot 13, block 22, and a strip 20 feet wide and 100 feet deep, off lot 14, or the southeast corner of said lot 14, block 20”

    On the same day, Daniel executed a deed to his wife, Dolly, containing the following description:
    “Lots 13, 14, 15 and 16, block 22, except lands deeded to Chester W. Comstock, which is part of lots 13 and 14.”
    On July 12, 1899, Dolly Comstock executed a deed to Chester W. Comstock and wife, containing the following description:
    “Also (a piece of land) 100 feet long east and west, by 20 feet north and south, out of the southeast corner of lot 14, block 22.”
    On December 21, 1896, Chester W. Comstock and wife gave a mortgage, covering the strip in question and other lands, to George Young, his father-in-law, which mortgage was assigned to defendant George W. Milner March 1, 1901. On March 11, 1901, Chester W. Com-stock and wife executed to defendants George W. Milner and Jennie M. Milner, his wife, a quitclaim deed covering the disputed strip.
    Such of the foregoing instruments as relate to the 20-foot strip, on lot 14, block 20, together with the tax deed, from which complainants seek to redeem, constitute defendants’ paper title to the strip in dispute.
    Complainants’ title thereto is based upon the following instruments:
    (1) A mortgage from Daniel F: Comstock and wife to the Michigan Trust Company and Michael Brown, dated October 31, 1896, covering all of lots 13, 14, 15, and 16, block 20, also other lands.
    (2) The assignment of said mortgage by the mortgagees to the Michigan Trust Company, as receiver for the Mecosta County Savings Bank, dated November 21, 1896.
    (3) The commissioner’s deed on the foreclosure of said mortgage, dated December 21, 1898.
    (4) Deed from Michigan Trust Company to M. Servetus Dart and wife, by order of the court, dated October 29, 1900.
    (5) Deed from M. Servetus Dart and wife to complainants, dated October 30, 1900.
    The record discloses the following facts: That defendant George W. Milner is the son-in-law of Daniel F. Comstock. That Jennie M. Milner is the daughter of Daniel and sister of Chester. That both said defendants lived for a time with Daniel after the failure of the Mecosta County Savings Bank. That defendant Milner knew there was something wrong about the description in the deed from Daniel to his son Chester, dated December 21, 1891. That he knew of the giving of the mortgage by Daniel to the Michigan Trust Company, knew of its foreclosure, and of the deeds to Dart and from Dart to complainants, and he knew these various instruments covered the strip in dispute. It is, in effect, conceded of record that a mistake was made in the description in the deed from Daniel to his son Chester, and that it was Daniel’s intention to convey the 20-foot strip of lot 14, block 22, instead of the corresponding strip of lot 14, block 20. Since the purchase of the property by complainants, there has been a joint possession by them and defendants of the shed, located in part upon the disputed strip, and the taxes thereon have been paid by defendant. Complainants have sought to secure from defendants a quitclaim deed, and have offered to redeem from the tax deed, and repay the taxes. This being refused, they have filed their bill of complaint. From a decree dismissing the bill, complainants appeal.
   Brooke, J.

(after stating the facts). In the foregoing statement of facts, we have said that it is, in effect, conceded of record that a mistake was made in the deed from Daniel to Chester. If it should be urged by counsel for defendants that the admissions of counsel do not amount to such concession,.we have no hesitation in holding that there was a mistake in said deed. It is unnecessary to state at length the reasons which impel to this conclusion. A study of the instruments themselves, and a knowledge of the location of the house Daniel was deeding to Chester, will afford an absolute demonstration of fact.

. It is urged on behalf of defendant that complainants cannot maintain this suit to reform a deed, because they do not claim under the deed sought to be reformed. Complainants take the position that their bill is filed primarily to secure to them the right of redemption, and, incidentally, to remove certain clouds upon their title, and that equity having acquired jurisdiction upon one ground will retain it for the purpose of giving such relief as will dispose of the controversy, and in this view we agree. See George v. Light Co., 105 Mich. 1 (62 N. W. 985), and cases there cited; Hall v. Nester, 122 Mich. 141 (80 N. W. 982).

It is clear from the record that when Daniel F. Com-stock executed the mortgage to the Michigan Trust Company, in which was included this strip in dispute, he believed he was the owner thereof, and that in his deed to Chester he had conveyed title to the corresponding strip on lot 14, block 22.

It is equally clear that as between himself and Chester he had a right to file a bill to reform the deed to Chester, or to have it declared inoperative as to the strip in dispute. We have no hesitation in holding that this equitable right passed to the mortgagee, and from the mortgagee, through mesne conveyances, to the complainants. It may be said that such relief could not be granted to Daniel’s suit, unless he had given to Chester the land intended, and it is urged that these complainants are not entitled to the relief because it is not in their power to convey to Chester’s successors in title (the defendants) the corresponding strip on lot 14, block 22. The answer to this claim is that Chester got title to the last-named strip by deed from his mother, dated July 12, 1899, she having taken title thereto, on the same day Chester got his deed. It is apparent, therefore, that the mistake was rectified, so far as it could injuriously affect Chester, but it was not rectified by Chester redeeding to his father the strip erroneously included in the deed to him. Had he done so, such title as he possessed would of course have immediately vested in the mortgagee.

It is argued by defendants’ counsel that complainants were not in possession of the strip, and that defendants were in possession; therefore, that complainants could not file a bill to remove a cloud upon the title — citing section 448, 1 Comp. Laws. We think the record shows a joint possession of the land in question, and, in any case, a party having an equitable cause of action, coming within any recognized rule of equity jurisprudence, may enforce the same in equity, whether in or out of possession. Rowland v. Doty, Har. Ch. (Mich.) 3; Jones v. Smith, 22 Mich. 360; Waterman v. Seeley, 28 Mich. 77; King v. Carpenter, 37 Mich. 363; Eaton v. Trowbridge, 38 Mich. 454; Cleland v. Casgrain, 92 Mich. 149 (52 N. W. 460).

