text:
    LYON v. WATSON.
    Trial—Instructions to Jury—Recoupment.
    In an action to recover a balance due on a note given by defendants for timber purchased from plaintiffs, together with an amount alleged to be due the latter under a contract by which they agreed to saw the timber in a workmanlike manner, where defendants admitted the indebtedness, but claimed damages, by way of recoupment, on the ground that the timber was improperly sawed,. an erroneous charge that the claim of damages for defective sawing had no connection with the claim on the note, and could only be shown in connection with plaintiffs’ demand for sawing, and that plaintiffs were entitled to a verdict in any event for the amount due on the note, was cured by a subsequent instruction that, if defendants established their claim to damages in a sum greater than the whole amount sued for (specifying such amount), they should have a verdict for the difference, and that, if the damage so sustained was less than plaintiffs’ claim, the amount of such damage should be subtracted therefrom, and plaintiffs should have a verdict for the balance.
    Error to Muskegon; Russell, J. .
    Submitted April 10, 1896.
    Decided May 26, 1896.

      Assumpsit by Thomas R. Lyon and others against William G. Watson and others for a balance due on a bill for sawing and on a promissory note. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Smith, Nims, Hoyt & Erwin, for appellants.

      George A. Farr (Bunker & Carpenter, of counsel), for appellees.
   Moore, J.

Plaintiffs sued to recover the sum of $11,-089.77, which they claimed was due them from the defendants,—$10,010.29 upon a promissory note, and the balance upon an unpaid saw bill. The sum of $10,010.29 was the amount yet unpaid on a note given by defendants to plaintiff Lyon for $90,000, for part of the purchase price of the timber on half a section of land, which note was indorsed at the date thereof by Mr. Lyon to the plaintiffs in this case. Payments had been made upon the note, from time to time, until all had been paid except $10,010.29. The defendants, on the same day they bought the timber of Mr. Lyon, assumed a contract previously made between Mr. Lyon, Agent, and the Butters & Peters Salt & Lumber Company, wherein the company was to log the timber on said land. At the same time Lyon agreed with defendants that, as often as they paid $10,000 on the note and contract, he would consent to their cutting 1,000,000 feet of timber, and no more. On the same day Mr. Lyon, Agent, made a contract with defendants, agreeing to saw all of said timber in a good and workmanlike manner, at his mills, for $1.75 per 1,000, Scott’s tally. The defendants agreed ‘to pay Lyon, Agent, on the 10th of each month, tor all the lumber sawed the. preceding month, on an [estimate made by H. A. Scott or J. S. Woodruff. It is claimed by defendants that Lyon, in all these contracts, was acting for all the plaintiffs, and that all three agreements were contemporaneous, and together formed but one transaction. It was claimed by way of defense that plaintiffs did not manufacture the lumber in a good and workmanlike manner, and that as a result the logs did not produce as much merchantable lumber as they ought, and that the lumber manufactured was of much less value than it would have been if properly manufactured; and defendants claimed damages, by way of recoupment, to the amount of $35,901.25. In the notice attached to their plea, defendants claimed a set-off of $6,500 for 1,000 logs, but that claim was abandoned in court. At the close of putting in the proof, it was admitted in open court by the attorney for defendants that there was due plaintiffs upon the note, and for the balance of the unpaid saw bill, the sum of $11,089.77, except as the amount was reduced or extinguished by the damages defendants had suffered by way of recoupment. Defendants claimed that they should have a verdict for $24,000, stated in round numbers.

Plaintiffs’ claim in relation to the manufacture of the lumber was that it was properly manufactured; that one Allport, an experienced lumber inspector, was placed by defendants at plaintiffs’ mills to see that the logs were cut to suit defendants; that Mr. Field, a member of defendants’ firm, was at the mills in June, July, and September, while the lumber was in the process of manufacture, and after more than 6,000,000 of feet of it had been cut, and made no complaint to any of the plaintiffs until all of the lumber was manufactured and shipped. Plaintiffs also claim that estimates were made each month by either Scott or Wood-ruff, as provided in the contract, and that each month’s saw bill was paid by defendants. Plaintiffs also claim that during this business transaction a large amount of correspondence was had, and 69 letters were put in evidence, written by defendants to plaintiffs, the last of which was written nearly a year after the lumber had been sawed, and that no complaint was made of the manner in which the lumber was sawed until in the last letter; that, in view of all this, the defendants must be deemed to have waived any defect in the manufacture of the lumber, if any existed. They also claim that defendants had opportunities of knowing all about the manufacture of the lumber when these things were done by them, and that they were bound to use their opportunities. The defendants answer these claims by saying that plaintiffs had agreed to manufacture this lumber in a good and workmanlike manner, and must perform their contract; that, while Mr. Allport was at the mill, he was there only a part of the time; that Mr. Field visited the mill but a few times; that none of the defendants had knowledge of the extent of the defects until long after the lumber had been manufactured; that they cannot be deemed to have waived the defects of which they had no knowledge; that, in relation to the monthly estimates, what they did was simply to make payments, but not settlements; and that they are not concluded from recovering damages by anything they have done. Testimony in detail was offered by both sides to support these various contentions. No errors are assigned by appellants, except as to the charge of the trial judge.

It is insisted by the appellants that the trial judge spoke of the monthly payments as being settlements, and did not leave it to the jury to determine whether they were settlements or only payments. The record discloses that estimates were sent each month, as provided in the contract, and that some of those monthly estimates were paid in full. The charge in relation to that feature of the case was as follows :

“The evidence shows here, beyond any question, that the plaintiffs here, at the end of the months of June and July and August,—perhaps at other times,—sent statements to the defendants as to the amounts that they claimed that they had sawed, on an estimate, according to contract. And it is claimed on the part of the plaintiffs that the defendants settled for these various amounts; that at that time they had knowledge, or ought to have had knowledge, if they had been diligent, as to just how this lumber was manufactured,'—-all about it. In that respect, I will say, gentlemen, that the defendants had a right to waive any defects with reference to the manufacture of this lumber, if defects actually existed; and if you should find that at the end of these different months they,—having full knowledge of the manner in which the lumber was manufactured,—that they made full and complete payments, as to the amounts claimed the different months, with a view of waiving and accepting the fulfillment of the contract on the part of the plaintiffs as they had fulfilled it up to that time, having a knowledge of the manner of the manufacture, it would be a waiver, and they would be estopped from claiming that the contract was not fulfilled on the part of the plaintiffs after that, as far as they had settled. That would be true with reference to the settlement, or claimed settlement, that was made in June, in July, in August, or at any other time. If the defendants here made payments of the exact amounts claimed on the part of the plaintiffs at that time, having full knowledge as to how the lumber was manufactured, with a view of waiving any defects,—any defect with reference to the manufacture,—they would not be entitled to complain after they made that waiver. It will be for you, gentlemen, to determine, taking into consideration all the circumstances surrounding the case, as to whether they in fact did, or whether they intended, when they made those different payments, to make a waiver.”

We think the charge left it to the jury to determine whether what was done were simply payments, or whether they amounted to settlements, and that the assignment of error was not well taken.

The other assignments of error necessary to be considered relate to that portion of the charge of the court which referred to the amount the jury might find to be due the plaintiffs. The trial judge charged the jury:

“Under the testimony in this case, the plaintiffs are entitled to recover the full amount of the promissory note given by the defendants to Thomas R. Lyon, with interest on the same. That amount, with interest, as computed by the plaintiffs, is $10,010.29. The claim made by the defendants for damage by reason of defective or improper sawing can be shown in this case, under the pleadings, only in connection with the plaintiffs’ claim for the balance due on the saw bill. It has no connection with the claim on the note.”

This portion of the charge, standing alone, would undoubtedly be error. It was modified, as we shall see later, but it is insisted by counsel for defendants that what was subsequently said to the jury could not cure the error. They call the attention of the court to the fact that the jury returned a verdict for just the amount due upon the note if no question of recoupment was in the case, and argue that the jury must have understood, or at least may have understood, that they must return a verdict for the amount unpaid on the note, even though they may have believed that defendants were entitled to a large amount by way of recoupment. Counsel say: -

“Where the jury apparently accept and act upon an erroneous instruction given by the trial judge, it is none the less a damaging error because accompanied by an opposing instruction. Sterling v. Callahan, 94 Mich. 536; Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152.”

