text:
    MALLIAT v. VOGEL. DAVID v. SAME.

    1. Title to Lands — Identity oe Grantor — Evidence.
    On a bill to quiet title, it appeared that the land in controversy was patented to “Andreas” P., and that the patentee had been absent from the State for 35 years. Defendant’s claim of title was founded upon areeent deed from one “Andrew” P., whom he claimed to have found in Chicago in possession of the patent. The patent was not produced, nor was the grantor sworn as a witness; the only evidence going to his identity being that of a boarding-house keeper, who testified that one Andrew P. boarded with him at about the time the deed to defendant was executed. Held, that the evidence failed to identify defendant’s grantor with the patentee of the land.
    2. Same — Bill to Remove Cloud — Recital in Deed.
    Where the only evidence produced by complainant in a bill to quiet title to show a conveyance to a prior grantor was a recital in the deed made by such grantor that “ this land, on which I have paid taxes for over 22 years, is the same deeded to me by Andreas P., the deed for which was never recorded, but was destroyed in 1871 in the Chicago fire,” complainant’s bill must be dismissed, on the ground that the evidence was not sufficient to show title.
    Appeals from Mason; McMahon, J.
    Submitted June 23, 1900.
    Decided December 4, 1900.
    Bill by Frank J. Malliat against Albert Vogel and August Tiedemann, and by Pauline David and others against the same defendants, to quiet title. From decrees for complainants, defendants appeal.
    Reversed.

      Fitch & Reek, for complainants.

      A. A. Keiser and P. T. Qlassmire, for defendants.

       Rehearing (complainants’ application) denied February 27, 1901.

   Long, J.

These two cases were heard in the court below as one case, the questions raised in them being identical. The bills were bled to quiet complainants’ title, in which cases they claimed to own together in fee the N. E. i of section 12, in township 19 N., of range 18 W., being in Mason county, this State. One party owned one-half in fee and the other parties one-half.

It appears from the proof that in 1860 one Andreas C. Prussing became seised in fee of the land under a patent, which he caused to be recorded in the office of the register of deeds of that county. The complainants Pauline David and others claim one part of the land under deeds from Charles Mears, of that county, to one George B. Elms, dated August 29, 1885, and from George B. Elms to themselves, dated November 5, 1891. These deeds were recorded in the office of the register of deeds immediately upon their execution. The complainant Malliat claims title to his part of the land under a deed from Charles Mears to himself, dated October 1, 1894. This deed was duly recorded. The deed from Mears to Elms, which was recorded in 1885, contains this recitation:

“This land, upon which I have paid taxes for over twenty-two years, is the same deeded to me by Andreas Prussing, the deed for which was never recorded, but was destroyed in 1871 in the great Chicago fire.”

The complainants, in order to make their case, and after putting these several deeds in evidence, introduced testimony tending to show that Prussing worked for Mears in 1861 and 1862, and purchased the land during that time; that, after he had made his purchase, he stated that he had bought it upon representations made by Mears that it had a quantity of timber on it, and that, after looking it over, he found there was none, and accused Mears of deceiving him in reference thereto when he made the purchase; that Mears then said, “Well, if you are not satisfied with the land, I will take it off your hands;” that Prussing shortly afterwards left Mason county, and his whereabouts thereafter were unknown. It is also shown that from that time forward Mears had the lands assessed to himself, and paid the taxes thereon, up to the time he made the deeds to complainants. It appears that the land was wild and uncultivated, and no one was in actual possession of it until the complainants went into possession under their respective deeds. From that time forward complainants have been in possession, making valuable improvements thereon. Mears died some time prior to the filing of these bills.

Defendants claim title under a deed from a man by the name of Prussing; this deed being dated July 16, 1894. The defendant Yogel explains how he came to know of the break in the chain of title running to complainants. He obtained from Mears a description of lands in that vicinity claimed to be owned by Mears, his object being to get some lands for the benefit of a German aid society. In the examination of those titles he found the title to this piece was still in Prussing, as appeared by the record. He says he made some inquiries, and found that the man Prussing resided in Chicago; that he went there; and that his brother, who was a constable in Chicago, found Prussing for him, and brought him to the court-house in Chicago, and there Prussing made and delivered to him the deed. His testimony upon the question of the execution and delivery of the deed was as follows:

“Q. Were you present when that deed was executed?
“A. Yes, sir; it was executed in the court-house in the city of Chicago.
“Q. Who was present?
“A. There were a couple of men there that were present who knew Mr. Prussing. I don’t know what the names are; but the head clerk of the circuit court, you have got his signature there. I don’t know what his regular name was. But there were about 10 more witnesses present there. Of course, I don’t know their names, and I didn’t inquire for the names. There was an original patent for this laud.
“Q. In whose possession was it?
“A. In Andrew Prussing’s. I mean that it was in the possession of Andrew C. Prussing, who signed this deed. He fetched the paper along into the court-house when the deed was made out.
“Q. Did you make any inquiries of him as to whether or not he still owned this land ?
“A. Yes, sir. He told me he owned this land since 1860, and he did not know for sure how the thing stood with this land on account of he had worked for Mears eight or nine years. * * * When the year was up, he would settle with Mr. Mears, and Mr. Mears took the taxes out of his wages, and he claimed that he got a receipt for it. * * * After he left here, and got back to Chicago a couple of years, he said he sent a letter to the township treasurer for information to let him know how much the taxes were for each year, and he sent letters off for three or four years, and he never got an answer back; and he said on account of that he did not pay any more attention to it.
“Q. Did you ask him for a warranty deed ?
“A. Yes; and he said, ‘Probably I could give you a warranty deed, but on account of the taxes, and the way things stand now, I do not like to do it.’ So I took a quitclaim deed. * * *
“Q. Did you ask him if he had a wife?
“A. Yes, sir. He said, ‘I board myself; I never was married.’ He said he was a common laborer, and had been out in California.”

Upon his being asked how he came to find this man Prussing, he stated that when he was over at Mears’, looking for land for the German aid society, he found, as he states it,—

“An old fellow over there, who was working. I don’t know exactly what his name is. His name is John. I didn’t know him very well. And I asked him, ‘ You know a man by the name of Prussing?’ ‘ Yes,’ he said, ‘I know the fellow;’ and I said, ‘You know where he is ? ’ and he said, ‘ The last time that I saw him he was in West Kinzie street, Chicago.’ And when I got there I went and saw my brother, who is a constable .in Chicago, and told him, and he went and hunted up the man Prussing.”

He further testified that he had never seen the land, but that he had been told by Mr. Tiedemann, the other defendant in the case, that there was nice timber on it, and so he bought it, and paid $600 to Prussing.

The only other testimony in reference to the identity of Prussing is that given by John Ruppert and wife, of Chicago, who kept a boarding-house there in 1894, who each testified that a man by the name of Andrew Prussing boarded with them from the 19th of January until some time in March of the same year. The patent was not produced, nor does defendant Vogel claim that he made any application to Prussing for it. The whole defense is based upon the testimony of Vogel that he got a deed from a man who called himself Andrew C. Prussing, and his further testimony that this man Prussing had a patent for these lands. It appears also that this Prussing spelled his first name “Andrew” when he signed the deed, while the patent, as shown by the record, runs to “Andreas” Prussing.

The court below entered decrees in favor of complainants, and in the opinion filed determined the rights of the parties upon the ground that the defendants were estopped from setting up title because Prussing had permitted Mears to deal with this land as his own for more than 30 years.

While we think the court did not reach the right conclusion, yet we are satisfied that no one can read this record without being convinced that defendant Vogel has not established any claim to these lands. According to his statement, he accepted a deed from a man by the name of Prussing, without inquiring or ascertaining whether he was the true owner of the land. If he were the original Prussing, it seems to us it would have been easy to have found some proof of his identity; or, at least, that defendant Vogel would have required from this party the surrender of the patent which he claims to have seen in his hands at the time of taking the deed, and which would have aided his case materially. It is peculiar that he should have paid $600 for a piece of land which he had never seen, and take title for it from a man whose identity was so unsatisfactory, and apparently take no precaution to keep track of his whereabouts, so as to be able to produce him as a witness, when, as was to be expected, complainants should attempt to prove title. Prussing had been absent from these lands since 1862; yet defendant Vogel claims to have readily found him in Chicago through the instrumentality of his brother, the constable, and yet could not or did not produce him as a witness here. The brother, even, is not produced as a witness to show that he ever knew the man Prussing, or 'that he is the identical Prussing named in the patent. There is no proof that the Prussing who boarded with the Bupperts was the same Prussing who owned the patent. These facts, together with the fact that the given name in the deed is spelled “Andrew” and “Andreas” in the patent, lead us to the conclusion that there is no identification of Prussing upon this record, and that defendants have no more title to the land than they would have had their deed been taken from any other stranger. Mears exercised acts of ownership over the land, paid the taxes, and treated it in every way as his own for nearly 40 years, during which time the owner of the patent set up no title and made no claim to it. The complainants are in possession, and have made valuable improvements as grantees of Mears.