In Rowland v. Doty, supra, the court said:

“ The jurisdiction of this court (exclusive of any statutory provision on the subject) to set aside deeds and other legal instruments, which are a cloud upon the title to real estate, and to order them to be delivered up to be canceled, is fully established.”

It is claimed, and the learned circuit judge held, that:

“ Defendants George Milner and Jennie M. Milner were in actual and undisputed possession of the lands purchased at said tax sale for a period of more than five years from September 5, 1901, the date of the auditor general’s deed, and before the commencement of this suit, and, by reason thereof, the said sale became absolute.”

This we think was erroneous. The record shows that defendant did not go into possession under the tax deed, but was in possession before he obtained his deed. That such possession as he had was joint with that of complainants, and that, although he had actual notice of complainants’ claim to the land, he served no notice to redeem upon them though he did serve such notices upon Chester W. Comstock and George Young, whose title he had then already acquired. Under these circumstances, his possession is no protection.

The decree is reversed, and a decree will be entered in this court, permitting complainants, upon repayment to defendants of taxes paid by them, together with interest thereon, to redeem from said tax deed, and setting aside and holding for naught the three instruments first described herein, so far as they relate to the lands in dispute.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    JEWETT v. BRYANT.
    1. Evidence — Expert Testimony — Comparison of Handwriting —Competency op Witness — Statutes.
    Testimony as to the identity of the maker’s signature on a promissory note, based upon witness’ knowledge of the writing of the maker obtained as supervisor from statements of assessable property made under 1 Comp. Laws, §§ 3841-3846, is not rendered incompetent by the provisions of the statute, which prohibit the use of such tax statement for any purpose except the assessment of taxes or the enforcement of the provisions of the act.

      2. Same — Cross-Examination.
    Prejudicial error is not committed by a trial court, which, excludes the testimony of a witness, asked on cross-examination whether he did not tell his attorney in another proceeding that the same maker’s signature on another note held by an estate, of which the witness had been executor, was not genuine.
    3. Husband and Wife — Principal and Agent — Bills and Notes.
    In the absence of testimony tending to show that a wife was authorized to sign a note in behalf of her husband, or borrow the amount in question, it is error to submit to the jury the question of her agency under the testimony that he had paid other notes so signed by her, to avoid trouble, and in the absence of a showing that he received any benefit from the transaction. >.
    4. Same — By Estoppel — Reliance on Apparent Authority. '
    The payee of a note who does not know that the maker holds out his wife as an agent to execute paper,' and who takes the note in reliance on the genuineness of the maker’s signature, may not recover on the theory that she relied on the wife’s agency to execute the instrument.
    5. Same — Agency by Estoppel.
    One who holds out another as his agent to borrow money is estopped to deny the authority as against another who knows of and relies on the apparent authority.
    Error to Lenawee; Lockwood, J., presiding.
    Submitted November 12, 1909.
    (Docket No. 146.)
    Decided December 30, 1909.
    Assumpsit by Harriett Jewett, executrix of the last will and testament of Alpha Phelps, deceased, against Wallace Bryant, administrator of the estate of Samuel Bryant, deceased, on a promissory note. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Earl O. Michener and Grant Fellows, for appellant.

      Burton L. Hart and Smith, Baldwin & Alexander, for appellee.
   Hooker, J.

Bryant was a farmer; his wife’s name being Helen. The record shows that she approached a Mrs. Phelps for a loan of $600 to send to her adult daughter, who was married and lived in the West. The loan being agreed upon, Helen Bryant offered her own note, which Mrs. Phelps declined to accept unless Mr. Bryant would sign it. Helen went away and afterwards returned with the note in suit, which bore her own and Bryant’s names, and the money was paid to her by Mrs. Phelps, who took the note. Bryant’s name was claimed to be a forgery, i. e., it was not signed by him, nor was it signed with his knowledge or consent. The execution of the note declared on was denied as permitted by the rule. A verdict was rendered in favor of the plaintiff, and defendant has appealed. It may be stated that the original parties to the action are dead, and the same has been revived in the names of legal representatives. We will, however, use the words “plaintiff ” and “defendant” as referring to the original parties. Counsel divide the questions as follows :

(1) Concerning the admissibility of certain testimony.
(2) Whether there were any questions for the jury except the genuineness of the signature.
(3) Was there proof of Helen’s agency through estoppel ?

The plaintiff claimed that the name was Bryant’s genuine signature. One Baldwin testified that he was a supervisor, and that the only opportunity he had had to view signatures was taking statements of different men through the township. He saw them write their signatures. Upon this foundation he was allowed to compare the name on the note with an admittedly genuine signature and express the opinion that they were both made by the same person. The objection made was that “the statute relating to tax statements prohibits their use for the purpose of qualifying him as a hand-writing expert.” The statute (1 Comp. Laws, § 3846) is as follows:

“ But no such statement shall be used for any other purpose except the making of an assessment for taxes as herein provided, or for enforcing the provisions of this act.”

This court, speaking through Mr. Justice Grant (having this statute under consideration), said in the case of Williams v. Brown, 137 Mich. 569, 573 (100 N. W. 786, 787):

“ The purpose of the statute evidently is to make these statements privileged except for the use specified in the statute. The language of the statute is emphatic and unambiguous. It prohibits their use for any other purpose than the making of an assessment and enforcing the provisions of the law.”

This seems to us a novel application of the statute and decision, and we think that there was no error in holding that a man could testify from knowledge of penmanship thus obtained, so long as his testimony did not refer to any statement or the person who made it.

One Younglove testified that some years before he had seen Bryant write his (the witness’) name on a petition, and expressed an opinion that the disputed signature was genuine. He had also been executor of an estate that held a similar note with a disputed signature, and in defendant’s lifetime he had brought suit thereon against the defendant, who appeared and denied the execution of the note, and when it came to trial the case was discontinued and witness paid the costs. He claimed that his attorney discontinued the cause without his knowledge, consent, or authority. He was then asked if he did not tell his attorney in that case that in his judgment that note did not bear Bryant’s genuine signature. The answer was excluded as a collateral matter. "We are of the opinion that the case should not be reversed for this ruling.