In considering whether the charge misled the jury or not, we must take into account the facts appearing in the record. It should be borne in mind that the note was given originally for $90,000; that -it had all been paid without controversy, except the last payment and interest; that it was given for the purchase price of timber; that there is no pretense that the timber is not as represented; that, so far as the purchase and sale of the timber were concerned, there is no claim of damages by way of recoupment. The claim for damages by way of recoupment arises because of the defective manufacture of the lumber. We should, in considering this question, hear all that was said by the trial judge bearing upon the matter which is assigned to be error. In addition to what has been quoted, the judge said to the jury:

‘ ‘ The plaintiffs brought this suit to recover an amount claimed to be due them from the defendants on a promissory note executed by the defendants, and given in part payment for the timber on a certain half section of land in the county of Mason, and for a sum claimed to be due to the plaintiffs from the defendants on account, and for services rendered by the 'plaintiffs for the defendants in manufacturing their logs into lumber, which services were rendered under a certain contract which has been put in evidence. By the express terms of the contract between the parties, under which the sawing was done, the plaintiffs,were to do the work of sawing in a good and workmanlike manner. The defendants claim that the plaintiffs did not perform their part of the contract in that respect, but that said work was badly and improperly performed. * * * The court instructs you that, under the law, the defendants are entitled, in this action, to recoup against the claim of the plaintiffs the damages which they have sustained, unless they have waived that right, or settled with the plaintiffs for any damage which tliey may have sustained. * * * In this case, gentlemen of the jury, the plaintiffs brought suit against the defendants for the purpose of recovering the amount which they claim to be due on the promissory note, as a balance, and also an amount which they claim to be due on an account which they had between themselves and the defendants in this suit. It is conceded in this case, gentlemen, that the amount due on the note which was given for the timber is at this time $10,010.29. It is also admitted that at the time this suit was brought the defendants were indebted to the plaintiffs, on an account between them, in the sum of $1,079.48. It is admitted, gentlemen, that at the time this suit was brought the defendants were indebted to the plaintiffs on these two claims, and that at the time the computation was made—and that will be the amount as now claimed—there was due from the defendants to the plaintiffs the sum of $11,089.77, and for that amount the plaintiffs in this suit are entitled to recover. The defendants herein claim—and about that there isn’t any dispute—that during the winter of 1892-93, and perhaps before that time, Mr. Thomas R. Lyon was the owner of a half section of land in the county of Mason; that these defendants had been investigating with a view of making the purchase, and that in the early spring of 1893 they did make the purchase of the timber on these lands for thd sum $100,000; that, as a part of that transaction, they were to take from the hands of Lyon & Co. a contract which he had with the Butters & Peters Salt & Lumber Company, who were the owners or operators of a railroad in the vicinity where these lands were, by the terms of which contract the Butters & Peters Company were to log and transport and deliver into the booms of Thomas R. Lyon, Agent, the timber on these lands, and also the timber on other lands, and, so far as that contract applied to this particular half section, it was assigned to these defendants, and the obligations assumed by them. Now, it appears from the evidence in this case that at that time they paid $10,000 down on the purchase price of this timber, and gave their note of $90,000. As I say, it is conceded that the payments have been made in accordance with the contract, from time to time, until the amount which is now due for the balance of that note is $10,010.29. It is also unquestioned here that the arrangement was that the defendants here were to take the contract with the Butters & Peters Company, the same as Mr. Lyon had it; and it is conceded here that there is nothing, in fact, as far as it applies to that particular contract, to be settled in this case. And there is no question in this case to be settled by you, gentlemen, no controverted questions with reference to the purchase of the timber,—because it is conceded on both sides that the amount of the balance is as I have stated. * * *
“ After the purchase of this land, or at the same time, an arrangement was entered, into by which the plaintiffs in this case, who were a copartnership doing business under the firm name of Thomas R. Lyon, Agent, at Ludington, were to manufacture this timber. * * * It is claimed here on the part of the defendants that they did not perform their part of the contract as it should have been performed. * * * Now, gentlemen, if this is true, the defendants here are entitled to recover from the plaintiffs in this case the amount of damages which they have sustained by reason of the plaintiffs’ not having fulfilled their contract as they agreed to fulfill it, unless the defendants have in Some manner waived their right to recover such damages; * * * They waive any claim whatever, gentlemen, with reference to the amount for lost logs. Then they claim that all the damages which they have sustained by reason of this improper manufacture and the nonfulfillment of the contract on the part of the plaintiffs in this case is $35,901.25. Now, gentlemen, if you should find that the claim has been established by a fair preponderance of the proof, and that the different claims made here on the part of the defendants are correct, absolutely, it would be your duty then to take from the amount of $35,901.25 the amount that is conceded to be owing to the plaintiffs in this case; and the balance between those amounts would be the amount of your verdict in favor of the defendants, if you find that their claims have been fairly established by a preponderance of proof, and have not in any manner been waived. And in that case that would be the amount of your verdict.
“ (Do you claim interest on this amount?
“(Mr. Hoyt: No.) * * *
“If you find that the plaintiffs are entitled to recover the amount of their account and the note, and that the defendants are not entitled to anything by reason of damages sustained, why, the amount of your verdict will be the amount of $11,089.77. If you find, taking everything into consideration, that the defendants have sustained damages, you will determine then what those damages are. If they are more than $11,089.77, you will take the amount of $11,089.77 from the amount of damages which you claim the defendants have sustained, and the difference between the two will be the amount of your verdict rendered in this case in favor of the defendants. If you find that the defendants have sustained damages, —that those damages are not as much as $11,089.77,— then you take the amount of damages which you find that the defendants have actually sustained, and take that amount from the amount of $11,089.77, and the difference between the two would be the amount of your verdict in favor of the plaintiffs. Now, gentlemen, you may take the case, and render such a verdict as shall satisfy you, from all the evidence in the case, controlled by the instruction given by the court.”

It is a well-settled rule that, in construing the charge given by the judge, it is all to be considered. An assignment of error based upon a detached sentence which is not strictly accurate will not be sustained, if, when construed in connection with the context, the jury could not have been misled, and the charge as a whole is correct. Daniels v. Clegg, 28 Mich. 32; Welch v. Ware, 32 Mich. 77; Burdick v. Michael, 32 Mich. 246; Turner v. People, 33 Mich. 363; Greenlee v. Lowing, 35 Mich. 63; Eggleston v. Boardman, 37 Mich. 14; People v. Finley, 38 Mich. 482; Lake Superior Iron Co. v. Erickson, 39 Mich. 492; Frankel v. Coots, 41 Mich. 75; Russell v. Phelps, 42 Mich. 377; Driscoll v. People, 47 Mich. 413; Hart v. Newton, 48 Mich. 401; Kuney v. Dutcher, 56 Mich. 313. We think the only inference the jury could draw from the charge, taken as a whole, was that the claim of damages by way of recoupment did not grow out of the contract for which the note was given; that it was conceded that there was due and unpaid upon the note, for which plaintiffs were entitled to recover, the sum of $10,010.29; that the claim for damages by way of recoupment grew out of the contract for the manufacture of the lumber; that the jury might find such an amount of damages in favor of the defendants as the facts warranted, not exceeding $35,901.25. The judge correctly stated the defendants’ claim. Taking the charge together, we do not think it ambiguous. It is not difficult to see that in arriving at the verdict the jury probably found that there were defects in the manufacture of the lumber, but that they had been waived by payments of the monthly estimates; and the jury allowed, by way of damages, the unpaid balance on the saw bill.

We do not think it necessary to discuss the other assignments of error, as we do not think they have merit. The trial was a long one, and we think the issues were fully and fairly submitted to the jury.

The judgment is affirmed, with costs.

Grant, Montgomery, and Hooker, JJ., concurred. Long, C. J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    HUNT v. HUNT.
    1. Partition—Failure to Appeal.
    One who fails to appeal from a decree in partition proceedings determining the title of the parties to be-that of cotenants cannot have the question of title reviewed upon appeal from a subsequent decree, entered upon report of the commissioners, fixing the rights of the parties to the rents and profits.
    2. Same—Accounting—Rents and Propits.
    An accounting of rents and profits during the pendency of partition proceedings up to the date of the decree is proper, where the testimony furnishes a sufficient basis therefor.