But, while defendants have made no proof that satisfies us of the identity of this Prussing as the owner of the patent, yet this is not sufficient to sustain a bill to remove the cloud from the title. In order for a person successfully to invoke the interposition of a court of equity to remove a cloud from his title, he must not only show the invalidity of the title of the defendant, but also establish the validity of his own title. As was said in Lawrence v. Zimpleman, 37 Ark. 644: “ The complainant in a bill to remove a cloud upon his title must himself have a reasonably clear title. He must proceed upon the strength of his own title, and not upon the weakness of the defendant’s.” This doctrine is supported by Glazier v. Bailey, 47 Miss. 402; Shotwell v. Shotivell, 24 N. J. Eq. 378; Jones v. Railroad Co., 62 Ga. 718. The only evidence of a conveyance from Prussing to Mears, from whom complainants claim title, is the recitation in the deed made by Mears to Elms, from whom the complainants took their deed. This recitation alone is not sufficient to establish the fact that Prussing ever made a deed to Mears.

The complainants’ bills must be dismissed, with costs of both courts, without prejudice, however, to the rights of the parties to establish their titles in any other proceeding.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    McCRUM v. WEIL & CO.
    Dangerous Premises — Contributory Negligence — Question por Jury.

       Plaintiff's decedent went to the store of the defendant, a mercantile corporation, and was invited into the shipping room to transact his business with the shipping clerk. The room was somewhat dim; the electric light was burning over the shipping clerk’s desk. The clerk met deceased and another customer at the door of the shipping room. The clerk walked to his desk, followed by this other customer and the deceased, who was the last of the three. The decedent was 63 years of age. The course in which he was invited to walk was in close proximity to the open shaft, which was left unguarded, into which he fell, and was killed. Held, that the question of the contributory negligence of the deceased was for the jury.
    Error to Wayne; Waite, J.
    Submitted October 3, 1900.
    Decided December 4, 1900.
    Case by Catherine McCrum, administratrix of the estate of Henry McCrum, deceased, against Weil & Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings ei’ror.
    Reversed.
    Plaintiff’s decedent went to the store of the defendant company, went into its shipping room, fell into the ppen shaft of an elevator, and was killed. The name of the shipping clerk was Stowell. Mr. McCrum and Mr. Newman went to the store about the same time (midday) on business. A clerk named Marx took them to or near the door of the shipping room, called Mr. Stowell, and told him there were two gentlemen for him to wait upon. Mr. Newman handed Stowell a receipt for a mattress. Stowell, followed by Newman, went to his desk, and, while the two were in conversation, heard a fall, looked around, saw that Mr. McCrum was not in the room, and heard a moaning in the basement. They went to the shaft, and there found Mr. McCrum lying at the bottom. He was unconscious, and died shortly after. No one saw deceased after entering the shipping room, and how he fell into the shaft is matter of conjecture. This shipping room was 10 feet high, 30 feet 4 inches long, and 14 feet 4 inches wide. There were two windows in the rear wall, each 3 feet 9 inches wide, 3 feet 4 inches from the floor, and extending to the ceiling. Each was about 6 feet from the outside wall on each side. Between the windows was a door 5 feet 1 inch wide, which was open at the time. The elevator shaft is in the northwest corner of the room, is 8 feet 3 inches wide, and 6 feet 4 inches deep. From the left edge of the door, where the deceased entered, to the elevator shaft is 9 feet. The shipping clerk’s desk was in the northeast corner back of the elevator, and the distance from the desk to the corner of the shaft was 26 inches. The sides of the elevator are inclosed. The front is open to the ceiling. Back of the shipping room, and running past the door and windows, is an alley 18 feet wide, with a one-story building opposite. An electric light was burning at the time in the corner of the room over the shipping clerk’s desk. The elevator had just gone to the story above with a load of goods. There was a gate 3 feet high in front of the shaft, which was pushed up and down by hand. This gate the parties using the elevator had neglected to close. The negligence charged is the failure to protect this shaft by closing the gate.
    The court directed a verdict for the defendant, on the ground of contributory negligence on the part of deceased. The defendant introduced no testimony. The principal disputed question of fact in the case is whether the space between the door and where deceased entered the elevator shaft was substantially unobstructed, or was obstructed by goods, leaving a narrow pathway from the door to the clerk’s desk. Mr. Stowell testified that the place was obstructed, but that a passageway about 3 feet wide was left from the door to his desk, while Mr. Newman testified that the space was practically clear. Stowell and Newman do not agree upon one other question. Stowell testifies that the elevator was in sight, going up, when Newman and deceased entered theroom, while Newman says it was not in sight.

      Flowers & Moloney and Oscar M. Springer, for appellant.

      Keena & Lightner, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). We think the learned circuit judge erred in taking the case from the jury. The deceased was invited into this place. He had a right to follow the clerk to the desk for the transaction of his business. He was 63 years old, and wore glasses. Some of the witnesses testified that it was not very light in the room when they went in, and, though they “could see all right,” yet they testified that it was quite dim. A light was burning, which would shine directly in the eyes of the deceased, who was approaching, unless his eyesight was obstructed by those walking ahead of him. The course in which he was invited to walk was in close proximity to the open shaft. While all the other witnesses testified that they could see the shaft, yet their eyesight may have been better than was that of the deceased. The defendant cannot escape liability by showing that young persons, whose eyesight was good, could see and avoid the danger, but was equally bound to protect the place against those who came to its place of business with eyes more or less dimmed by age or other causes. It invited the general public into its place of business. It was required by the law to keep such place reasonably safe for all classes whom it invited.

The case should have been submitted to the jury. Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    DUDLEY v. CONELY.
    Sureties — Replevin—Action on Bond — Defenses — Irregularities in Original Suit.
    Sureties upon a replevin bond cannot escape liability by setting up in defense to an action on the bond mere irregularities in the proceedings in the replevin suit. So held where the defenses interposed were that the time for settling a bill of exceptions on an appeal in the original suit was extended beyond the time stipulated, and that on the last trial it was consolidated with another cause.
    Error to Wayne; Carpenter, J.
    Submitted October 3, 1900.
    Decided December 4, 1900.

      Assumpsit by Harlan J. Dudley and Charles P. Collins against Clarence Conely and Oscar Schloeman, co-partners as Clarence Conely & Co., principáis, and Christian Hosbach and William Kemter, sureties, upon a replevin bond. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Affirmed.

      Tarsney & Fitzpatrick, for appellants.

      FCeena & Lightner, for appellees.
   Long, J.

Suit on replevin bond. The case in which the bond was given was commenced in the circuit court for Wayne county August 14, 1894, in which Clarence Conely and a copartner were plaintiffs, and Collins and Dudley defendants. In October, 1895, verdict was given, and judgment rendered thereon in February following. That case was removed to this court, whero it was decided in 1896 (Conely v. Dudley, 111 Mich. 122 [69 N. W. 151]), and the judgment reversed. In December, 1897, the case was again tried, and a verdict directed by the court below for the plaintiffs. Time to move for a new trial and settle a bill of exceptions was extended under stipulation, and from time to time thereafter the time to settle bill of exceptions was extended, as defendants contend, up to September, 1898. The bill of exceptions was signed and filed October 25, 1898. Plaintiffs contend that the bill was settled within the date covered by the stipulations. The case was removed to this court, where it was decided March 14, 1899, and the judgment of the court below reversed. Conely v. Collins, 119 Mich. 519 (78 N. W. 555, 44 L. R. A. 844). The case was again tried in the circuit court before a jury, who returned a verdict in favor of defendants, under the charge of the court, for $362.13.

It is contended here by defendants that, when that case was tried in the circuit court, the court permitted it to be consolidated with another 'case, and that but one jury sat in both cases, while plaintiffs contend that there was no consolidation. Whatever may have been the order of the circuit court as to the consolidation, it appears, upon the journal of the court that separate verdicts were rendered in each case; and the only proof that there was a consolidation is a memorandum upon the short-book kept by the clerk. It appears in the present case that the bond in replevin was signed by Conely & Co. as principals, and William Kemter and Christian Hosbach as sureties, and was for the sum of $599.30. This replevin bond was in the usual form, running to the coroner of the county, and was assigned by him to the plaintiffs in this case. The plea was the general issue, with notice that defendants Hosbach. and Kemter would insist in their defense that they had been released and discharged of and from all liability upon said bond as sureties:

First. Because of the expiration of the time in which to settle bill of exceptions on the second trial, as such time was extended beyond the time stipulated.
Second. Because of the order consolidating both cases on the third trial.

There is some conflict of testimony as to whether the bill of exceptions was settled within the time stipulated, and it is contended by plaintiffs’ counsel that there was no proof in the case, except the short-book, that the. two cases were consolidated. It is further contended that, the journal entry showing separate verdicts, the case must be regarded as having been tried as a separate case.