Agency. The plaintiff claimed that there was testimony showing that Helen was the authorized agent of her husband with authority to make this note and notes generally; also, that, under the proof, he should be held to be estopped from denying her authority in this instance, and one or both of these questions were submitted to the jury. We are satisfied from our examination of the record that there is no evidence tending to show that Bryant authorized his wife to borrow this money or gave his. note therefor. We are also convinced that there is no testimony warranting a finding that he ever gave her authority to borrow money generally upon his credit or to give his paper for loans. There is testimony that she had done it before, and that he had paid notes so made to avoid trouble and scandal; but there is no testimony that she was authorized to sign his name to notes generally or to borrow money for her own purposes, and there is no evidence indicating that he received this money or any benefit from it. We have gone carefully over the testimony and find nothing from which a legitimate inference can be drawn that Mr. Bryant ever gave his wife general authority to borrow money for her own purposes or to give paper in his name therefor.

Estoppel. Upon the question of estoppel, we understand that one who holds out another as his agent to borrow money is estopped to deny the authority as against one who knows of and relies upon such holding out in making a loan. If there is anything in this record that can be construed as a holding out of his wife, as one authorized to borrow money upon his credit, and to execute and give notes bearing his name, it does not appear that the plaintiff knew and relied upon it in making this loan. On the contrary, she acted upon the belief that she was getting a note bearing Bryant’s genuine signature. There was no holding out to her, nor was there any understanding on Mrs. Phelps’ part, that she was loaning money to one held out as an agent.

We think the court erred in submitting these questions to the jury, and that the only question to be submitted was that of the genuineness of the signature. The law upon these questions is elementary, and it is unnecessary to cite authorities.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Ostrander, Moore, and Brooke, JJ., concurred.


text:
    PEOPLE v. POOLE.
    1. Criminal Law — Trial—Conduct of Judge — Instructions to Jury.
    The following charge in a prosecution for manslaughter is open to the objection that it tends to inflame the minds of the jury: “This awful deed was committed in the broad light of day in the open streets of Ypsilanti, in bold and wicked defiance of all human and divine law. * * * So far as we know, on this April morning life was as sweet and precious to this poor wife and mother as it was to the prisoner. A more horrible or brutal death can scarcely be conceived. It shocked the senses of the entire community. There remains but little that you or I can do. We cannot restore life to this stricken woman; but we may do our share towards the guarding and protecting of human life hereafter.”
    2. Same — Homicide—Murder—Manslaughter.
    It is error to charge the jury that the defendant, who killed his wife after being informed of her unlawful relations with another man, might be found guilty of no higher crime than manslaughter, if he was in a state of such excitement that his reason was dethroned and he was driven along by an uncontrollable and irresistible impulse so that he was no longer morally or legally responsible for his crime or what he was doing or where he was, and had gone some distance from this scene before he was able to recover himself and his senses.
    3. Same — Insanity—Manslaughter.
    A respondent is guilty of manslaughter for killing a person, as distinguished from murder, if reason was at the time disturbed by passion to an extent which might render ordinary men of fair average disposition liable to act-rashly or without due deliberation, and from passion rather than judgment.
    4. Same — Evidence—Cross-Examination.
    A respondent on trial for murder may be oross-examined after he has testified in his own behalf, as to any discrepancies between his testimony and a prior statement made by the respondent at the time of arraignment.

      Error to Washtenaw; Kinne, J.
    Submitted November 12, 1909.
    (Docket No. 164.)
    Decided December 30, 1909.
    Alpheus Poole was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.
    Reversed.

      A. J. Sawyer, Jr., for appellant.

      John E. Bird, Attorney General, George S. Law and Charles W. McGill, Assistants Attorney General, and Carl Storm,, Prosecuting Attorney, for the people.
   Brooke, J.

Respondent was convicted of murder in the first degree. He was, at the time of the commission of the act for which he was prosecuted, a man 33 years of age, had been married 12 years, and lived with his wife and seven children in the city of Ypsilanti. The eldest child (born out of wedlock) was 14 years old. The youngest were twins about one year old. On the evening of April 28, 1909, respondent went home from work at the usual time. His wife was present and prepared the evening meal. She, however, did not eat it with the family, but left the house, going to a house about three blocks distant, in which one Henry Martin was living. At about 9 o’clock in the evening, respondent’s wife not having returned, he went out to look for her. Not finding her at the home of an immediate neighbor, he went to the house of a Mrs. Hamilton, who was a second cousin of his own, and stepmother to Henry Martin. Respondent did not find his wife at the Hamilton home, so returned to his own home, and from there tracked his wife, in the new fallen snow, to the door of Henry Martin’s house. He knocked, but got no response, and, after waiting around for a short time, again returned to his own home. At about 5 o’clock the next morning he again visited Mrs. Hamilton and told her his wife had stayed away all night. Mrs. Hamilton thereupon told him that an undue intimacy existed between his wife and Henry Martin, and that his wife had told her. that Martin intended to marry her, and that she would go away with him and take the twins. Respondent then returned to the Martin house, gained admission, but did not find his wife there. Passing through the house, however, he opened the back door, and there saw fresh tracks in the snow. Following these for about four blocks, he overtook his wife, and, after walking with her a short distance and holding a brief conversation with her, he drew a razor and instantly killed her by cutting her throat. Respondent admitted the homicide, so that the sole question for the determination of the jury was whether respondent was guilty of murder in the first degree, murder in the second degree, or manslaughter.