      Appeal from St. Joseph; Yaple, J.
    Submitted April 7, 1896.
    Decided May 26, 1896.
    Bill by Truman Hunt against Seth T. Hunt and others for a partition. From a decree for complainant, defendants appeal.
    Modified and affirmed.
    O. F. Bean and Boudeman & Adams, for complainant.

      H. P. Stewart and Howard & Boos, for defendants.
   Montgomery, J.

This is a proceeding for partition. Complainant and Seth T. Hunt are father and son. On the face of the record they appear as tenants in common of the property in question, a farm of about 250 ácres in St. Joseph county. The property is subject to a mortgage, the principal of which is $4,000. The complainant’s title is derived through his son, W. Bansom Hunt. Defendants seek to raise four points on the appeal:

(1) That complainant deeded the land to defendant Seth T. Hunt prior to the institution of this proceeding.

(2) That in the decree of the court below the court charged against each one-half of the mortgage, whereas it is contended that, by the terms of the original purchase, ~W. Bansom Hunt, to whose right complainant succeeded with notice, was bound to pay $3,000 of the $4,000, he having contributed to the purchase $1,000 less than the defendant Seth T. Hunt.

(3) That the court allowed an excessive [sum for rents and profits.

(4) That sufficient allowance was not made for improvements and taxes.

The first question is not open to consideration on this appeal. A decree was made and entered determining the title of the parties to be that of cotenants, and directing that partition be granted, and no appeal was taken therefrom. Subsequently, on the coming in of a report of commissioners, a decree was entered fixing the rights of the parties to rents and profits, and determining ■the proportions in which, the share of each was chargeable. From this decree an appeal was taken in due time. It has been decided that an appeal lies from such a decree as the first entered. Damouth v. Klock, 28 Mich. 162. And when the defendant fails to appeal from such first ■decree he cannot, on a later appeal, have a review of the whole case. Shepherd v. Rice, 38 Mich. 556; Hill v. Railroad Co,, 140 U. S. 52.

The farm was originally purchased by Seth and W. Ransom Hunt for $12,000, $8,000 of which was paid ■down and $4,000 was allowed to remain on mortgage, the property being at the time subject to a mortgage held by •one Cyrus Roberts. Of the $8,000, W. Ransom Hunt paid $3,000, and the $5,000 was paid from the avails of a mill property standing in the name of Truman Hunt, and a 20-acre tract of land belonging to Seth Hunt, and valued ..at $500. It appears that the mill property, while standing in the name of Truman Hunt, had really been treated as Seth’s. The defendants contend that W. Ransom Hunt’s .share of the farm should have been charged with $1,000 more of the purchase price; but, on the other hand, the ■complainant’s testimony and that of W. Ransom Hunt is to the effect that, at the time of the purchase, the defendant Seth Hunt was indebted to W. Ransom Hunt in the sum of $1,000, and that, when he applied the $5,000 received on the sale of the mill property, it was agreed that $1,000 of this sum was to pay this' indebtedness to W. Ransom Hunt, and that, therefore, they stood as equal •cotenants, just as the papers indicated. While the testimony on this point is in direct conflict, we think the surrounding circumstances and dealings of the parties, after the conveyance to complainant, tend to corroborate the complainant’s claim. The circuit judge saw the witnesses, •and upon a question of this character his judgment is ■entitled to weight. We do not feel justified in reversing his finding upon this question.

The decree does not clearly show the basis upon ■which the circuit judge arrived at his conclusion as to the rents and profits chargeable against the share assigned to Seth Hunt. The decree finds that rents and profits, over and above the amount paid out for taxes, improvements, insurance, and interest, amount to $1,039.83, and charges one-half of this sum against Seth Hunt’s share assigned to him. The accounting included rents and profits from the date of the purchase by complainant, in 1891, to the date of the decree, in November, 1894, a period of three years. It is claimed that the rents and profits during the pendency of the proceeding should not have been charged; but we think it is proper to bring the accounting up to the date of the decree, as the testimony furnishes a sufficient basis for it, and no further reference was necessary. Defendant also contends that he should be credited with improvements made while the title was in himself and "W. Ransom Hunt. The answer did not set up this claim, and it appears that there has never been an accounting between W. Ransom Hunt and the defendant as to rents and profits during this period, and the case shows that, if defendant was charged with rents and profits, they would at least equal the improvements which he placed on the property during the same time. He is not, therefore, in position to complain that this accounting was not entered upon by the circuit judge. The testimony as to the rental value is widely at variance, the estimates of witnesses as to the annual rental value varying from $300 to $800. If the rental value be found to have been $525 a year, which we think is a moderate charge, this would amount for the* three years to $1,575, and if we deduct the interest paid for one year ($240), taxes, insurance, and improvements made during the ownership of complainant and defendant, it leaves the net income of the property fully as large as the circuit judge found it. It should be stated that, in the computation which we have made, we have not credited the defendant with $60 interest money paid on the mortgage in 1894. The decree may provide that the complainant pay the interest on $2,000 of the mortgage for that year. This will insure the defendant Seth Hunt the benefit of the payment which he has made. In all other respects the decree will be affirmed, with costs to complainant.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


author: Long, C. J.

text:
    REYNOLDS v. NEWAYGO CIRCUIT JUDGE.
    1. Jurisdiction—Effect of Remittitur.
    Jurisdiction of a case brought by writ of error to the Supreme Court, and there affirmed, is restored to the trial court upon the filing of a remittitur from the appellate court.
    2. Same—New Trial.
    Where a case brought by writ of error to the -Supreme Court, and there affirmed, is remitted without direction as to the final disposition thereof, the trial court has power, in the absence of laches, to grant a new trial, if, in its opinion, justice requires it.

      Mandamus by Job T. Reynolds and others to compel John H. Palmer, circuit judge of Newaygo county, to vacate an order granting leave to move for a new trial.
    Submitted January 28, 1896.
    Writ denied May 26,1896.

      George Luton and A. F. Tibbitts, for'relators.

      William D. Fuller, for respondent.
   Long, C. J.

On December 9, 1892, the relators brought suit in the Newaygo circuit court against Martin L. Sweet. The causé was tried in the circuit on March 21, 1894, and resulted in a judgment in favor of plaintiffs for $3,618.45. A stay of proceedings was granted for 60 days, to enable the defendant to move for a new trial or to settle a bill of exceptions. Extensions of this order were made, when, on December 27, 1894, a bill of exceptions was settled," and the cause certified to this court. On February 26, 1895, the judgment was affirmed in this court (104 Mich. 252); and on March 2d a remittitur was sent to the clerk of the circuit court, and there filed March 4, 1895. Execution was issued from the circuit coui't on March 25th, but not placed in the hands of an officer; and on March 29th the defendant caused the amount, together with the costs, to be paid. On December 20th, following, defe ndant, by his counsel, entered a motion in the circuit court, and gave due notice thereof, for leave to make a motion for a new trial. This motion came on to be heard, and was granted. Relators now ask a mandamus to compel the court below to vacate such order. The affidavits upon which the motion was based, and the return of the circuit judge, are now before us. It is contended by relators that the court below had no power to make the order, for the reason that the case had been removed to this court, and here affirmed.