Even if defendants’ counsel be correct in saying that the bill of exceptions was settled after the time expired under the stipulations, and that these two cases were tried as one, we do not think their contention can prevail that such facts would discharge the sureties on the bond. By the bond itself, the defendants promised that:

“If the said defendants shall recover judgment against them [Conely & Co., plaintiffs in the replevin suit], then, if the said Clarence Conely and Oscar Schloeman, plaintiffs, shall return the said property, if return thereof be adjudged, and shall pay to the defendants all such sums of money as may be recovered by such defendants against them in the said action, then the above obligation to be void; otherwise to remain in full force and virtue.”

The defendants herein took the property from the present plaintiffs, and judgment has been rendered in favor of the obligees in the bond.

Counsel for defendants rely upon Evers v. Sager, 28 Mich. 47; Fish v. Barbour, 43 Mich. 19 (4 N. W. 502); Bullock v. Taylor, 39 Mich. 137 (33 Am. Rep. 356); People v. Brown, 2 Doug. 9; Bolton v. Nitz, 88 Mich. 354 (50 N. W. 291). We think none of these cases sustains their contention. In the first the surety upon an appeal bond from justice’s court was held to be released because, by stipulation between the parties, the declaration was amended in the circuit court by claiming an amount of damages beyond the jurisdiction of the justice. By this amendment the surety became liable to a larger amount than when the bond was executed by him, and it was properly claimed there that, in effect, the suit became a new suit in the circuit court; and it was held that the defendant, by his consent to the amendment, could not bind the sureties on the appeal bond. In Fish v. Barbour, supra, the action was on a bail bond in a capias proceeding. An amended declaration was filed in the case, so as' to describe the fraudulent representations differently from the first declaration by stating different localities and amounts of payment made by the plaintiff. It was held that the variance was fatal, and the sureties on the bond could not be made liable. In Bullock v. Taylor, supra, it was held that a surety for the payment of a promissory note was not bound to perform a collateral agreement between the parties, to wit, to pay attorney’s fees. In People v. Brown, supra, it was held that an alteration in a bond after it had been signed by some of the sureties, and without their consent, released them. In Bolton v. Nitz, supra,, it appeared that by stipulation of the parties in a replevin suit, and without the consent of the sureties on the bond, the writ was amended .so as to describe other property* and the declaration followed the amended writ. It was held that the sureties were not liable for the amount of a judgment obtained upon that declaration.

The matters complained of by defendants’ counsel, if they exist as claimed, amount merely to irregularities, which do not go to the jurisdiction. There is no claim that there was any fraud or collusion by which the rights of the defendants were affected. The judgment is in the usual form of replevin. This is not like a case where a surety is simply to pay money if the principal fails to do so, but is a bond given in the course of a suit; and in such case the surety submits himself to the acts of the principal, and to the judgment as itself a legal consequence falling within the suretyship. 2 Black, Judgm. §§ 587, 671.

In the case of Robertson v. Davidson, 14 Minn. 554, the action was upon a replevin bond; and the sureties claimed that the judgment in the replevin case, which was not in the ordinary form of a judgment in an action of replevin, but was in the usual form of a judgment for the recovery of money only, released the sureties from their liability on the bond. It was said by the court:

“The undertaking is not collateral in its nature. It is in effect an affirmative obligation on the part of the signers of it to return the property to the defendant in the replevin action upon a judgment to that effect, and to pay him such sum as may for any cause be recovered against the plaintiff in that action. By the terms of the instrument, therefore, upon the recovery of the judgment by the defendant in the action of replevin in the district court, the signers of the undertaking became liable to Robertson upon that instrument. * * * We have already seen that the undertaking given by the defendants in this action is, as between them and the plaintiff, an original obligation, and the defendants were not sureties, but original promisors or obligors. The principles applicable to sureties, therefore, do not apply in this action. By the terms of the undertaking, the defendants agreed and became liable not only to return the property, if a return was adjudged, but to pay to the plaintiff such sum as might for any cause be recovered against the defendant in the action of replevin. It is true, the correct and usual form of judgment in replevin is in the alternative, for a return of the property or for the value thereof. The judgment as entered in this case, therefore, is irregular; but it is irregular only, and not void. Its regularity cannot be impeached or inquired into collaterally. It cannot, therefore, be attacked in this action. Gallarati v. Orser, 4 Bosw. 105. The defendants, therefore, are liable on the undertaking for the amount recovered in the action of replevin, and the plaintiff is entitled to judgment therefor.”

In Wells, Repl. § 433, after stating that an alteration in the bond would release the surety, the author continues:

“Nevertheless the sureties are bound by all the steps which their principal may take in good faith for the success of his suit in court, and are bound by the result of that suit. If the court have jurisdiction, the sureties are bound by such order as it may make in the case; it being the essence of the contract that the surety is answerable for his principal’s conduct in the suit before judgment.”

See, also, Mason v. Richards, 12 Iowa, 74.

In Clinton v. Laning, 73 Mich. 284 (41 N. W. 424), which was an action on a liquor bond, it was held that the sureties could not retry the original suit upon the merits; that they could only show that the judgment was not rendered by a court of competent jurisdiction, or that it was void for fraud or collusion.

In Clinton v. Rice, 79 Mich. 354 (44 N. W. 790), in speaking of its opinion in Clinton v. Laning, the court said:

“It was held in this court in Clinton v. Laning that such judgment was binding upon Rice and Potter, the sureties on the bond; the express condition of such bond being that they would pay any judgment recovered against their principals.”

In Gill v. Backus, 108 Mich. 417 (66 N. W. 347), the action was debt upon a bond given for the release of property which had been attached under' the log-lien law. The defendant, being a surety upon this bond, contended that, since in the lien case the amount of the lien in favor of plaintiff was less than $100, judgment should have been entered for defendant in that case for costs, and that the judgment in the lien case granting plaintiff costs was no binding upon the sureties, because it was contrary to the statute. This court held that such a defense could not be maintained. It was said:

“The defendant Backus took no steps to review the judgment in the attachment case, and, as the bond undertakes to pay the judgment, neither Backus nor the sureties can question tbe judgment, unless it is void in whole or in part upon its face.”

We think it is too well settled that sureties upon replevin bonds cannot escape liability upon the bond by mere irregularities in the proceedings in the original case to need further comment here.

The judgment must be affirmed.,

The other Justices concurred.


text:
    FRUIT DISPATCH CO. v. RUSSO.
    1. Sales — Fraudulent Purchase — Exemptions.
    In an action to recover the value of goods fraudulently purchased, the question of exemptions is in no way involved, and it is error to instruct the jury in relation thereto.
    3. Same — Waiver op Fraud.
    Plaintiff sold to defendants a car load of fruit, and drew a 10 days’ sight draft for the price, §730. Defendants accepted the draft, hut without intention of paying it, and it was dishonored when due. Plaintiff’s agent, on learning of the nonpayment, agreed with defendants that they might send him at once a draft for §500, and remit the balance on receiving another car load of fruit, which they had ordered. The . draft was never sent, and no more fruit was furnished. Held, not to show a waiver of the fraud.
    3. Same — Evidence—Directed Verdict.
    In an action to recover the value of goods fraudulently purchased, evidence that defendants, at the same time, purchased from different dealers on credit twice as much merchandise as they could legitimately handle, which they sold for cash, without paying any hills, and that they told plaintiff’s agent that they had done so, and that they intended to pay no one except plaintiff, when uncontradicted, entitles plaintiff to a directed verdict.
    Error to Kalamazoo; Buck, J.
    Submitted October 4, 1900..
    Decided December 4, 1900.

      Case by the Fruit Dispatch Company against Guiseppi Russo and Sam Spalla, copartners as G. Russo & Company,-to recover the value of goods fraudulently purchased. From a judgment for defendants, plaintiff brings error.'
    Reversed.

      Howard, Roos & Howard, for appellant.

      Frost & Jackson (Frank F. Knajppen, of counsel), for appellees.
   Long, J.

This suit was commenced by capias to recover the value of a car load of bananas alleged to have been fraudulently purchased by defendants of plaintiff through a Mr. Forbush, its Michigan manager and agent, on May 20, 1899. The plea was the general issue. The case was tried before a jury, and verdict of no cause of action rendered. The defendants introduced no testimony, but they were both present in court during the entire trial, and were not sworn.