There are 67 assignments of error. We will consider first those relating to the charge of the court. After properly defining the various crimes of any one of which the respondent might be convicted, the learned circuit judge proceeded as follows:

“The crime which you are now considering was not committed in secret or in the dark. This awful deed was committed in the broad light of day in the open streets of the city of Ypsilanti, in bold and wicked defiance of all human and divine law. You have heard the story of this crime from the lips of the prisoner and from others who were eyewitnesses thereto. You have been told what occurred at the time and the statements of the prisoner at the time. It is for you to bear in your minds and memory all of these facts and circumstances. So far as we know, on this April morning life was as sweet and precious to this poor wife and mother as it was to the prisoner. A more horrible or brutal death can scarcely be conceived. It shocked the senses of the entire community. There remains but little that you or I can do. We cannot restore life to this stricken woman; but we may do our share towards the guarding and the protecting of human life hereafter.
“It appears without dispute that this prisoner, on the discovery of his wife, that she had left the Martin residence, followed her tracks along the streets of Ypsilanti for several blocks, and he finally overtook her, walked with her some distance, and after some altercation drew his razor from his pocket and sent her instantly into eternity. He is here now pleading for mercy. If from the evidence in this case you find that he was in a state of such excitement that his reason was dethroned, that he was driven along by an uncontrollable and irresistible impulse so that he was no longer morally or legally accountable for his conduct, so that he did not realize his crime or what he was doing or where he was, and had gone some distance from this scene before he was able to recover himself and his senses, then, under such circumstances, the defendant in this case is guilty of no higher crime than manslaughter; but, gentlemen of the jury, if under the evidence in this case, you find that when this prisoner committed this deed there was anger, hatred, and malice in his heart, that he wickedly and wilfully applied this weapon of death to the throat of his wife intending to take her life, and that he did it deliberately knowing just what he was doing, and doing it because he wished to do it, then the defendant is guilty of murder.
“Now, gentlemen, under the evidence in this case, if you find the prisoner guilty, you can find him guilty of murder in the first degree, or murder in the second degree, or guilty of manslaughter, and it will be your duty, if you find him guilty, to find in your verdict the crime of which you find him guilty. In your deliberations there will be, I am sure, no hesitation or false sentimentality. To your sober and mature judgment are committed the rights of the people of this State, as well as the rights of the defendant.”

It is urged on behalf of respondent that the portion of the charge above quoted is erroneous: (1) In that it tended to inflame the minds of the jury; and (2) that it improperly defined a condition of mind which would render respondent guilty of manslaughter only. With reference to the first point, it is sufficient to say that we think the charge is open to the objection urged. Touching the second, it is clear that that portion of the charge of the court, above quoted, in which he defines a condition of mind at the time of the homicide which would justify the jury in bringing in a verdict for manslaughter only, is entirely at variance with his earlier instruction to the jury upon that point, as well as contrary to the decisipns of this court.

In the case of Maher v. People, 10 Mich. 212 (81 Am. Dec. 781), a case as to the facts much resembling the case at bar, this court declared the law .on the subject under consideration as follows:

It will not do to hold that reason should be entirely dethroned, or overpowered by passion, so as to destroy intelligent volition. [Citing cases.] Such a degree of mental disturbance would be equivalent to utter insanity, and, if the result of adequate provocation, would render the perpetrator morally innocent. * * * ' The principle involved in the question, and which we think clearly deducible from the majority of well-considered cases, would seem to suggest, as the true general rule, that reason should, at the time of the act, be .disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment.”

So far as we have been able to learn, this rule has never been departed from in this State.

The record shows that, when arraigned, respondent admitted the homicide, and asked the court to determine what crime had been committed. The testimony of respondent was thereupon taken, and the court then directed that a jury be called to determine what crime had been committed, if any. Upon the trial respondent was again sworn in his own behalf, and in the course of his direct examination he detailed the conversation held with his wife, immediately preceding the homicide. On cross-examination the prosecutor was permitted, over objection, to go into his testimony upon the same subject given before the court at the earlier hearing. Respondent assigns error upon this ruling of the court. We do not think the objection well taken. Having testified (at the trial before the jury) as to what was said by himself and deceased immediately before the homicide, it was competent for the prosecutor to show that he had given a different version of the conversation under oath upon his first examination.

The other assignments of error have been considered, but need no discussion.

Because of the errors pointed out, the judgment is reversed, and a new trial ordered.

Blair, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    PEOPLE v. NICHOLS.
    1. Indictment and Information — Amendment—Time—Pleading.
    An information which charges an offense under videlicet on August 18th, may be properly amended by changing the date to July 18th. 3 Oomp. Laws, §§ 11919, 11936.
    2. Rape — Statutory Offense — Election of Offense Relied on.
    Evidence of a subsequent offense is not admissible after the introduction of evidence fixing the time and offense relied on in a prosecution for statutory rape.
    3. Same — Evidence—Time of Offense — Information.
    Where the information charged respondent with an offense on, “to wit, July 18th,” and the prosecuting attorney in his opening statement announced that he relied on an act committed about a week prior to July 18th, evidence of an offense committed two weeks before that date was admissible.

      4. Same — Evidence—Previous Acts.
    Previous or subsequent acts of intercourse are admissible to corroborate the evidence of the offense charged, but not to sustain a conviction for a separate offense.

      6. Same — Evidence—Confessions and Admissions.
    The written admissions of a girl of thirteen years of age, as to statutory offenses committed by the respondent, are not admissible as substantive proof for the purpose of convicting the accused, and are only competent to impeach the witness.
    6. Same — Trial—Instructions.
    The jury should be instructed, if so requested by respondent, that to warrant a verdict of guilty the jurors must unanimously find that the accused committed the act as testified to.
    7. Criminal Law —Argument of Prosecuting Attorney— Improper Comment.
    The statement in the 'argument of the prosecuting attorney upon, his official oath that a certain witness testified truthfully, is a fatal error. People v. Treat, 77 Mich. 348 (43 N. W. 963).
    Error to Calhoun; North, J.
    Submitted November 15, 1909.
    (Docket No. 167.)
    Decided December 30, 1909.
    Jerome E. Nichols was convicted of statutory rape, and sentenced to imprisonment for not less than five nor more than fifteen years in the State prison at Jackson.
    Reversed.

      W. S. Powers, for appellant.

      Howard W. Cavanagh, Prosecuting Attorney, for the people.
   Hooker, J.