It appears that the cause, after affirmance here, was remanded to the court below, and a remittitur duly filed in that court. That court, by reason thereof, was again possessed of the case. Wright v. King, 107 Mich. 660, and cases there cited. There are cases holding that the trial court has no further jurisdiction of the case than to carry out the mandate of the appellate court. The reason assigned in such cases is that allowing the inferior courts to disregard the adjudication of the supreme court, or to refuse or omit to carry its mandates into execution, would be repugnant to the principles of the Constitution. But in such cases it appears that some mandate had been sent to the inferior court, which it was claimed had been disregarded by the inferior court. Fortenberry v. Frazier, 5 Ark. 200 (39 Am. Dec. 373). In Skillern’s Ex’rs v. May’s Ex’rs, 6 Cranch, 267, it was said: “It appears that the merits of the case had been finally decided in this court, and that its mandate required only the execution of the decree. The circuit court was bound to carry that decree into execution, although the jurisdiction of that court was not alleged in the pleadings.” This case has since been followed in the federal courts. Ex parte Dubuqué & P. R. Co., 1 Wall. 69; Litchfield v. Railroad, Co., 7 Wall. 270; Billings v. Smelting Co., 53 Fed. 561. Those were cases, however, in which the supreme court had passed upon the merits, and had entered decrees directing what disposition should be made in the inferior courts of the case upon the merits. The present case was an action at law, and came into this court by writ of error. The merits of the case were not in controversy here, but, finding no error of law, this court affirmed the judgment below. The cause, under our practice, was then remitted to the court below. No directions were given to that court as to the final disposition of the case. In that respect the case differs from those cited.

The granting of a new trial upon the merits rests in the sound judgment of the trial court. We are not able to say that, upon the merits, a„ new trial should not be granted; and, as no direction was given by this court to the court below as to the disposition of the case, we think the trial court had power to grant a new trial, in the absence of laches, if, in its opinion, justice required it. No new trial has been granted, but leave has been granted to make such application. The order made by that court we decline to interfere with.

The,writ must therefore be denied.

The other' Justices concurred.


author: Moore, J.

text:
    SHAFER v. THOMPSON.
    Equity Pleading—Mortgage Foreclosure—Defenses.
    The defense that one who is made a party defendant in a bill to foreclose a mortgage, as claiming to have an interest in the mortgaged premises as “subsequent purchaser, incumbrancer, or otherwise,” claims title in fee by virtue of a tax deed, may be set up by plea as well as by filing a disclaimer.
    Appeal from Montcalm; Davis, J.
    Submitted April 10, 1896.
    Decided May 26, 1896.
    Bill by William F. Shafer against Thomas W. Thompson, Libby Thompson, and William F. Soule to foreclose a mortgage. From a decree dismissing the bill as to defendant Soule, complainant appeals.
    Affirmed.

      John T. McCurdy, tor complainant.

      McGarry & Nichols and M. A. Nichols, for defendant Soule.
   Moore, J.

Complainant filed a bill to foreclose a mortgage given by defendants Thompson and Thompson, and alleged in his bill that defendant Soule has, or claims to have, rights and interests in the premises described in the mortgage as subsequent purchaser or incumbrancer or otherwise. Soule entered his appearance, and filed a plea, in which he claimed he was in possession of the premises described in the mortgage as owner in fee simple by virtue of a tax deed, describing the deed. No replication was filed. The plea was heard. The court made an order dismissing the bill as to defendant Soule, from which complainant appeals. Counsel for both parties are agreed that the rights of defendant Soule under his tax title cannot be litigated in this foreclosure suit; the only difference between them being that the solicitors for defendant Soule insist that it was proper to file a plea just as they did in ' this case, while the solicitor for complainant insists that the solicitors for Soule should have filed a disclaimer,—citing Comstock v. Comstock, 24 Mich. 39.

We have no doubt the interest of defendant Soule would have been protected by filing a disclaimer. May he not accomplish the same object by filing a plea? The complainant did not file a replication, so that the truth of the plea is not at issue (Hurlbut v. Britain, Walk. Ch. 454), but its sufficiency. Puterbaugh’s Michigan Chancery Practice, 100, says: “ The true office of a plea is to save to the parties the expense of an examination of the witnesses at large, and the defense proper for such a plea is such as reduces the cause, or some part of it, to a single point, and from thence creates a bar or other obstruction to the suit;” and at page 103 it is said that “pleas in bar are usually divided into three heads.” Under the third head is mentioned, “pleas of matters in pais, to which belong the plea of a stated account, * * * and of title in defendant, obtained either by adverse possession for a length of time or by deed or will.” In this case it was a plea of title in defendant by virtue of a tax deed.

We think the action of the circuit judge in dismissing the bill as to defendant Soule was right.

The decree is affirmed, with costs.

Grant, Montgomery, and Hooker, JJ., concurred. Long, C. J., did not sit.


author: Montgomery, J. Grant, J. Hooker, J.

text:
    GAVETT v. CITY OF JACKSON.
    Defective Sidewalks—Formation op Ioe—Liability op Municipality.
    The duty of a municipality' to keep sidewalks in a condition reasonably safe for public travel cannot be extended so as to-render it liable for injuries received by reason of the formation upon a walk of a thin strip of ice, caused by the discharge, at a point two feet away, of water conducted through a pipe from a sag in an eaves trough. Montgomery and Moore, JJ., dissenting.
    Error to Jackson; Peck, J.
    Submitted January 8, 1896.
    Decided May 26, 1896.
    Case by Davina Gavett against the city of Jackson for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Pringle & Hewett, for appellant.

      William H. Ware, City Attorney, for appellee.

       The authorities as to the liability of a municipal corporation for ice on streets or sidewalks are found in a note to Hausmann v. Madison, (Wis.) 21 L. R. A. 263.

   Montgomery, J.

(dissenting). This action is brought to recover for injuries received by plaintiff while traveling-on a sidewalk in Mill street, in the city of Jackson, the cause of the injury being a formation of ice, consisting of a ridge from 1-J- to 2 inches thick in the center, and sloping from the center either way, and in all covering about 3 feet in width. The evidence disclosed that this ice was formed by the freezing of a discharge of water carried by a conductor pipe of an adjoining building, and that this pipe had been in use for seven or eight years before the accident, and that the common result was for ice to form, at this point whenever freezing weather followed mild weather; that this particular ridge of ice had been there in its then condition for two or three days, and, as one witness stated it, perhaps a week, before plaintiff received her injuries. The circuit judge, being of the opinion that the case was ruled by McKellar v. City of Detroit, 57 Mich. 158, withdrew all questions from the jury, and directed a verdict for defendant.

The occasion of the fall in McKellar v. City of Detroit was a ridge of ice caused by the tramping of snow, and melting and freezing, until the surface became uneven; obviously, the result of climatic influence, combined with the ordinary and proper use of the street. Rolf v. City of Greenville, 102 Mich. 544, depended upon a state of facts precisely analogous to those in McKellar’s Case. Hutchinson v. City of Ypsilanti, 103 Mich. 12, was held to be within the doctrine of McKellar’s Case, on the ground that the use of the street to accumulate snow thrown from the walk or street-railway track was reasonable, and the city should not be liable because ice formed on the uneven parts of the snow thus found. In Kannenberg v. City of Alpena, 96 Mich. 53, it appears that the city had made provision for carrying off the water by gutters, and by supplying catch basins; that, on the occasion in question, the catch basin had become stopped up, so that the water was not carried off. As was stated, no fault was found with the catch basin’s construction, and it was held that there was in that case no liability. It was said in that case:

“Some cases have been cited in support of plaintiff’s claim, but they relate to instances where, by the neglect of the hydrants or water spouts, water was permitted to drop upon the walk, where it froze. These cases are clearly distinguishable from the case before us.”

It will be seen that no case has been before this court involving the precise question presented. We are well satisfied with the doctrine advanced by the court in the McKellar Case, and those which have followed it; and the doctrine that a failure to provide against a formation of ice in the usual way, as a result of freezing, cannot, in this climate, be deemed a want of due care or a defect in the street, is too fully settled to be open to question. But it do.es not follow from this that a walk cannot be constructed so as to make the accumulation of ice unnecessary at a particular point, and unnecessary and unnatural, in a sense that it may be treated as a defect in the way. Much less can it be said that a city may permit water to be carried onto the walk by artificial means, in such manner that the inevitable result is the formation of ridges of ice, and, without using any precaution to prevent this dangerous impediment to travel, shield itself under the claim that the climate is the real cause of the difficulty. Todd v. City of Troy, 61 N. Y. 506; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459; Hall v. City of Lowell, 10 Cush. 260; Elliott, Roads & S. 459; Scoville v. Salt Lake City, 11 Utah, 60. And see the true distinction noted in Stanton v. City of Springfield, 12 Allen, 566, and again in Hughes v. City of Lawrence, 160 Mass. 474; Corbett v. City of Troy, 53 Hun, 228. See, also, Canfield v. Railway Co., 78 Mich. 356.