The testimony is all returned in the record, and was in no way contradicted or controverted by the defendants. It appears that on May 20, 1899, defendants bought of plaintiff, through Mr. Forbush, a car load of bananas at the agreed price of $720, and on the same day defendants were drawn upon by a 10 days’ sight draft for that amount, which draft was accepted, but which defendants failed to pay,, and never have paid; that while in business the defendants could handle legitimately, at the outside limit, only four car loads of bananas from May 12 to May 31, 1899, yet during that time they succeeded in getting on credit ten car loads of different parties, and disposed of the same without paying anything on the purchase price; that during that time they purchased, received, and disposed of fruit to the amount of $5,667.18, for which they never paid anything; that Mr. Forbush, whose business office is in Detroit, on learning of the nonpayment of the draft for the car load sold by him, immediately went to Kalamazoo, where defendants were doing business, and had an interview with them. This was on June 6th, and he says defendants took him into the cellar at their place of business to have a conversation with him, as the'y said it would be more private there. Mr. Forbush testifies:

“In the conversation I had with Russo, Spalla being present, Russo said: ‘ Others have done this thing, and I do not see why I cannot. People should have cash to buy goods, and for cash can always get what goods they want. * * * We will have the cash. We have got the goods, we have sold the goods, and we have got the cash.’ He said further that he had bought goods from a large number of importers and sellers, and that the amount was not large to them, but the sum total .to himself was considerable; that they would never feel the amount of their individual credit to him; and that he had scattered his indebtedness around through as many sellers and importers as he was able to. They said they had bought all the goods they could buy during the season;' that they bought just as many goods as they could buy, and had disposed of them, and had not paid for them. They said they would not pay for them; that they did not have to. They said they did not intend to pay a cent for them except to me; that others had bought a large quantity of goods, and made money by not paying for them; that they did not see any reason why they could not do the same. They said, ‘ When this thing gets settled, we can buy for cash, and will make enough cash out of this to buy with.’”

There was also testimony offered by the plaintiff tending to show that several claims had been received at Kalamazoo, for collection, by different attorneys, aggregating $3,500. Mr. J. W. Osborn, an attorney, who had a claim for collection for bananas sold to defendants, testified that he had a conversation with Russo, in which he said their firm did not owe more than $3,000, but declined to let him see their books, and said that the money and goods were all gone, but refused to tell him to whom they had paid the money. The witness testified that at this time they had in the store only 75 to 100 bunches of bananas and a small quantity of cabbage; that the entire stock was not worth to exceed $300.

Defendants’ counsel call attention to some testimony of Mr. Porbush which they claim has a tendency to show that Mr. Porbush was only giving his judgment upon these matters, and that he was not in a position to judge of the amount of goods which defendants could handle in a given time. He testified:

“I said something to them about having had a larger quantity of fruit than they could use in their business, and they said they got rid of it; they found places for it; that they had connections in Elkhart, in Battle Creek, and surrounding towns, and that they were able to use a larger amount of fruit than usual. But, to my knowledge, they had the same connections years ago. * * * To the best of my knowledge, they would use in that time about a car load of fruit every ten days. I know of their having bought of others. * * * I possibly shipped them two car loads each month.”'

The court charged the jury that:

“Unless the plaintiff shows by a preponderance of the evidence, to your satisfaction, the fraud charged, the plaintiff cannot recover.”

Also:

“If you find that the plaintiff, or its agent, -having full knowledge of the fraud, saw fit to overlook it, and to base no claim upon it, but made another and an entirely different arrangement, and one incompatible with any claim of fraud, then that would be a waiver of the fraud.”

The court also instructed the jury that the defendants were entitled to an exemption of $500 in their business, and that:

“I do not understand, however, that the plaintiff makes any claim that there was any fraud in disposing of exempt property, so that you will have no occasion to consider that proposition, except as possibly it might have an influence one way or the other as bearing upon the question of fraud.”

It is claimed by the plaintiff that each of these instructions was erroneous.

There was nothing in the cáse whatever having any reference to exemptions, and we think the instruction on this question might have been very misleading to the jury.

On the question of waiver, it appeared that, when Mr. Forbush was at Kalamazoo, the defendants told him that they would send a draft to him for $500 that same night to apply on the claim, and would send the $220 balance on receiving another car load of fruit, which they had ordered; that they never sent the $500 draft as agreed, and no more fruit was furnished. We think the court was in error in his instruction to the jury in permitting them to pass upon the question whether there was a waiver of fraud. There is no testimony showing such waiver.

We think the court, under the testimony given by the plaintiff, should have directed a verdict in its favor, as the cross-examination of Mr. Forbush cannot be construed as claimed by defendants’ counsel. The court cannot properly submit to the jury facts of which the testimony is all one way. Hunt v. Order of Chosen Friends, 64 Mich. 671 (31 N. W. 576 ). See Folkerts v. Standish, 55 Mich. 463 (21 N. W. 891); Township of Medina v. Perkins, 48 Mich. 67 (11 N. W. 810). The defendants were in court, and failed to take the stand as witnesses in their own behalf to contradict any part of the testimony given by plaintiff’s witnesses. If the facts testified to by For-bush were not true, the defendants were there to disprove them. The facts, therefore, must be taken as true, and the court should have so instructed the jury. We think the plaintiff made out a case showing that the defendants purchased these goods with the intent on their part at the time of the purchase not to pay for them.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    ALBION STATE BANK v. KNICKERBOCKER.

    1. Evidence — Insolvency.
    The insolvency of an indorser of a note is sufficiently shown, upon a bill by the payee to enforce collateral security, by evidence that an execution against him was returned unsatisfied, and his own testimony that he has at no time been in financial condition to pay the note.
    2. Mortgages — Intent — Contemporaneous Statements — Res Gest®.
    Where a mortgage purported to secure the mortgagee against liability on all notes and obligations made by the mortgagor and indorsed by the mortgagee, or signed by him, as accommodation maker or otherwise, for and with the mortgagor, but limited the obligations to a certain amount, statements made by the mortgagor, at the time the mortgage was executed, that he gave -it to secure three certain notes, which aggregated the amount stated therein, while the liability of the mortagee as accommodation maker exceeded that amount, are competent evidence, as part of the res gestae, to show the intent of the mortgagor in giving the mortgage.
    3. Same — Subrogation.
    Where a mortgage was given to secure the mortgagee against liability as indorser of certain notes of the mortgagor, both being at the time insolvent, the security immediately inured to the benefit of the holder of the notes, whose interest could not be devested by the act of the mortgagee in assigning the mortgage in trust for other creditors of the mortgagor, the trustee having notice of the interest claimed.
    Appeal from Calhoun; Smith, J.
    Submitted October 5, 1900.
    Decided December 4, 1900.
    Bill by the Albion State Bank against Charles R. Knickerbocker, William B. Knickerbocker, the Jackson City Bank, Nathan S. Potter, and Jennie P. Goodwin, as administratrix of the estate of William F. Goodwin, deceased, impleaded with the First National Bank of Albion, to enforce an equity in a real-estate mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      A. M. Culver and John C. Patterson, for complainant.

      Thomas PJ. Barlcworth, for defendants Knickerbockers, Jackson City Bank, and Potter.

      Parkinson & Campbell, for defendant Goodwin.

       Rehearing denied May 21, 1901.

   Long, J.

This bill was filed to enforce an equity in a real-estate mortgage security given by a principal debtor to his accommodation maker on certain notes. It appears that on February 4, 1896, William B. Knickerbocker was engaged in the milling business at Albion, under the name of the Albion Milling Company. He was indebted to the complainant in the sum of $5,000, for which he gave a note, with his father, Charles R. Knickerbocker, as accommodation maker. About April 21st, William B. became financially embarrassed, and gave his father a mortgage for $31,500, pajmble six months thereafter, with the following statement in the mortgage:

“It is hereby expressly understood and agreed that this mortgage is given to the said party of the second part to indemnify and secure him against all notes and obligations made by said William B. Knickerbocker, and indorsed by said party of the second part, or signed by him, as accommodation maker or otherwise, for and with the • said William B. Knickerbocker, such notes and obligations amounting to said sum of $31,500.”

This mortgage covered the real estate owned and occupied by the mortgagor, consisting principally of his mill and premises appurtenant thereto. Two other mortgages, to secure other creditors, were given contemporaneously with this instrument, as second and third mortgages, but they need not be considered in this case. The complainant brought suit on this $5,000 note against William B. and Charles R. Knickerbocker, and obtained judgment. Execution on this judgment was issued, and returned unsatisfied. On June 20, 1896, Charles R. Knickerbocker executed and delivered an assignment of said mortgage to Nathan S. Potter, of Jackson, as trustee for the Jackson City Bank, the First National Bank of Albion, and Jennie P. Goodwin, as administratrix of the estate of William-F. Goodwin, deceased, and thereafter Charles R. Knickerbocker and the other defendants refused to recognize the complainant here as having any interest in said mortgage.

The bill was filed to have set aside the assignment of such mortgage; to have it declared void; to have defendants required to surrender such assignment to be canceled; and to have determined the amounts of all bona fide notes or obligations signed by-Charles R. Knickerbocker, as accommodation maker or otherwise, for William B. Knickerbocker, and owned and held by the First National Bank of Albion, the Jackson City Bank, and Jennie P. Goodwin, administratrix. The bill asks that a receiver be appointed to take charge of the property, to sell the same, and pay over the proceeds of such sale to complainant and to defendants holding bona fide notes or obligations at the date of said mortgage, signed by Charles R. Knickerbocker as accommodation maker for William B. Knickerbocker, in such amount or proportion as may be determined to be just and equitable under the provisions of said mortgage. It is alleged in the bill that both Charles R. and William B. Knickerbocker were insolvent at the time of the giving of the mortgage and at the time of the assignment of it before referred to. The court below granted a decree in accordance with the prayer of the bill. The defendants have appealed.