The respondent appealed from a conviction of the offense of statutory rape upon a girl under the age of 16. The evidence offered by the people consisted of:

(1) The testimony of the girl, Marguerite La Pari.
(2) Testimony of persons who saw the parties in respondent’s office.
(3) Testimony of an officer and the justice who took the complaint as to statements made by the girl.
(4) Certain writings containing statements regarding the relations of the parties, over the signature of the girl.

The questions raised relate to:

(1) The charge made against respondent, and the duty of election.
(2) The admissibility of the girl’s extrajudicial statements.
(3) Exclusion of questions on cross-examination of the girl.
(4) The admissibility of certain affidavits made by the girl.
(5) The charge of the court in relation to extrajudicial statements.
(6) Remarks of prosecuting attorney.

The respondent was charged in the information with an offense committed on July 18th, though it was laid under a videlicet; the examining magistrate having bound defendant over on a charge of rape alleged to have been committed on that day. The information as originally drawn charged an offense on August 18th. A motion being made to quash the information for a variance, the court permitted the prosecutor to amend it to read July 18th. Error is assigned on this. We are of the opinion that the court did not err in denying the motion to quash and allowing the amendment. Sections 11919, 11936, 3 Comp. Laws; Cole v. People, 37 Mich. 544; People v. Waller, 70 Mich. 237 (38 N. W. 261); People v. Hildebrand, 71 Mich. 313 (38 N. W. 919); People v. Perriman, 72 Mich. 184 (40 N. W. 425); People v. Price, 74 Mich. 37 (41 N. W. 853); People v. Hamilton, 76 Mich. 212 (42 N. W. 1131); People v. Roat, 117 Mich. 578 (76 N. W. 91); People v. Hoffmann, 142 Mich. 531 (105 N. W. 838).

At the opening of the trial the prosecuting attorney announced that the offense relied on occurred about a week prior to the 18th of July. The girl, Marguerite La Parl, being sworn, testified that she worked in the office of the respondent, and that the last she did so was July 18th. Being asked whether at any time before that she had improper relations with respondent, she stated that she had one night when she went there after school, and before she began working there. The witness being interrogated further, defendant’s counsel objected, claiming that by offering the foregoing proof the prosecutor had fixed the time of the offense for which he sought conviction, and assigns error on the overruling of his objection. The witness was then allowed to testify to an act of sexual intercourse on an occasion when respondent placed her upon some pillows upon a stand in the corner of his back room, and apparently this was the occasion for which conviction was sought, and she stated that she thought it was about two weeks before July 18th. There was testimony in the case of intercourse, both before and after this occasion. The former was admissible, and the latter was not, provided, of course, that it was proper to treat this occasion as the instance for which respondent was on trial. The rule is settled in the case of People v. Brown, 142 Mich. 622 (106 N. W. 149). See, also, People v. Jenness, 5 Mich. 305.

Counsel urge, first, that the proof of the act in June was an election, and that, if not, the prosecutor’s statement to the jury that he relied on an act that was committed about a week before July 18th must be considered as fixing the offense as of July 11th. We find no difficulty in holding that the act of two weeks before July 18th was sufficiently described in the information, inasmuch as the date of July 18th was preceded by the videlicet. The opening of the prosecutor should not be held to be an election to prove and rely on an offense committed on July 11th. He did not definitely fix the date.

The more serious question relates to the effect of the proof first offered relating to the act in June. If we must hold this to have constituted an election notwithstanding the fact that the prosecutor at once disavowed such election, and consistently claimed conviction for the later act, we must reverse the case:

(1) Because the proof of the later act was inadmissible.
(2) Because the jury were permitted to find a verdict of guilty based on the later transaction.

The claim of defendant’s counsel is based on the opinion in the early case of People v. Jenness, 5 Mich. 305.

We insert the testimony of Marguerite La Pari, the first witness sworn, to show the exact situation. After the opening to the jury, which plainly indicated reliance upon the act about a week prior to July 18th, she testified that she went to work at defendant’s office right after school let out and worked about four weeks. She continued as follows:

“Q. Now, Marguerite, do you remember the last day you worked there ?
“A. Yes, sir.
“Q. Do you remember what day of the month it was ?
“A. July 18th.
“Q. What day of the week ?
“A. Saturday.
“Q. Now, at any time before that, had you had improper relations with Mr. Nichols ?
“A. Yes, sir.
“Q. And when, before that, Marguerite, as near as you can tell ?
“A. It was one night when I went there after school.
“Q. Was it before or after you began working there ?
“A. Before. * * *
“Q. Did you at any time have such relations with Mr. Nichols ?
“Mr. Dennison: I object to that question as irrelevant, incompetent, and immaterial. Counsel has asked this witness: ‘Did you have improper relations, or did Mr. Nichols do anything to you ?
“A. Yes, one night when I was going to school.’ Mr. Stewart has now fixed the time on which he seeks to get a conviction Any subsequent time is incompetent, immaterial, and irrelevant.
“The Court: I shall overrule the objection. He has indicated in his opening statement when he desires to fix it.”

Prom what has been already said, it is apparent that, had the testimony first offered related to the later transaction, as the one relied on, proof of the former would have been competent, under the case already cited, as well as under People v. Jenness, and we are reluctant to hold that a variation in the order of proof clearly competent should have the effect claimed for it. While the opinion in People v. Jenness at first blush may seem to hold just that, it is in our opinion clearly distinguishable. That was an incest case. The proof first offered related to an act committed on January 17th. Afterwards one or more acts were proved, against objection. The court said:

“ It was not claimed by the prosecution, and could not legally be claimed, that it was competent to convict the defendant of more than one act under this information. But the prosecutor having the right to select among all the acts of the kind which he could prove to have been committed between the parties, within the period alluded to, and within the jurisdiction, any one of those acts, before evidence had been introduced, was as properly the act charged in the information as any other. In other words, until evidence of some such act had been given, the charge in the information was floating and contingent, aimed as much at one as another, and at no one act in particular; and it remained for the evidence to point the charge to the particular act intended. But when evidence had been introduced tending directly to the proof of one act, and for the purpose of procuring a conviction upon it, from that moment that particular act became the ‘act charged.’ What had, till then, been floating and contingent, had now become certain and fixed. The prosecutor had made his election, and could not elect again; nor could he be allowed to prove any other act of the kind as a substantive offense upon which a conviction might be had in the cause. The information could be used as a dragnet only till the first act had been entangled in its meshes; every other act must be allowed to escape this throw of the net, and thenceforward the evidence must be aimed at this act. If others of the same kind lie in the same range, they can only be noticed for a secondary purpose, as they may be connected with or bear upon this.
“The act at the Howard House being the first to which evidence was introduced, and the evidence bearing directly upon that act, became from that moment the only offense charged — the only offense the jury were to try, and to which their verdict of guilty or not guilty must relate. Such must have been the view taken by the recorder when the evidence of previous acts of intercourse was admitted; as he admitted evidence of such acts ‘ not as substantive offenses, but in explanation and corroboration of the evidence of the act charged in the information.’
“ But, after the evidence bad been admitted for this purpose, the prosecuting attorney changed bis ground, and claimed that the jury might select any one of the acts on which evidence bad been given as the ground of their verdict.”

In that case the prosecutor intended to rely upon the act of January 17th for a conviction when be offered the proof, and the case went to the jury upon several acts. In this case he did not, as the record clearly shows, for it was disavowed on the spot, and the proof was limited to the purpose for which it was clearly admissible. We are therefore of the opinion that there was no error in admitting proof of the later and all intervening transactions of similar character. It was not proper to admit proof of acts subsequently committed, however, if offered first by the prosecutor. We are of the opinion that a plain and sufficient election was made. There was testimony, however, regarding an act on July 18th. It was drawn out on the direct, and was improper.

We may remark here that the defendant was entitled to an instruction that to warrant a verdict of guilty the jurors must unanimously find that be committed the act testified to, as committed on the stand, if requested.

The record indicates that this girl was old in vice, though young in years. The prosecutor showed by her that she did not tell her parents, because “ defendant told her not to, and that it would mean State’s prison for him if she did.” Thereupon the prosecutor was permitted to show that some time after the transaction an officer named Buckley, who bad got wind of the matter, approached her parents about it, and had an interview with the girl, who admitted and signed a written statement of the facts. She subsequently went, or was taken, before a magistrate, and signed a second statement in relation to the affair. These writings and the testimony of the officer and justice got into the case. There is some dispute as to which party caused its introduction, and, as the cause must be reversed on another ground, it is enough to say that it was not competent evidence for the people, and could properly be used by the defendant only by way of impeachment. We do not find it necessary to determine its effect upon this trial for the reason stated, but indicate our understanding of the rule for the purposes of another trial, should one be had.

Complaint is made of the charge regarding the use to be made of the signed statements, in that the jury are said to have been instructed that they might consider them as corroborating the testimony of Marguerite La Parl. The exact question appears to be whether the court should not have limited the use of this proof to the determination of her truthfulness, and whether he did not go too far in saying that:

I think I have already called your attention to the fact that certain statements of Marguerite La Parl are in evidence here, which have been reduced to writing. I now call your attention particularly to the return of the justice of the peace which was introduced as a part of the testimony here, and to which your attention has been repeatedly called. That testimony is not substantive proof; that is, it is not original and competent proof of the guilt of the accused. But you are to view the statements there, and to use them for this purpose only, namely, of its being either contradictory testimony relative to former statements of Marguerite La Parl, or corroborative testimony, and to assist you in construing her testimony as given here in court, and in determining its truth or untruth, to the extent that it will aid you as a piece of evidence for that purpose, and it is not primary proof of the offense charged.”

We are satisfied that the learned circuit judge intended to limit the application of this testimony to the question of the girl’s veracity, but fear that the jury may not have so understood it. Certainly, if they understood that it was to reinforce and corroborate her testimony as to the substantive facts, it was injurious.

Cunningham, a witness for the people, testified to observation of certain conduct of respondent and this girl in the former’s office, that what he saw was from the opposite side of the street, and it tended to corroborate the statements of Miss La Parl. He said that on one occasion the prosecuting attorney was also there. Apparently the credibility of this witness was questioned in the course of the argument of defendant’s counsel. This is the record [opinion of trial court] :

“So far as the prosecuting attorney is concerned, the only matter which approached an irregularity, in my judgment, and concerning which complaint was made or exception taken at the trial, was the following:
‘“Mr. Stewart: I will say, however, upon my official oath, that I know when Mr. Cunningham told certain things upon the stand he told the truth.
‘Mr. Dennison: We object and take an exception to counsel for the people giving testimony before the jury that we cannot cross-examine him upon.
“'Mr. Stewart: I will say it again. 1 will say it again to you, gentlemen, that I did not have to take the stand here; but I say that I know that Mr. Cunningham was a truthful witness so far as some things were concerned.
‘ Mr. Dennison: We take an exception to that.’
“The foregoing was provoked by certain heated remarks made to the jury by Mr. Hooper, one of the counsel for the defendant, who referred to certain testimony given by Mr. Cunningham but subsequently stricken from the record, and stated that in giving such testimony Cunningham had ‘branded himself (Cunningham) a liar.’ It appeared in the testimony that on one occasion the prosecutor was with Mr. Cunningham at the point where Mr. Cunningham claimed he observed certain things relative to which he testified, and the only fair import to be given to the remarks of the prosecutor is that as to some of these circumstances he had personal knowledge, and this appeared in the evidence. And, moreover, there was no dispute in the evidence as to Cunningham having been across the street from the defendant’s office and having made certain observations; but his statement in this regard was corroborated by other testimony; and it was this to which the prosecutor’s remarks referred, and to me it seems beyond question that it was not in the least prejudicial to the rights of defendant. I do not find the prosecutor made any remarks not justified by the testimony.”