We think the plaintiff made a case entitling her to have the jury determine whether the walk was reasonably safe for public travel, and whether the defect had existed for such length of time that the city authorities, in the exercise of reasonable supervision, should have known of and remedied the defect, by removing the accumulation of ice; and, in the determining of this question, the jury had the right to take into consideration the fact, if proven, that the water spout in question had for years been the occasion of ice formations at this point, as this would have a direct bearing upon the degree of diligence required by the city in removing the ice accumulation in question.

The judgment should be reversed, and a |new trial ordered.

Moore, J., concurred with Montgomery, J.

Grant, J.

I think that the instruction of the circuit judge was correct. The sidewalk was about 10 feet wide, and in good repair. The building, which stood on or near the line of the street, was provided with an eaves trough, which had sagged near the center, so that the accumulated water would flow over, to the annoyance of the tenants. To remedy this, a pipe, two inches in diameter, had been put up, to take the water from the sag. This came down to the grQund, and discharged its water about 2 feet from the sidewalk, and part flowed over the walk, resulting in the thin strip of ice, 3 feet wide, and 1& to 2 inches thick. Todd v. City of Troy, 61 N. Y. 506, Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, and Hall v. City of Lowell, 10 Cush. 260, cited by my Brother Montgomery, evidently make no distinction between accumulations of ice and snow caused by natural and by artificial means. In Pomfrey v. Village of Saratoga Springs the water had fallen from the roof of a barn situated near the street, and the ice and snow had accumulated on the walk to the depth of 3 feet.

What are the artificial means, as distinguished from natural ones, for which municipalities must be held liable ? People have the right to erect buildings from which the water must flow to the ground, and, if it comes faster than the ground can absorb it, it must flow onto the sidewalks. Is the city to be held responsible, under the prior decisions of this court, for this rightful and natural flow of water, when the weather has intervened and frozen it? People have the right to conduct the water from the roofs of their buildings to the ground by means of gutters, eaves troughs, and conductors. This water must seek the street gutters, to be carried away. This is done in all villages and cities where direct communication is not made from the conductor to the sewer. Why should the city be held liable for accumulations caused by the action of the weather in these cases, and not liable for accumulations, just as dangerous, resulting from other causes, such as snow from sidewalks and street-car tracks, which was the case in Hutchinson v. City of Ypsilanti, 108 Mich. 12, or ice formed in consequence of the stoppage of a catch basin, causing the water to flow over the sidewalk, which was the case in Kannenberg v. City of Alpena, 96 Mich. 53 ? Many, and probably most, houses, are built higher than the sidewalks, with sloping yards in front. Under the rule sought to be established in this case, municipalities would be liable for the natural flow of the water from such buildings over the yards to the sidewalks. Such is the doctrine in Pomfrey v. Village of Saratoga Springs. Such holding is not consistent with the former decisions of this court. The nonliability for the natural flowing and spreading of water, as it comes from conductors, is recognized in Hughes v. City of Lawrence, 160 Mass. 481. In that case a gutter had been constructed across the sidewalk. It was claimed that water had collected in this gutter, and frozen, to the height of a foot or more, and that upon this the plaintiff fell. It was claimed by the defendant that the water had spurted from holes in the conductor over the sidewalk, forming a thin coating of ice, upon which the plaintiff fell. It was held competent for the jury to find that the former constituted an obstruction, but that the latter did not.

I think that the logical conclusion from our former decisions is that the defendant is not liable.

Judgment affirmed.

Long, C. J., concurred with Grant, J.

Hooker, J.

I concur with my Brothers Long and Grant in the affirmance of the judgment in this cause. Unless we are to say that it is the duty of the owners of all lots that are higher than the adjoining highways to prevent the flow of water therefrom, or promptly remove any ice that may form by reason of the escape of water from their buildings upon the adjoining highways, and, further, that the city must at its peril see that such duties are performed, we must hold that the plaintiff should not be permitted to recover in this cause. If a liability exists, it is because of a defect in the highway; and, if ice frozen upon a sidewalk is a defect when it is caused by water flowing from a roof, why should it not be when it flows from a vacant lot, or when it falls upon the walk, or is caused by the melting of snow upon or adjoining such walk? If the liability of a city for damages resulting from a failure to keep its highways in a reasonably safe condition for travel extends to cases where such condition is not ascribable to defects in the construction and maintenance of .the way, or to the action of the officers of the city or their negligence in the performance of a duty, it may be contended that cities must cause the streets to be patroled, in search of bricks or coals that fall from wagons, for the treacherous banana peel, .upon which the unwary are sure to slip, and for tacks or bits of glass or other rubbish, which puncture the tires of bicycles. I think such are not defects in the highway.

The presence of the water upon the. walk was due to no act of the city or its officers. It is manifest that it must escape from the premises across the walk if it is to reach the gutter. Were there no building there, and the lot of uniform grade, the whole surface of the walk might be expected to be covered with ice; while, if undulating so as to form a valley, the water might flow over the walk within limited bounds, no wider than in this case. Shall we say that because the water falls upon a roof instead of the ground, or because it finds its way through a conductor instead of a valley to a given point, there is a liability upon the city? Is it desirable to omit the eaves trough, and shed the water uniformly upon the walk, making it wet and icy throughout, rather than at one point, where the presence of the conductor may indicate the possible presence of ice? Unless we are prepared to say that the city, must see that water does not flow upon the sidewalk at all by so constructing its ways, walks, sewers, and other devices as to prevent it, or that it must remove all ice from' walks seasonably, I do not see how we can hold the city liable in this case. There is not even the gutter across the walk (which walk the city had the responsibility of keeping in repair) that —in the case of Hughes v. City of Lawrence, 160 Mass. 481—the court said “it was competent for the jury to find * * * constituted a defect in the way, and that its construction was such as to cause a special deposit of ice at that particular place;” thus distinguishing between the gutter, which the city was responsible for, and the conductor, admittedly defective,' with which, as in this case, it had nothing to do.

The trend of Michigan decisions has been against the theory that every obstruction in a highway is a dófect for which the city is to be mulcted in damages by persons meeting with accidents by reason thereof. In Agnew v. City of Corunna, 55 Mich. 428, a bowlder four feet high,, taken from the roadbed, and placed by the side of the road, was held not to be a defect in the way, which was said to be in good repair. McKellar v. City of Detroit, 57 Mich. 158, upon which case the learned circuit judge relied, emphasizes this rule in an ice case. The case differs-from this chiefly as to the manner in which the water came upon the walk, being in that case caused by the melting of snow which fell there. The case of Joslyn v. City of Detroit, 74 Mich. 459, should not'be overlooked. This was where a lot owner placed a pile of sand in the-way, by consent of the city authorities, which was the cause of a buggy being overturned, to the injury of the-occupant. A verdict directed for the defendant was reversed, Mr. Justice Campbell dissenting. In Hutchinson v. City of Ypsilanti, 103 Mich. 12, Mr. Justice Grant distinguished Joslyn v. City of Detroit and. Hayes v. City of West Bay City, 91 Mich. 418, showing that the city was an active agent in causing the obstruction.