The defendants say that, when the mortgage in question was given, it was ascertained by the creditors that the milling business would be greatly damaged by the cessation of business, and that the value of the property covered by the mortgage would be largely depreciated thereby; that complainant was asked to join with the others in a proposed reorganization of the milling company; and that it refused to do so, or to take part in any effort to conserve the assets of the milling company or continue the operation of the mill, but demanded payment of its $5,000 note, which it claimed was secured under the first mortgage, regardless of any other claim or interest involved; that, after these efforts to induce complainant to join in the reorganization of the business had failed, then Charles R. Knickerbocker assigned to the other defendants this first mortgage, they accepting the same in payment of their respective claims to the amount of their proportionate interests; that the reorganization was then effectedj and the property has since been in the possession of the new corporation, representing the defendants the Jackson City Bank, Nathan S. Potter, Jennie P. Goodwin, administratrix, and the First National Bank of Albion, and the creditors interested in the other mortgages, and some unsecured creditors, to whom stock in the new company has been assigned. It is contended by the defendants that this mortgage was a mere personal indemnity to the mortgagee, and could by him be used in .any honest way for his own protection against the obligations he had assumed for William B. Knickerbocker, and that the disposition he actually made of the mortgage was within his rights, and could not, in any event, be construed as the perpetration of a fraud’ upon complainant. It is also claimed that, while the evidence probably shows the insolvency of William B. Knickerbocker, there is nothing in the record which would warrant the court in finding that Charles R. Knickerbocker is insolvent, although it is said by counsel that this is not material, as affecting the legal rights of the defendants.

We may dispose of this last proposition first. We think the record shows conclusively that he, as well as William B. Knickerbocker, is insolvent. An execution was issued against them both, was returned unsatisfied as to both, and Charles R. Knickerbocker himself testified: “When I was sued with my son on the $5,000 note, I was not in a financial condition to pay it, and have not been at any time since.”

Some further statement of facts becomes necessary. It appears that the indorsement by Charles R. Knickerbocker as accommodation maker upon notes amounts to more than the $31,500 stated in the mortgage. He had indorsed other notes for William B., the total of said indorsements being $48,500. It is claimed by the defendants that, if this $31,500 mortgage can be regarded as an indemnity to secure creditors, it cannot be limited to the three creditors making claims under it, to wit, the complainant for $5,000, the Jackson City Bank for $8,000, and the First National Bank of Albion, which makes the total of $31,500, but that all creditors who hold notes signed by Charles R. Knickerbocker, as accommodation maker for William B. Knickerbocker, must be regarded as included within the mortgage. On the other hand, it is contended by counsel for complainant that the' three creditors alone must be subrogated to Charles R. Knickerbocker’s rights under the mortgage, as their claims aggregate just the $31,500 mentioned in it. Complainant also introduced testimony which it is claimed shows the fact that it was the intention of William B. Knickerbocker to secure only these three claims by the mortgage given. Warren S. Kessler, who was called as a witness, testified that he was asked to sign the third mortgage as trustee and as a witness to the second one; that he was present when all three were executed, and that at the time of such execution William B. Knickerbocker stated to him that he was in trouble, and had to give mortgages; that he gave the first, to the amount of $31,500, to his father to indemnify him against indorsements he had made for him as follows: To the First National Bank of Albion, $18,500; to the Albion State Bank, $5,000; and to the Jackson City Bank, $8,000. Wilbur P. Robertson, the bookkeeper for William B. Knickerbocker, mortgagee in the second mortgage, and a witness to the present mortgage, testified that at the time of the execution of the mortgages, in the course of a general conversation, William B. Knickerbocker stated to Mm that the First National Bank was secured for $18,500, the Jackson City Bank for $8,000, and the Albion State Bank for-$5,000. He said:

“ I cannot say whether he said this just at the time the mortgage was signed or not. There were present Mrs. Knickerbocker, Mr. Weeks, Mr. Kessler, and myself. It was between 10 and 12 o’clock at night, at Mr. Knickerbocker’s residence. * * * I think Mr. Knickerbocker made the statement to me that those were the beneficiaries as he intended. * * * I do not think he made any statement that that was all the paper his father was on. * * * I did not understand that William B. wanted to secure his father for every bit of liability, but was to secure him against these three specific items.”

Eugene P. Robertson testified that William B. stated to him that the mortgage was given to secure these three claims. The witness was president of the complainant bank. No testimony was given contradicting this testimony, and William B. Knickerbocker was not called as a witness to dispute any of the statements. We think it establishes beyond controversy that it was the intent of the mortgagor to secure the payment of these three notes and no others.

Defendant Goodwin’s counsel contend that it is evident the maker of the mortgage had no idea of directly securing creditors, but only to secure his father; that nothing upon its face indicates these creditors as beneficiaries; and that it cannot be made to operate in their favor, except through the court in the exercise of its equity powers, and under circumstances that will wrong no one and work no injustice. It is admitted by counsel for the Knickerbockers, the Jackson City Bank, and defendant Potter that the general doctrine gives to the principal creditor the right of subrogation, in case of the insolvency of his surety and debtor, to any securities which may be held by the surety, but he denies that the rule is applicable to this case. He invokes thé doctrine that where a mortgage is not given to secure a debt, but to indemnify a surety, then the security does not, in the first instance, attach to the debt as an incident to it, but whatever equity may arise in favor of the creditor with regard to the security arises afterwards, and comes into existence only upon the insolvency of the parties holden for the debt; that until this equity arises the surety has a right, in equity as well as at law, to release the security; that the equity of the creditor in such case not being an inherent one, growing out of the contract, but resulting simply from a state of facts which entitles him to equitable relief, and becoming fixed only by the interposition of a court of equity, relief cannot be furnished, even though insolvency has intervened, unless the security is still retained by the surety at the time of the application of the creditor. On the other hand, it is claimed by counsel for complainant that, the mortgage security having been given by the principal debtor when insolvent to secure his indorser and accommodation maker for such collateral liability, it immediately inured to the complainant’s security and benefit in equity; that Charles R. Knickerbocker held the legal title in trust for complainant and other creditors of the class designated, and that he had no authority to divert such trust security, and deprive the complainant thereof; that Potter, having both actual and constructive notice of complainant’s rights, took the assignment subject to such rights, and that a court of equity can and will, under such circumstances, vacate such assignment, and restore the complainant to its vested rights, and by a receiver enforce such security, and divide the proceeds thereof as the donor of said trust originally intended; that, it appearing ,in this case that the mortgagor and mortgagee were both insolvent, the said security at once inured to complainant’s benefit as the creditor and holder of said note; that it became subrogated to its just share of the mortgage security as a vested right; and that a court of equity will lend its aid to make such security effectual for the purpose intended.

The mortgage in question purports to secure the mortgagee against his indorsements upon all notes and obligations made by William B. Knickerbocker, and indorsed by his father”as accommodation maker or otherwise, yet it limits such obligations to the sum of $31,500. The testimony shows that he was accommodation indorser upon notes amounting to $48,500. This testimony was competent for the purpose of showing the intent of the mortgagor in the making of the mortgage. The statements were made at the very time of the execution of the instrument, and were a part of the res gestee. That such testimony is competent is supported by the case of Moses v. Murgatroyd, 1 Johns. Ch. 119 (7 Am. Dec. 478). The rule is stated in Jones, Chat. Mortg. § 342, that the declarations of the mortgagor, made at the time of the execution of the mortgage, are admissible in evidence as part of the res gesteej and this doctrine is supported by the case of Bushnell v. Wood, 85 Ill. 88. Taking the intent of the mortgagor, as shown by this testimony, and redding the statement in the mortgage that it was to indemnify and secure Charles R. Knickerbocker on all notes and obligations indorsed by him as accommodation maker, such notes and obligations amounting to $31,500, it becomes evident that the only notes intended to be secured were the three notes already mentioned. The testimony also shows that the mortgage was not given merely as a personal indemnity to Charles R. Knickerbocker, but was given to secure the payment of the debts represented by these three notes.