This was a fatal error. It was practically the introduction of unsworn testimony corroborative of Cunningham. The case of People v. Treat, 77 Mich. 348 (43 N. W. 983), was a similar case. In that case not only was the prosecutor instantly and severely rebuked by the trial judge in the presence of the jury, but all was done that could be done to counteract the effect of his statement. Yet this court, upon a record most convincingly showing defendant’s guilt, felt constrained to say that injurious error had been committed, which the trial court was powerless to correct. It is unnecessary to discuss the case further.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Moore, McAlvav, and Brooke, JJ., concurred.


text:
    CITY OF BENTON HARBOR v. CUTLER.
    Municipal Corporations — Boundaries — Repeal by Implication.
    The rule that a local board of supervisors may not change the boundaries of a municipality under Act No. 215, Pub. Acts 1895, 1 Comp. Laws, § 2974, where the legislature has intervened by special act and made such change, subsequent to the enactment of the general law, is not applicable to the change in the boundary of the city of Benton Harbor under the general law, in view of subsequent special acts of the legislature expressly providing that the general law should govern that municipality.

      Error to Berrien; Coolidge, J.
    Submitted November 10, 1909.
    (Docket No. 180.)
    Decided December 30, 1909.
    Fred J. Cutler was convicted of violating a city ordinance.
    Affirmed.

      Cady & Andrews, for appellant.

      Frank L. Hammond (Humphrey 8. Gray, of counsel), for appellee.
   Ostrander, J.

Defendant was convicted of violating an ordinance of the city of Benton Harbor. His defense was, and is, that the ordinance has no force in the territory in which its violation is alleged to have occurred because the territory is outside the boundaries of the city. The city was incorporated, as of the fourth class, under provisions of Act No. 215, Pub. Acts 1895 (1 Comp. Laws, §§ 2956-3371). By Act No. 472, Local Acts 1903, entitled: “An act to reincorporate the city of Benton Harbor, Berrien county, Michigan,” the boundaries of the city are established, ward boundaries are fixed, and various powers are conferred and limited. Again, in 1905 (Act No. 661, Local Acts 1905) amendments were made by adding certain sections to the act of 1903. It is set out in the statement of agreed facts and in the briefs that the act last mentioned changed the boundaries of the city. Reference to the act as printed in the official volume of local acts for the session of 1905 does not support this statement. The territory in question was not, by the legislation referred to, brought within the boundaries of the city. In April, 1909, by proceedings admitted to have been regular, in accordance with the provisions of 1 Comp. Laws, § 2974, the board of supervisors of Berrien county detached certain territory, including that in question here, from the township of Benton and annexed it to the city of Benton Harbor. Section 11 of the local act of 1903 reads as follows:

“Except as herein provided the said city of Benton Harbor shall be subject to the provisions of act number two hundred and fifteen of the public acts of the State of Michigan for the year one thousand eight hundred and ninety-five, entitled,” etc.

The local act of 1905 contains (section 22) a like provision.

The question presented, the only one stated in the submission of the case below, is whether the board of supervisors had power to alter the boundaries of the city established by the legislature. The right of local authorities, acting under provisions of- general laws, to change boundaries fixed by special acts of the legislature, was denied in School District No. Thirteen v. Dean, 17 Mich. 223, and in Township of Harrison v. Board of Sup’rs of Schoolcraft Co., 117 Mich. 215 (75 N. W. 456); in one case school district, and in the other township, boundaries being involved. The reasoning indulged by the court in the opinions filed in those cases need not be repeated here. There is this distinction between those cases and' the case at bar: The legislature in this case has, in effect, provided, and that expressly, that the measure of the powers of the particular municipality shall be found in the special acts which have been referred to and in the general law. The special act establishes boundaries with no provision for their change. The general law provides a method for changing boundaries. It is as though the legislature had in the first instance established the boundaries of the city and enacted, as the charter of the city, all provisions of the special acts and all applicable provisions of the general law. In such a case it would not be supposed that, having expressly provided a method for changing boundaries by the action of local officers, such a method could not be pursued because the legislature had itself established boundaries. I find in the legislation itself a clearly expressed intention not to deny the right to proceed under the general law to change the boundaries of the city. It follows that the boundaries were lawfully changed, and the ordinance of the city was in force in the added territory.

The conviction is affirmed. No costs are awarded.

Montgomery, Hooker, Moore, and MoAlvay, JJ., concurred.


author: Grant, J.

text:
    McDONALD v. MARQUETTE CIRCUIT JUDGE.
    1. Eminent Domain — Public Necessity — Admissions in Answer,
    In proceedings to take private property for public use as a cemetery, an answer which admits that the cemetery in use is crowded and that public health and convenience require the selection of a new cemetery, constitutes a sufficient admission of the necessity of the public improvement and limits the issue to the question of the necessity for taking the defendant’s property.
    2. Same — Issues—Striking Out Portions oe Answer.
    Mandamus will not lie to compel a circuit judge to vacate an order striking out portions of an answer to a petition in such proceedings, where the answer attempted to place in issue immaterial questions relating to the interest of private parties who agreed to bear the expense of removing the bodies from the old cemetery to the proposed new one, in consideration of mining privileges in the former, and where other portions struck out related to the question of damages.
    Mandamus by Catherine McDonald to compel John W. Stone, circuit judge of Marquette county, to vacate an. order striking out portions of an answer to a petition in condemnation proceedings.
    Submitted November 16, 1909.
    (Calendar No. 23,641.)
    Writ denied December 30, 1909.

      Cummiskey & Spencer, for relator.

      T. A. Thoren (William P. Belden, of counsel), for respondent.
    The city of Negaunee filed a petition in the circuit court for the county of Marquette to condemn a piece of land belonging to the relator for the purposes of a public cemetery. It is conceded that all the proceedings taken are regular, and that the petition alleges all the essentials to jurisdiction. The relator answered, and the question now before the court arises on the allegations of section 5 of her answer, which is as follows:
    “ Respondent is informed and admits that the cemeteries now in use in the city of Negaunee are filled up and crowded, and that the public health and convenience require the selection and adoption of a new cemetery; but the respondent shows that it has been discovered that, under the present cemeteries, there is a large deposit of iron ore, that the city of Negaunee, before passing the resolution referred to in paragraph 8 of the petition, had entered into a contract with the Cleveland-Cliffs Iron Company, wherein it provided that the said Cleveland-Cliffs Iron Company may enter said public cemeteries now in use in the city of Negaunee, and mine and remove said deposit of iron ore, upon terms of payment provided for in the contract.