I think the judgment of the circuit court should be affirmed.


author: Hooker, J.

text:
    DEFREESE v. LAKE.
    1. "Wills—Construction of Devise—Estate for Life.
    Under a will devising lands to the testator’s wife, after her decease to his son, and, after the son’s decease, to his heirs, the son takes only an estate for life, with remainder to his heirs.
    2. Same—Evidence.
    In an action involving the construction of a will, the scrivener who drew the same cannot, in the absence of ambiguity upon the face of the instrument, testify to conversations had with the testator, at the time the will was drawn and executed, as to the interest intended to be devised.
    3. Tenant for Life—Tax Title—Renunciation of Devise.
    The rule that a life tenant in possession, to whom taxes are assessed, cannot cut off the remainder-man and acquire the title in fee by allowing the premises to be sold for taxes, does not extend to a devisee of a life estate who has renounced the devise.
    4. Devise—Presumption as to Acceptance—How Overcome.
    An acceptance of a devise of a life estate, in remainder will be presumed, but such presumption may be overcome by evidence of acts inconsistent with acceptance.
    5. Renunciation of Devise—Evidence—Question for Jury.
    Evidence that a devisee of a life estate in remainder claimed title in fee to the premises devised by virtue of tax deeds for taxes assessed against the land during the occupancy of the first devisee, that he had such deeds recorded, that he took possession of the premises after the death of the first tenant, and that he occupied the same for two years, and then conveyed by warranty deed, is sufficient to go to the jury upon the question of his renunciation of the devise.
    6. Same.
    Testimony of a third party, from whom the devisee acquired his tax titles, to the effect that he saw the land advertised in the paper, and bid it in, is admissible, as tending to show that the sale was not the result of collusion between the devisees of the life estates.
    7. Tax Title—Purchase by Lire Tenant-Rights of Remainder-men.
    The devisee of a life estate in remainder cannot, if he accepts such devise, obtain title in fee to the land by purchase at a tax sale for taxes assessed during the incumbency of his predecessor in title, and such purchase, at most, only entitles him to reimbursement from the latter or to contribu-, tion from the remainder-men, to whose benefit the purchase inures.
    8. Conveyances—Expectant Estates.
    A remainder-man may, before the death of the life tenant, convey his interest, under 3 How. Stat. § 5551, declaring expectant estates to be descendible, devisable, and alienable in the same manner as estates in possession.
    9. Wills—Suspension of Alienation.
    A devise to testator’s wife for life, after her death to a son for life, and after his death to his heirs, suspends the power of alienation for only two lives in being at the creation of the estate, and is, therefore, not in contravention of 3 How. Stat. § 5531.
    10. Appeal—Stipulation.
    An objection that the probate court had no jurisdiction to admit a will to probate:'cannot be considered upon appeal, where the parties have stipulated that the will was “duly probated.”
    Error to Shiawassee; Wisner, J., presiding.
    Submitted January 8, 1896.
    Decided May 26, 1896.
    Ejectment by Aaron Defreese against John A. Lake and wife. From a judgment for plaintiff on verdict directed by the court, defendants bring error. Reversed.

      Watson & Chapman, for appellants.

      ■John T. McCurdy, for appellee.
   Hooker, J.

One Peter Casler, being owner in fee -of the premises in controversy, made a will which contained the following provisions:

“I give and bequeath to my wife, Betsey Casler, all the west half of the southeast quarter, and the south half of the east half of the southeast quarter, except so much of said land on the south as will make forty acres, on section thirty-one, according to the original survey of the United States, being in the township of Shiawassee, •county of Shiawassee, and State of Michigan, it being the same farm on which I now reside. After her decease the said real estate above described I give and bequeath to Henry Casler, my son, and after his decease said real estate is to belong to his heirs.”

It appears that, during the time that Betsey Casler occupied the land, it was assessed for taxes to her for the years 1874 and 1875. It was sold for these taxes, and tax deeds were executed to Henry Casler on December 9, 1876, and December 13, 1877. After the testator’s death, his widow, Betsey Casler, entered and occupied the premises until her death, which occurred in September, 1877. Afterwards Henry Casler entered and held possession until November 7, 1879, when he conveyed the premises to John A. Lake by warranty deed. Mary Lake is the wife of John Lake, and, at the time this action of ejectment was brought against them, resided with him upon the premises. Henry Casler died September 15, 1886, leaving issue. The plaintiff claims title to the land in question under quitclaim deeds obtained from the descendants of Henry Casler, executed and delivered before his death; also, a quitclaim deed purporting to have been given by other persons, styling themselves “heirs at law of Peter Casler, deceased,” dated after Henry’s death. Some of them were admitted to be heirs at law of Henry Casler. Thus we find the plaintiff claiming title, and a right to recover the premises, by virtue of a deed from Henry Casler’s heirs, while the defendants are in possession, claiming under a deed from Henry Casler himself. The plaintiff contends:

1. That Henry Casler took only a life estate, with remainder to his heirs.

2. That the purchase of the lands at tax sale inured to the benefit of the remainder-men, and title, as against them, cannot be claimed under such deeds.

On the other hand, the defendants say that Henry Casler took title in fee simple, under the will, and that, failing in that, his tax deeds gave him such title.

The will has been quoted. It conveyed a life estate to Betsey Casler, with remainder to her son Henry. So far there can be no dispute. Was this a remainder in fee simple? Obviously, this must depend upon the construction to be given to the words, ‘ ‘ I give and bequeath to Henry Casler, my son, and after his decease said real estate is to belong to his heirs.” Does this language evince an intention upon the part of the testator to limit Henry’s interest to an estate for life? If the intention had been to devise an estate in fee simple, the most apt and proper words would have been, “I give and devise to Henry Casler, my son, his heirs and assigns forever.” An equally effective and perhaps common method of expression would be, “I give and devise to Henry Casler, my son,” the law in such case supplying the necessary words to create the estate in fee simple. But this testator used neither expression, but added to the devise to Henry the provision that after his decease “said real estate should belong to his heirs,”—words which necessarily imply that Henry Casler was to have only a life estate, if they are not to be treated as superfluous.

We are not without precedents in this State which warrant the conclusion that this devised a life estate. Fraser v. Chene, 2 Mich. 81, construed a will in which the following language was used:

“ I give and bequeath to my beloved son Gabriel Chene, my eldest, the farm I now reside on, for and during his lifetime, with all the appurtenances thereon; and after he, my said son, the said Gabriel Chene, is deceased, then the right, title, and appurtenances of the aforesaid farm is to become the property of said Gabriel Chene’s male heirs.”

The court said.

“It would seem to any one reading the will in this case that the intention of the testator to give a life estate only to his son Gabriel was so very plain that it could not be doubted.”

In the case of Gaukler v. Moran, 66 Mich. 354, the testator devised premises to a daughter “during her natural lifetime, and after her death to her heirs and assigns.” This was held to give the daughter a life estate merely. See, also, Cousino v. Cousino, 86 Mich. 323; Jones v. Doming, 91 Mich. 481.

We are of the opinion that the words used indicated a plain intention to give to Henry Casler a life estate only. This being so, the statute (2 How. Stat. § 5544) applies, and the heirs of Henry Casler take as purchasers. This may seem at variance with the case of Fraser v. Chene, supra, but it is not, as the will in that case antedated the statute.

One Hartwell testified on behalf of the defendants that he drew the will, and that he had a conversation with the testator, at the time the will was drawn and executed, in regard to the provision hereinbefore mentioned, and that he understood the testator to wish Henry to have the land “in his own name, free;”that the witness “was in doubt, some, how to word the will, as it was new business to him;” and that “he asked the testator particularly what he wished,—how he wished the estate disposed of after his death,—whether Henry was to be allowed to use it all, or keep it in trust,” and he said:

“It is no matter. Henry will not have anything left, anyway. It is all for Henry.”
Q. Did you understand you were creating a fee simple?
“ A. Yes, sir.
Q. By the use of those words?
“A. Yes, sir.”

This testimony was afterwards stricken out, on motion of plaintiff’s counsel, upon which error is assigned. There was no ambiguity on the face of the instrument, and the testimony was not admissible. Fraser v. Chene, supra; Kinney v. Kinney, 34 Mich. 250; Waldron v. Waldron, 45 Mich. 354; Forbes v. Darling, 94 Mich. 625.

It being settled that Henry Casler’s title to the premises, acquired through the will, terminated at his death, we will next consider the question of the tax titles. It will be remembered that he procured a tax deed of the premises before the termination of Betsey Casler’s estate. These taxes were properly assessed to Betsey Casler, who owed the duty of payment, both to the State and to the remainder-men. Jenks v. Horton, 96 Mich. 13; Smith v. Blindbury, 66 Mich. 319. But Henry Casler was in a different situation. He certainly owed no duty of payment to the State, though his interest in the premises was liable to sale therefor. It is a general proposition that a life tenant to whom, taxes are assessed, and upon whom the law imposes the burden of such taxes, cannot •acquire the title in fee by allowing the premises to be sold for taxes, and bidding them in, thus cutting off the remainder-man. But in this case Henry Casler was not a life tenant in possession, and, so far as the record shows, he had not done anything tending to show whether or not he had accepted the devise prior to the time he obtained his tax deeds, which manifestly he was .under no obligation to do unless he chose. 2 Redf. Wills, 304, and cases cited; Doe v. Smyth, 6 Barn. & C. 116; 4 Kent, Comm. 534; Townson v. Tickell, 3 Barn. & Aid. 31; 2 Story, Eq. Jnr. §§ 1075-1079.