We think it is the settled rule that, when collateral security is given or assigned for the better protection or payment of the debt, it shall be made effectual for that purpose; and to make it thus effectual a court of chancery will lend its aid, where it is made apparent, either by the instrument itself or by the parol testimony in the case, that it was the intent of the principal debtor to secure the debt by the security given to the surety, and the creditor in such case will be subrogated to the rights of the surety in the property held by him. 19 Am. Law Rev. p. 868. In 2 Brandt, Sur. (2d Ed.) § 324, it is said:

“As a general rule, where a surety, or a person standing in the situation of a surety, for the payment of a debt, receives a security for his indemnity and to discharge such indebtedness, the principal creditor is in equity entitled to the full benefit of that security; and it makes mo difference that such principal creditor did not act upon the credit of such security in the first instance, or even know of its existence. The authorities place the principle upon the ground that, as the security is a trust created for the better securing of the debt, it attaches to it, and hence it is that it may be made available by the creditor, although unknown to him.”

This is supported by a great number of authorities. The rule is laid down in Coleb. Coll. Sec. § 217, that:

“Where the surety himself has received such securities from the principal debtor on account of the obligation assumed, equity creates a quasi trust in relation thereto, in favor of the creditor and of co-sureties, until the debt be discharged. The surety has no right to discharge or defeat such trust.”

It is said in 1 Jones, Mortg. (4th Ed.) § 883a:

“This right exists although the mortgage was given to the surety by the debtor after both had become bound to the creditor, and although there had been no previous agreement that indemnity should be given, and although the mortgage was executed without the knowledge of the creditor.”

In Union Nat. Bank v. Rich, 106 Mich. 319 (64 N. W. 339), the same rule is stated.

The facts show conclusively that the Knickerbockers were insolvent at the time of the giving of the mortgage and at the time that Charles R. Knickerbocker made the assignment to Potter. It is also shown that Potter knew of the claim made by complainant to be subrogated to the rights of Charles R. Knickerbocker under -the mortgage before he took the assignment for the benefit of the other defendants. Under such circumstances, neither Potter nor his beneficiaries can set up the claim of bona fide holders under such assignment.

The court was not in error in the decree made. That decree must be affirmed, with costs to the complainant.

The other Justices concurred.


author: Lons, J.

text:
    KAMMERER v. MORLOCK.
    1. Executors and Administrators — Sale op Real Estate — Fraud.
    Where a sale of real estate by an administrator under order of the probate court was properly advertised, and many bidders were present, and the sale was confirmed by the court, the fact that property which had been appraised at $1,100 was purchased by ,the administrator’s stepfather for $900, and that 17 months thereafter the purchaser conveyed to the administrator, and that at the same sale other property, appraised at $700, was sold for $535, was not sufficient evidence of fraud to warrant setting aside the sales.
    2. Same — Appointment—Notice op Hearing — Discrepancy in Dates — Jurisdictional Defect.
    Where the order and notice of hearing on a petition for the appointment of an administrator de bonis non fixed the time for the hearing as ‘ ‘ Monday, the 9th day of August next,” and the 9th day of August was not Monday, but Friday, and the order appointing the administrator was made on Monday, August 5th, the discrepancy in the date was fatal to the jurisdiction of the court, and hence all subsequent orders licensing and confirming sales of real estate by such administrator were void.
    3. Same — Bill to Set Aside Sale — Minor Heirs — Limitations.
    3 Comp. Laws 1897, § 9128, provides that a suit by a minor heir to set aside an administrator’s sale of real estate must be brought within five years after he becomes of age. Held, that, where a sale was void because of the illegal appointment of the administrator by whom it was made, a bill to.set aside such sale could be maintained only by those heirs of the deceased who had not acquiesced in such sale for more than five years after arriving at their majority.

      Appeal from Berrien; Coolidge, J.
    Submitted October 5, 1900.
    Decided December 4, 1900.
    Bill by Mary Kammerer and others against Frank Morlock and others to set aside an administrator’s sale. From a decree dismissing the bill, complainants appeal.
    Reversed.

      George W. Bridgman and Edward Bacon, for complainants;

      O’Hara & O’Hara, for defendants Morlock.

      N. A. Hamilton, for other defendants.
   Lons, J.

This bill was filed to set aside certain administrator’s sales of two parcels of real estate in the city of St. Joseph. One parcel is designated in the bill as the “Dwelling-House Property,” and the other as the “Boarding-House Property.” They both belonged to Peter Breidinger at the time of his death, June 28, 1874. He left surviving him his widow and the sis complainants, his children and heirs at law, who were born, respectively, as follows: Mary Breidinger (now Kammerer), September 14, 1861; Sophia Breidinger (now Weist), July 22, 1865; Peter Breidinger, May 3, 1867; Lizzie Breidinger (now Lorenz), February 15, 1869; Frank Breidinger, April 3, 1871; Nicholas Breidinger, March 5, 1874. Frank Morlock, one of the defendants, was appointed administrator of the estate, July 14, 1874. He filed his inventory and appraisement of said estate, showing the dwelling-house property appraised at $1,000, and the boarding-house property at $1,500. There was certain other real estate, which it is not necessary here to state. The personalty was.appraised at $245. Settlement was had in 1876, before the probate court, the account showing payment to outside creditors of claims originating before the death of Peter Breidinger amounting to $1,500, and the account closes with the statement: “Balance due administrator, $68.46; due creditors from estate, $800.”

The widow and her children continued in possession of the two properties until her death, in June, 1878. In July of that year, Frank Morlock filed a petition to be appointed administrator de bonis non of the Peter Breidinger estate, and the following month was duly appointed as administrator de bonis non. Appraisers were appointed, as well as commissioners to audit claims. The appraisers filed their inventory, stating the valuation of the boardinghouse property to be $1,100, and the dwelling-house property to be $700, and the personal property $111.50. In August, 1878, Morlock filed in the probate court his petition for license to sell both parcels of real estate, stating that the amount due to creditors was $1,300. In September, Conrad Kammerer, on petition of Morlock, was appointed guardian of the children. The two pieces of property were sold January 11, 1879, upon an order of the probate court, for the purpose of payment of the debts. The dwelling-house property, according to the report of the administrator, was sold for $525, and the boardinghouse property for $900; the sale of the boarding-house property being for one-third of the purchase price in cash, and the remainder secured by mortgage on the premises sold, payment to be made within two years from date of sale, with interest at 7 per cent. A report made by the commissioners on claims was filed in February, 1879, showing claims allowed amounting to $1,090.21. In May, 1881, Kammerer resigned his guardianship of the children, and defendant Morlock was appointed in his place, although it is claimed he never took the oath or filed any bond or made any report as such guardian; but it is claimed by the defendant that he went on paying the debts as administrator, and as guardian of the children paid to Mary and Sophia $97 each, and in May, 1888, paid two more of the children $103.75 each, and took their receipts in full for their share of the estate.

It appears from the testimony that Morlock, as administrator, sold the dwelling-house property to Christian Melsheimer, and the boarding-house property to his stepfather, Christian Stein. In. June, 1880, Stein and wife conveyed their part of the property to defendant Morlock. It is claimed that this sale to Stein was a sham, and made bythe administrator for the purpose of acquiring title in that property to himself. As to the sale of the dwelling-house property, it is claimed that was fraudulent, in that it was sold for less than half its value. The court below found against these contentions; and, we think, very properly. There is no evidence in the record which would justify us in setting aside the sales on the ground of fraud. The dwelling-house property, which sold for #525, was inventoried at #700. The boarding-house property, which sold for #900, was inventoried at #1,100. The sale was advertised, and many bidders were present, among them relatives of the Breidinger family. One Nicholas Kibler, grandfather of complainants, made a bid on the boardinghouse property, but decided not to take it, and paid #100 to be released from his bid; and, so far as this record shows, defendant Morlock has never claimed any interest in that property since.

It is claimed, however, that Stein was without means to pay his mortgage. The record shows that he held the property until June, 1880, when he deeded it to Morlock. According to the account of Morlock, in the May previous he had received on the Stein mortgage #655.65, and the mortgage was discharged May 31, 1880. The sale made by Morlock of these two pieces of property was duly reported to the probate court, and confirmed by that court, in February, 1879.

It is further claimed by complainants that the order appointing Morlock administrator cle bonis non is void for want of publication and notice required by 3 Comp. Laws 1897, § 9310; that the order and notice of hearing for the appointment fixed the time for hearing as August 9, 1878; that the order read that the hearing was to be had on “Monday, the 9th day of August next,” while Monday was not the 9th day of August, but the 5th day; that this was fatal to the jurisdiction of the probate court; and that all subsequent orders licensing the sale of real estate, and confirming the report of such sales, were void for that reason. The original notice of hearing was for Monday, which was August 5th, and the hearing was presumably had on that day. This was not the date fixed in the order for the hearing, and an appointment could not be made on the 5th, as the order stated that the hearing would take place on the 9th. We think the discrepancy in the date was fatal to the jurisdiction of the probate court, and that all subsequent orders licensing the sale of real estate, and confirming the report of such sales, were void. Gillett v. Needham, 37 Mich. 143. It follows that the sales of those two parcels must be set aside.