    “ Respondent further shows that by the terms of said contract the said Cleveland-Cliffs Iron Company have agreed to furnish and provide, at its own expense, for the said city of Negaunee, a piece of land suitable for cemetery purposes. It is also provided in said contract that the said Cleveland- Cliffs Iron Company will remove the bodies in the present cemeteries to such new cemetery at their own expense.

    “ Respondent further shows that the present cemeteries are of about 10 acres in extent, and have been in use as cemeteries and been sufficient as cemeteries for the said city of Negaunee since its settlement and establishment.
    “Respondent further shows that pursuant to the (an) agreement with the city of Negaunee, the Cleveland-Cliffs Iron Company purchased of Charles and Napoleon Marquetty 40 acres of land adjoining the land described in the petition on the east, and that it is designed to use this said 40 acres of land for a burial ground for the city of Negaunee.
    “ Respondent further shows that, for burial purposes, this said 40 acres would be sufficient for the city of Negauneefor any reasonable period of time in the future, and that it would not be necessary to acquire respondent’s land for cemetery purposes, to be used in addition to said 40 acres of land, were it not for the provision in petitioner’s contract with the Cleveland-Cliffs Iron Company that the said Cleveland-Cliffs Iron Company remove the bodies from the present cemeteries.

      “Respondent further shows that the removal of the bodies are not necessary, except for the profit and emolument which the said Cleveland-Cliffs Iron Company may derive from the removal of said deposit of iron, by undermining the cemeteries nowin use, and that this proceeding therefore is only made necessary by, and is a condemnation of private property for, the use, convenience, and profit of a private corporation, and is not in any sense necessary for the use of the petitioner, in addition to the land already available and ready to be placed at the disposal of the said petitioner.

      “ Respondent further shows: That the said Cleveland- Cliffs Iron Company desire to obtain title to the portion of the Ifi-acre tract described in said petition, not designed to be used for cemetery purposes, lying south of the county road and west of the Carp river; that the said Cleveland-Cliffs Iron Company has a dominating influence in the affairs of the city of Negaunee; that the portion of respondent’s 40-acre tract here sought to be condemned is the most valuable part of said 40-acre tract, and is necessary to the enjoyment of the said 40-acre tract, in this: That upon this portion of the 40-acre tract, the main part of the clearing has been done. It is the only high portion of the said 40-acre tract available for general farming purposes, and upon this portion stands the house and barn of said respondent.
    “ Respondent is informed and believes that the said Cleveland-Cliffs Iron Company procured the selection of the land described in the petition, for the purpose of depreciating and deteriorating the value of the remaining part of the Ifi-acre tract, in order that they

      might acquire it from respondent at a low figure, and that in this respect the said condemnation proceeding is also for the benefit, profit, and convenience of a private corporation.

    “ Respondent further shows that there are other parcels of land suitable for cemetery purposes, more conveniently located with reference to the city’s center of population, than the land herein proposed to be condemned, and that the Oleveland-Cliffs Iron Company own and have title to parcels of land so available for cemetery purposes.
    “Respondent further shows that she is informed and believes that there is a deposit of iron underlying the premises so sought to be condemned, and that the condemnation of the surface estate of said land will destroy the value of any mineral deposit that may underlie the same, since the removal of such mineral deposit would create the same condition as makes necessary the removal of the bodies from the present cemeteries now in use by the city of Negaunee.”
    Counsel for the city moved the court to strike out certain parts of the answer. The court entered an order striking out those parts above printed in italics. The relator now asks that the respondent be compelled to set this order aside.
   Grant, J.

(after stating the facts). The answer admits the public necessity of a new cemetery by the admission that the old cemeteries are filled up and crowded, and that the public health and convenience require the selection and adoption of a new cemetery. The only question therefore left for the court to determine is the necessity of taking the relator’s land. This question is not at all affected by the fact that private parties may be interested in securing the vacation of the old cemeteries, and may agree to bear the expense, in whole or in part, of removing the bodies, gravestones, and monuments to a new cemetery. Hairston v. Railway Co., 208 U. S. 598 (28 Sup. Ct. 331); Pere Marquette R. Co. v. Gypsum Co., 154 Mich. 290-299 (117 N. W. 733); Chicago, etc., R. Co. v. Morehouse, 112 Wis. 1 (87 N. W. 849, 56 L. R. A. 240, 88 Am. St. Rep. 918).

If the parties interested made an agreement by which the Cleveland-Cliffs Iron Company have provided burial ground upon which to remove the bodies in the old cemeteries, that is no concern of the relator. If the alleged purchase by the Cleveland-Cliffs Iron Company is for future burials, and not alone for the removal of bodies from the old cemeteries, it will become, upon the hearing of the trial, a legitimate inquiry whether the land so furnished is sufficient for present and future needs. That may affect the question of the necessity of taking the relator’s land. It is a fair inference from relator’s admission that the public health may require the removal of the old cemeteries, and, if the Marquetty 40 was purchased by the Cleveland-Cliffs Iron Company and conveyed to the city for that purpose alone, it will not affect the necessity of acquiring land for a new cemetery. Neither is it of any significance or importance that the Cleveland-Cliffs Iron Company may desire that the city should secure the higher portion of relator’s land in order to diminish the value of the adjoining portion of her land for mining purposes. That relates to the question of her damages. Neither is it of any importance that the Cleveland-Cliffs Iron Company herein exercises a predominating influence in the municipal government of the city. The sole question is the necessity of taking the relator’s land. The issues raised by that portion of her answer stricken out have no bearing upon the question.

The writ is denied.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.