In 3 Washb. Real Prop. 6 (*402), the author says:

“An heir at law is the only person who, by the common law, becomes the owner of land without his own agency or assent. A title by deed or devise requires the assent of the grantee or devisee before it can take effect.”

Again, at page 579 (*700), the author says:

“It is hardly necessary to add that no one can make another the owner of an estate against his consent, by devising it to him; so that, if the devisee disclaim the devise, it becomes inoperative and goes to the heir.”

• It is said that a parol disclaimer will not prevent the devisee from subsequently claiming the devise, and that the reason of the necessity of a deed grows out of the presumptive vesting of the devised interest in the devisee before entry. See Perry v. Hale, 44 N. H. 365. It is, in our opinion, illogical to say that a deed is necessary because of the presumption that the title has vested, when the title does not vest by a devise unless there is an acceptance. It would seem that the deed would be necessary only where the title had actually vested, which appears to depend upon acceptance. If it be admitted that the law will presume an acceptance, it is not a conclusive presumption, and, when it is shown to have been renounced, it is shown that the title did not vest, and apparently there would be no occasion for divesting a title that had not vested. There are two classes of cases in which it may become necessary to determine what constitutes a renunciation or acceptance: (1) Cases where the devisee or his privies are denying renunciation; and (2) where they are asserting it. In the former (i. e., before the devisee can be deprived of the estate) there are cases that hold that renunciation is not to be lightly inferred, and that equivocal acts will not do, and it has been contended that a deed is necessary when the devise is of an absolute and unconditional fee. On the other hand, if the devisee or his privies are asserting renunciation, or, what is equivalent, denying acceptance, it has been said that “the presumption of assent is never conclusive; neither are acts that indicate a design or intention to accept.” Wheeler v. Lester, 1 Bradf. Sur. 293; Perry v. Hale, supra. But an entry and occupation under the will have been considered the most satisfactory evidence of acceptance, in cases where action has been brought against the devisee, where the devise was subject to the payment of debts. Pickering v. Pickering, 6 N. H. 120; Glen v. Fisher, 6 Johns. Ch. 33 (10 Am. Dec. 310); Kelsey v. Western, 2 N. Y. 500. In this 'case the devisee is dead, and his grantee sets up the claim that he entered and occupied the premises under another title; i. e., a tax title acquired after the devise, but before the end of the preceding estate. There is no other evidence bearing upon the question of acceptance or renunciation, except the fact that he claimed title in fee, contrary to the terms of the devise, and we are asked to determine whether this was sufficient evidence of renunciation to go to the jury.

In Doe v. Smyth, 6 Barn. & C. 112, the court said that a devisee cannot be compelled to accept the devised interest, but may by some mode renounce and disclaim it.

“* * * And it is not necessary in the present case to decide whether such renunciation and disclaimer may be by parol, because, in whatever form they are made, we think they must be a clear and unequivocal disclaimer of any estate in the land. In this case the disclaimer is not of any estate in the land, but only of benefit under the will, accompanied in every instance with an assertion of a right to the land by a higher and better title. This proceeded on a mistake of which the devisee (the lessor of the plaintiff), though slowly and reluctantly, was at last convinced. No case similar to this was cited, or has been found, and we therefore think the lessor of the plaintiff is not precluded from acting under her improved judgment, and taking the land as devisee under the will.”

Here the devisee was denying renunciation, and her contention was sustained. Whatever we may think of the holding that a disclaimer of a devise is not good unless it goes to the extent of disclaiming any interest in the land, although such claim may be based upon other and better title, it must be conceded that the case turned upon that, or that, at all events, it did not decide that a disclaimer must be by deed. This case was decided in 1826.

The case of Bryan v. Hyre, 1 Rob. (Va.) 102 (39 Am. Dec. 246), decided in 1842, affirmed a case where the trial judge had instructed the jury that a disclaimer of a devise must be in writing. This is based upon the rule laid down in Coke upon Littleton,—that, where a devisee enters, the freehold is in him before he enters,' and in that case the heir takes nothing. Co. Litt. Illa. The case of Townson v. Tickell was cited, but it does not decide the point, for there the disclaimer was in writing. The decision really rests upon Doe v. Smyth, 6 Barn. & C. 112, which, as has been shown, did not pass upon the question. Indeed, that case (i. e., Doe v. Smyth) seems to have overlooked the earlier case of Townson v. Tickell, 3 Barn. & Ald. 31, decided in 1819. The Virginia case mentions it to disapprove the opinion of Holroyd, J., where he says:

‘ ‘ I think that an estate cannot be forced on a man. A devise, however, being prima facie for the devisee’s benefit, he is supposed to assent to it, until he does some act to show his dissent. The law presumes that he will assent, until the contrary be proved. When the contrary, however, is proved, it shows that he never did assent to the devise, and consequently that the estate never was in him. I cannot think that it is necessary for a party to go through the form of disclaiming in a court of record, nor that he should be at the trouble or expense of executing a deed to show that he did not assent to the devise. Unless some strong authority were shown to that effect, I cannot think that the law requires either of these forms. I am confirmed in that opinion by the case of Bonifaut v. Greenfield, Cro. Eliz. 80.”

In that case the renunciation was by deed, and it was claimed that was insufficient, and that a disclaimer in a court of recbrd was necessary. All of the judges agreed that the disclaimer by deed was good, and the dictum contained in the opinion of Holroyd, J., was apparently approved by the other justices. So far, then, we have dictum against dictum, in the English cases, with the Virginia case holding a writing necessary.

The question was up in Massachusetts in the same year that Doe v. Smyth was decided (i. e., 1826). Stebbins v. Lathrop, 4 Pick. 43. It was there held that nothing short of an express renunciation could be taken notice of by a court of probate. The court said:

“Nothing appears amounting to a renunciation. But, if this were doubtful, the question is not to be settled in the court of probate. The respondent has a right to be heard on this point in a court of law, and he cannot be so heard if the grant of probate should be revoked. The most that appears at present is an intention to renounce, and even this is not very clear. It is possible that the intention was merely to impede the creditors in the collection of their debts. Until the legatees shall actually renounce their legacies, their assent to the provisions of the will, which are apparently beneficial to them, will be presumed. Townson v. Tickell, 3 Barn. & Ald. 31. If they should persist in the intention to renounce the estate, the probate of the will will not restrain them. And then the question will be fairly raised whether this cambe done to the prejudice of creditors. This being the light in which we view this point, it will not be necessary to determine whether the acts of the devisees will in law amount to a renunciation. It is sufficient to justify the proceedings of the judge of probate in this particular that these acts, taken together,—especially the acts of Miner Stebbins,— are equivocal, and that nothing short of an express renunciation can be taken notice of in a court of probate. And there seems no good reason why the fact should not be verified by the record, when the parties are present, and may renounce if they are so inclined. No doubt a devisee may disclaim by deed the estate devised, as was decided in the case of Townson v. Tickell, 3 Barn. & Ald. 31; and perhaps he may disclaim without being subjected to the expense and trouble of executing a deed, as Holroyd, J., seemed to think. But it does not follow that a court of probate shall receive evidence of such disclaimer, and most certainly not when the evidence relates to acts of a doubtful bearing. In the case of Proctor v. Atkyns, 1 Mass. 321, it was decided that a court of probate could not determine upon a claim set up by deed, because it was determinable exclusively at the common law. The same reason applies with force to the supposed disclaimer in this case.”

In Webster v. Gilman, 1 Story, 499, the following appears:

“It may be even doubtful whether, under our laws, any renunciation or disclaimer not by deed or matter of record would be an extinguishment of the right of the devisee. But at all events it should be evidenced by some solemn act or acknowledgment in writing, or by some open and positive act of renunciation or disclaimer which will prevent all future cavil, and operate, in point of evidence, as a quasi estoppel.”