There is not sufficient proof in this record by which this court can enter upon an accounting between the parties. The decree below will be reversed, and the case referred back to the court below, where an accounting may be had. It appears that but two of the complainants, to wit, Frank and Nicholas Breidinger, can take advantage of this error, and that they alone can maintain this bill. Section 6075, 2 How. Stat.; also section 9128, 3 Comp. Laws 1897. The other complainants had rested upon their fights more than five years after becoming of age. Therefore the sales can be opened only in the interests of these two. The accounting will be had on the basis of their interest in the rents and profits of the property. It has been seen, however, that the administrator has paid, under the orders of the probate court, debts against the estate, his own debt included. It would be inequitable to say that these complainants should have their shares in the property, together with rents and profits, unless it be also provided that the administrator be repaid the amount of moneys, with interest thereon, which he has paid out upon the debts of the estate. It is therefore decreed accordingly. These two complainants will recover their costs of this court.

The other Justices concurred.


author: Montgomery, O. J.

text:
    PARKINSON v. WOULDS.
    1. Justices oe the Peace — Jurisdiction—Title to Land — Failure to Give Bond — Constructive Admission.
    • 1 Comp. Laws 1897, §§ 782-784, provide that, in every action before a justice of the peace involving title to land, the defendant may give notice under the general issue that title is involved, and shall enter into a bond to plaintiff, at the time of tendering such notice, to pay any judgment that may be rendered against him in the circuit court; and section 786 declares that, if such bond is not given, the justice shall have jurisdiction of the cause, and defendant shall be deemed to have admitted any claim of title made by plaintiff in his declaration, and shall be precluded from all evidence drawing in question the title. Held, that, where plaintiff in an action before a justice of the peace for breach of a covenant of warranty alleged that defendant had no title to the property, de- • fendant, by his failure to file a bond, admitted that he had no title, and hence could not deny the allegation.
    2. Breach oe Warranty — Damages.
    An action for breach of covenant accrues upon the execution of a warranty deed by one having no title, and the grantee,’ though he gain possession under such deed, may recover the consideration paid by him, with interest.
    Error to Livingston; Smith, J.
    Submitted October 11, 1900.
    Decided December 4, 1900.

      Assumpsit by Sarah Parkinson against Thomas Woulds for breach of warranty in the sale of real estate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Louis E. Howlett, for appellant.

      B. T. O. Clark and William P. Van Winkle, for appellee.
   Montgomery, O. J.

This action was commenced in justice’s court. The plaintiff declared verbally for breach of warranty deed, and damages accruing therefrom, and later amended the declaration verbally as follows:

“For obtaining money falsely and fraudulently from’ the plaintiff upon the sale of certain land in the village of Brighton, which land he warranted to defend the title, and when the said defendant had no title whatever, and was not the owner thereof, to said land, and, by reason of said warranty of title as made by the defendant on said representations, he, the said defendant, falsely and fraudulently obtained from said plaintiff,, by reason of said false and fraudulent representations and warranty of title to said land, to wit, the sum of forty dollars, and other expenses and trouble that said plaintiff has been put to on account of said false and fraudulent representation so made by said defendant, to her damages one hundred dollars.”

The plea was the general issue. On the trial at the circuit the plaintiff offered in evidence the deed from defendant, and testified that she paid defendant $40 on the purchase of the land. The deed contained the usual covenants of warranty, including a covenant -that the grantor was, at the date of the deed, seised of the premises in fee simple.

The circuit judge was of the opinion that the case was one involving title to land, and as the declaration had asserted the warranty, and alleged that the defendant had no title whatever, he was bound to give notice that the title to land would come in question, and tender a bond, under section 782 et seq., 1 Comp. Laws 1897, or must be held to have admitted the averments of the declaration as to title, under section 786, which reads as follows:

“If such bond be not delivered and such fees and costs paid as herein directed, the justice shall have jurisdiction of the cause, and shall proceed therein, and the defendant shall be precluded in his defense from all evidence drawing in question the title to lands; and any claim of title to lands made by the plaintiff in his declaration, and therein described, shall be deemed to be admitted by the defendant.”

Section 704 also provides that no justice of the peace shall have cognizance of any action where the title to real estate shall come in question, except as provided in subsequent sections.

The question is, Did the pleadings in this case raise a question as to the title to land ? This question seems to have been determined in the affirmative in the early case of Brooks v. Delrymple, 1 Mich. 145. In that case the declaration averred that the plaintiff was the owner of about 60 acres of land; that defendant fraudulently represented that he had a valid tax title to the 60 acres; that plaintiff, ignorant of the nature of defendant’s title, and induced by the threatened loss of his land, paid $85 to defendant for his pretended tax title; that in fact defendant had no just title or claim to the land. The court said:

“An examination of the record shows very conclusively that the title to real estate was involved. The fraud charged upon the defendant below consisted in representing himself as having title to the land described in the declaration. Upon this representation the plaintiff below parted with his property. * * * It was therefore incumbent on the plaintiff on the trial in the court below to show the falsehood of the representation. To do this, he must necessarily have shown that the defendant had in fact no title to the land. It is clear, therefore, that the title of the defendant below to the land in question must have been drawn in question, and the justice of the peace had no jurisdiction of the case.”

That case was brought in the circuit, and the court properly held that the plaintiff was bound to prove the averments in his declaration; but the question whether a justice of the peace had jurisdiction of the case was involved, and decided in the negative. This was held as to a declaration the averments in which were substantially the same as in the present case. It follows that on filing this declaration an issue as to title was presented, and defendant, having failed to file the required bond, could not dispute the averments in plaintiff’s declaration.

The recovery permitted was the consideration paid, with interest. The breach of the covenant bccurred when the deed was made. Sherwood v. Landon, 57 Mich. 219 (23 N. W. 778). And this is not affected by the fact that the plaintiff obtained possession. 8 Am. & Eng. Enc. Law (2d Ed.), 90. On a breach of covenant of seisin, the measure of damages, prima facie, is the consideration paid, with interest.

It is contended in this case that the plaintiff’s possession had ripened into a title; but the period of the statute of limitations had not run when the suit was brought, and no such issue was presented.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    BURT v. GREENE.
    1. Contracts — Default in Payment — Common Counts.
    An action to recover an installment of money due under a contract for the sale of plaintiff’s rights in a secret, society, together with the property of the order, may be brought on the common counts in assumpsit, where plaintiff has fully performed, and nothing remains to be done but the payment of the money.
    2. Same — Breach.
    One who sells his rights in a secret society under an agreement which provides that he shall have “nothing further to do with the conferring of the several degrees,” but will furnish information when requested, is at liberty to answer a question as to the ritual, when present as a spectator, in connection with the conferring of a certain degree.
    3. Same — Cross-Examination—Harmless Error.
    Where, in an action to recover an installment due on a contract for the sale of rights in a secret society, defendant contended that plaintiff had broken the contract, by reason of his failure to make a translation of the ritual, and plaintiff claimed that the same had not been made because of defendant’s failure to furnish him with the ritual for translation, and the jury rendered a verdict for plaintiff, the fact that the court refused to permit defendant to show plaintiff’s incapacity to make the translation, on cross-examination, was harmless, since the jury must have found that defendant had not given plaintiff an opportunity to make the translation.
    Error to Wayne; Lillibridge, J.
    Submitted October 11, 1900.
    Decided December 4, 1900.

      Assumpsit by Calvin C. Burt against George F. Greene" to recover an amount due upon a contract of sale. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hawley & Mertz, for appellant.

      Galvin C. Burt (John Galloway, of counsel), in pro. per.

   Montgomery, C. J.

The plaintiff and defendant, on tbe 14th day of April, 1897, entered into a written contract by which the plaintiff agreed to sell to the defendant “all his right and title in and to the organization or rite known as the ‘Ancient Egyptian Masonic Rite of Memphis,’ of which organization or rite the party of the first part [the plaintiff] is now undisputed sole owner, controller, and supreme grand master, magi of the continent of America (civilized cosmos),” etc., and the property of the organization. For this, defendant was to pay $1,000 per year, in certain stipulated payments, “ provided that the income derived from the sale of charters for lodges’ membership fees shall allow of it.” The defendant made a number of payments, and then ceased, claiming that the plaintiff had not fulfilled the contract on his part, and was not fulfilling it; and this suit was brought, and a recovery had for two installments, of $40 each, and interest. The claim of the defendant that the plaintiff had not fulfilled the contract rested in part on the undisputed fact that the plaintiff did not, as his contract required, “ translate into the English language the ritual of the various degrees of said rite, from the forty-fifth upwards, at any time when said party of the second part [the defendant] shall furnish a stenographer to assist therein without expense to the party of the first part.” Upon this point the plaintiff claimed that he was always ready and willing to make this translation, but could not, because the defendant would not send him the original, from which to make the translation. The defendant claimed that he did furnish the stenographer, and was ready to furnish the original, but the plaintiff did not make the translation, either because he would not unless he could get paid for it, or because he could not; and defendant claims that he was unfairly debarred from demonstrating plaintiff’s incapacity on his cross-examination. Defendant claimed, also, that plaintiff was violating that part of the contract which provided that he should have ‘ ‘ nothing further to do with the workings or conferring of the several degrees of the said rite, nor with the money of the organization, except what is paid him under this agreement, and that he will have nothing further to do with said organization;” and defendant relied upon this breach of the contract as a bar to the plaintiff’s recovery.

Error is assigned on the refusal of the court to exclude the contract relied upon, the ground of the objection being that the plaintiff is seeking to recover damages for the breach of an executory contract. Defendant’s counsel misconceive the plaintiff’s position. The plaintiff is seeking to recover an installment of money due on an agreement which he claims to have fully performed as to all its precedent requirements, and claims that nothing is to be done or required further on either side, except the payment of money. If the claim is sustained, the common counts are sufficient. 1 Chit. Plead. 339.

It is contended that a verdict should have been directed for the defendant on the ground that the undisputed' testimony shows that plaintiff violated that portion of his contract in which he agrees that he will have nothing further to do with the workings or conferring of the several degrees of the rite. In the brief of plaintiff’s counsel, certain testimony bearing on this point is stated to have been omitted from the printed record. An examination of the original record discloses that the same corresponds with the printed record. The record does not show that all the testimony is returned. On this branch of the case the court charged the jury as follows:

“The testimony is, as I recollect it, upon that point,' — - and I wish to be corrected if I am wrong, — as I recollect it, it is that some person (a Mr. Currie, I think it was) initiated Mr. Dubois into some of the degrees between the forty-fifth and the ninetieth, or he was conferring degrees.
“Mr. Burt: Mr. Dubois was a member of the order at the time.
“The Court: I understand that Mr. Dubois was a member of the corporation, but the testimony shows that they were conferring certain degrees on him at that time. He said that they were conferring some degrees there, and that Mr. Burt was not present when they were conferring the degrees, but that at a certain time they called Mr. Burt in and asked him some questions; and Mr. Winterbüry said he did not know whether Mr. Burt answered the questions or not.
“Mr. Hawley: He said that Mr. Burt came in, but he could not say what Mr. Burt said.
The Court: I understood him to say he did not know what he said. I leave it for you to say what was done at the house there. It is claimed on the part of the plaintiff that there was no violation of this agreement that he would not have anything further to do with the workings of these degrees. It is claimed on the part of the defendant that he violated his part of it. It is for you to say whether, in view of the testimony and what you remember of it, there was a violation of that agreement at that time. . * * * My judgment is that there is nothing in this case which prevents Mr. Burt from being present as a spectator at any time when degrees were being conferred, but that any act or assistance or active work on his part would be a violation on his part of it. Regarding the claim of the defendant that Mr. Burt interfered at the .time of conferring degrees upon Mr. Dubois, the jury is instructed that, if what Mr. Burt did was simply to answer a question put to him in connection with the conferring of said degree, it would be proper, and in line with the contract as to furnishing information when requested, and would not be interference.”

We think this instruction presented the issue very fairly.

The other questions relate to the claim that plaintiff failed to perform the provisions of his contract relating to the translation; the contention of defendant’s counsel being that they were not permitted to cross-examine the plaintiff fully on the subject of his ability to make the translation, which he had agreed to do on request. The jury must have found that the defendant never offered the plaintiff the opportunity to make the translation contemplated by the agreement. The default, if any, was, therefore, defendant’s.

We discover no prejudicial error. The jury determined the questions of fact in favor of plaintiff, and the judgment will be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    HALL v. ERKFITZ.
    1. Mechanics’ Liens — Ownership of Land — Husband and Wipe.
    Land owned by a wife cannot be subjected to a lien for materials entering into the construction of a building erected thereon for her husband under a contract to which she was not a party; especially where no notice was given her that such materials were being furnished.
    O. Same — Bill to Enforce — Parties.
    A building erected under contract with a husband upon land owned by the wife cannot be subjected to a lien for materials entering into its construction, where the notice of claim' of lien was served upon the wife alone, and the bill to enforce the same made her the sole defendant.

      Appeal from Wayne; Waite, J.
    Submitted October 11, 1900.
    Decided December 4, 1900.
    Bill by Edmund Hall against Caroline Erkfitz to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Selling & Hatch, for complainant.

      Lemuel H. Foster, for defendant.
   Moore, J.

This is a proceeding to enforce a lien for lumber which was used in the construction of a building erected upon premises owned by the defendant. The court below dismissed the bill of complaint, and the case is brought here by appeal.

The record shows that the defendant has been the owner of the land upon which the building was erected, and her deed has been upon record, many years. The record does not show whether it was part of her homestead or not, but the land upon which the building was erected was adjacent to the house in which she lived, and has been used as a garden. Her husband desired to have a house erected "upon this land. She claims that she was opposed to it. His testimony is also to the same effect. However, an agreement was made between the husband and William Seibert-that Seibert should build for Mr. Erkfitz a house upon this land for $760. This agreement was reduced to writing, and, though not signed by the parties, they are both agreed that it is the only contract ever made between them. It is the claim of Seibert that Erkfitz stated in the presence of his wife that he was the owner of the land, and that she said nothing. Mr. Erkfitz and his wife both deny this statement. Mr. Seibert bought from the complainant, through his foreman, Mr. Ross, a quantity of lumber, and proceeded with the work upon the building until the latter part of April, 1899, when he was sued, and Mr. Erkfitz was garnished. He then declined to finish the building. When the garnishee suit was commenced, Mr. Erkfitz ha¿ paid Mr. Seibert $400, part of which was paid to the complainant ; and all of it was paid for. material and labor, except an amount retained by Mr. Seibert which amounted to the usual wages paid carpenters for the time he worked.

It is the claim of Mr. Erkfitz that, when he learned that the lumber was coming from the yard of the complainant, he inquired of Mr. Ross whether he should pay Mr. Seibert or the complainant for the lumber, and was assured that it would be all right to pay Mr. Seibert. Mr. Ross admits having a talk with him upon this subject, but denies that he authorized the payment to be made to Mr. Seibert. Mr. Erkfitz, after the refusal of Mr. Seibert to go on with the work, completed the house himself; claiming that it cost him, including the $400 paid to Mr. Seibert, $850. He produced on the trial receipted bills amounting to $767.30. April 28, 1899, the complainant served a written notice upon Mr. Erkfitz, directed to him, that he was furnishing lumber and material to go into this building. No notice of this kind was served upon Mrs. Erkfitz. Upon J'une 7, 1899, a claim of lien was filed, in which it was stated that complainant claimed a lien on the land and building of which Caroline Erkfitz was the owner, describing the land. A notice of this claim of lien was served on Mrs. Erkfitz June 8, 1899. No notice of this claim of lien was served upon Mr. Erkfitz. The bill of complaint was filed the last of June. Mrs. Erkfitz was made defendant. Mr. Erkfitz was not made a party to the proceeding. After the testimony was all taken, counsel for complainant requested leave to make Mr. Erkfitz a party to the bill, with proper averments, if the court should think it necessary that he should be a party. The record does not disclose that the judge made any disposition of this request. Mr. Erkfitz was not made a party to the bill, and is not before the court in this proceeding. The circuit judge found that there was no privity of contract between complainant and the defendant, who was the owner of the real estate. He also found that complainant had not taken the necessary steps to enforce a lien against the building, and, as before stated, dismissed the bill of complaint.

A. great many questions are raised in the case and argued by the solicitors, but we do not deem it necessary to discuss them all. The right to obtain a lien for materials furnished is a purely statutory one. It is in derogation of the common law, and the essential requirements of the statute must be observed. Wagar v. Briscoe, 38 Mich. 587; Knapp v. Swaney, 56 Mich. 345 (23 N. W. 162, 56 Am. Rep. 397); Sheridan v. Cameron, 65 Mich. 580 (32 N. W. 894); Lindsay v. Huth, 74 Mich. 712 (42 N. W. 358); Peninsular General Electric Co. v. Norris, 100 Mich. 502 (59 N. W. 151). Mrs. Erkfitz was not a party to the contract. She not only did not consent to the creation of a lien upon her land, but it affirmatively appears that she was not a party to the contract, and that it was made solely with her husband. No notice was served upon Mrs. Erkfitz that complainant was furnishing material, as required by statute. A lien would not be created upon her real estate for material furnished to complete a contract made with her husband, to which contract she was not a party. Notice was not served upon Mr. Erkfitz that complainant intended to assert a lien against his building. A bill of complaint was not filed against him. Section 10718, 3 Comp. Laws 1897, provides the lien shall continue no longer than one year after the statement of lien is filed in the office of the register of deeds, unless proceedings are taken to enforce it. The next section of the statute provides that the proceeding to enforce the lien shall be by bill in chancery. No such proceeding has been commenced against Mr. Erkfitz. The circuit judge was right in his conclusions.

The decree is affirmed, with costs.

The other Justices concurred.