Here, again, the question was not decided.

The question was before the United States circuit court again in Ex parte Fuller, 2 Story, 330, and again it was not passed upon. The court said:

“As to the other point, there is no doubt that the devisee must consent, otherwise the title does not vest in him. But where the estate is devised absolutely, and without any trust or incumbrances, the law will presume it to be accepted by the devisee, because it is for his benefit; and some solemn, notorious act is required to establish his renunciation or disclaimer of it. Until that is done, stabit presumptio pro veritate. That is sufficiently shown by the case of Townson v. Tickell, 3 Barn. & Ald. 31, cited at the bar, and the' still later case of Doe v. Smyth, 6 Barn. & C. 112. Brown v. Wood, 1Mass. 68, and Ward v. Fuller, 15 Pick. 185, manifestly proceeded upon the same foundation. Now, in the present case, there is no pretense to say that Boss has ever renounced or disclaimed the estate devised to him. The statement of fact is that he has done no act accepting or declining the devise. If so, then the presumption of law is that he has, by implication, accepted it, since it gives him an unconditional fee.”

The case of Ward v. Fuller, 15 Pick. 185, went no further than to hold that a devisee before entry had a sufficient seisin to maintain a writ of right.

In 4 Kent, Comm. p. 533, it is said that—

“An estate vests, under a devise, on the death of the testator, before entry. But a devisee is not bound to accept of a devise to him nolens volens, and he may renounce the gift, by which act the estate will descend to the heir, or pass in some other direction under the will. The disclaimer and renunciation must be by some unequivocal act, and it is left undecided whether a verbal disclaimer will be sufficient. A disclaimer by deed is sufficient; and some judges have held that it may be by a verbal renunciation. Perhaps the case will be governed by circumstances.”

See, also, Perry v. Hale, 44 N. H. 364.

Prom the foregoing, we conclude that an acceptance should be presumed in this case, which presumption may be overthrown by acts inconsistent with acceptance. The only evidence here is the purchase of tax titles, and procuring and recording tax deeds of the premises, and the conveyance, by full warranty deed, within two years after Betsey Casler’s death, of the premises devised. The inference is strong that Henry Casler’s design in obtaining the deeds was to acquire a better title than that conveyed by the will, either because of some inherent defect in the latter, or from a desire to obtain the fee. There is perhaps room for the suspicion that his mother, Betsey Casler, permitted this, as the plaintiff’s counsel contends, or that Henry accomplished it without her knowledge, but in either case it tended to show a desire to obtain a better title than he then had. It does not necessarily follow that he was willing to disclaim a valid life estate for his chances under a tax title which, if invalid, might compel him to share his life estate with his brothers and sisters. Again, the testimony of the witness Beard that he found the land advertised in the paper, and bid it in, tends to show that the sale was not the result of collusion or fraud, and that Henry Casler obtained the tax title from Beard to protect his mother as well as himself. This testimony should not have been stricken out upon plaintiff’s motion. If the son, Henry Casler, never accepted the devise, it is an end of the case upon this record, entitling the defendants to a verdict, inasmuch as the tax deeds are prima facie valid, and conveyed the fee.

But, if Henry Casler accepted the devise, it becomes necessary to inquire whether he can set up his tax deeds against the remainder-men. This is said to depend upon the question whether he owed a duty to them to pay the taxes, or preserve the estate for them, analogous to the duty which his mother owed to him and them. We have found no case upon all fours with this, and we doubt if it can be said that the law imposes any such duty upon the second life tenant, during the tenancy of his predecessor. But we think it does not necessarily turn upon a duty to pay. While he was under no obligation to preserve the estate, if he chose to do so that he might reap the benefit of the devise, he should be content to look to the occupant, whose duty it was to pay them, for reimbursement, or, if not, he could expect no more than contribution from the other remainder-men, to whose benefit, as well as-his own, such payment inured. It would be inequitable to permit him to claim title under such circumstances, where he took under the same will that gave them an estate, thereby recognizing their right. Good faith towards the testator should forbid such an attempt to defeat his purpose. Were this claim to be sustained, it would make it easy for two life tenants, by collusion, to defeat the remainder-men, under circumstances like these. It may be said that this could be done by the mere disclaimer, but this is a mistake. See 2 How. Stat. § 5548.

We are cited to Blackwood v. Van Vleit, 30 Mich. 118, and Sands v. Davis, 40 Mich. 14, to sustain the claim that Henry Casler was under no disability as a claimant of the fee under the tax deeds. The former was-a case where one who went into possession before the tax levy was held not to be precluded from making and relying' upon a purchase of land at tax sale. In Sands v. Davis the question arose between tenants in common. In that case one bought a tax title that was outstanding at the time of the purchase of his interest in the premises, and therefore which he owed no duty, to the State or his co-tenants, to pay, and it was held that he might set up such title against his cotenants. Both of these cases recognize the proposition that one asserting a tax title may be under a disability, owing to his relations to others claiming interests in the land. In Blackwood v. Van Vleit it is said:

“It was not claimed in this case, so far as the record shows, that there were contract or other relations between Blackwood and Van Yleit that would preclude the latter from buying the former’s land for delinquent taxes.”

In Sands v. Davis, Campbell, C. J., uses the following language:

“If Sands had gone into possession by the aid of the other tenants, or in recognition of their rights, he might in that way, perhaps, have incurred some duties towards them. But he went in as a stranger to their claims, under a claim which denied their existence or validity. He became liable to an action of ejectment the moment he assumed possession. We see, therefore, no reason why hé could not then or thereafter, as well as he could have done it before, purchase a title which was at that time adverse to the holders of the whole original title. The case of Blackwood v. Van Vleit, 30 Mich. 118, holds, in conformity with these views, that there can be no estoppel against purchasing tax titles, except against one who had a duty to pay the tax or remove the burden.”

There is abundant authority that a tenant in common, whose duty it is to pay a portion of the taxes, cannot acquire a title, as against his cotenant, by purchase at a tax sale for the entire tax. Dubois v. Campau, 24 Mich. 360, and notes.

1 Wood, Landl. & Ten. § 54, says:

“In the absence of any reservation of rent, or other provision in the lease or conveyance providing therefor, a tenant for life, as between himself and the reversioner, is bound to pay the taxes assessed upon the premises; and if he fails to do so, and they are sold therefor, and the tenant becomes the purchaser, he cannot claim a title in fee against the reversioner.”

See, also, Cairns v. Chabert, 3 Edw. Ch. 312; Smith v. Blindbury, 66 Mich. 323; Patrick v. Sherwood, 4 Blatchf. 112; McMillan v. Robbins, 5 Ohio, 28; Pike v. Wassell, 94 U. S. 711; Sidenberg v. Ely, 90 N. Y. 257 (43 Am. Rep. 163); Varney v. Stevens, 22 Me. 331; Prettyman v. Walston, 34 Ill. 175; Hitner v. Ege, 23 Pa. St. 305.

Some of these cases hold that where the life tenant is compelled to make permanent betterments, or to pay off incumbrances to prevent a forfeiture, he may enforce contribution against the remainder-man, to the extent of his interest in the land. Cairns v. Chabert, 3 Edw. Ch. 312; Foster v. Hilliard, 1 Story, 77; Daviess v. Myers, 13 B. Mon. 512; Bell v. Mayor, etc., of New York, 10 Paige, 49; Eastabrook v. Hapgood, 10 Mass. 313; Atkins v. Kron, 8 Ired. Eq. 1. Thus it appears that, while the life tenant in possession may be under no legal obligation to pay an incumbrance, and therefore owes no duty to the remainder-man, if, to prevent a forfeiture of his estate, he does pay it, he has a claim against the interest of the remainder-man. Either party may buy in the incumbrance, but cannot hold it to the exclusion of the other, who is willing to contribute his share of the amount paid for the purchase. See cases cited, and Connecticut Mut. Life Ins. Co. v. Bulte, 45 Mich. 122; Whitney v. Salter, 36 Minn. 103 (1 Am. St. Rep. 656). In this case it was not clear that any portion of the incumbrance was chargeable to the life tenant, yet it was said that he should be regarded as having made the purchase for the joint benefit of himself and the reversioner or remainder-man,—citing 1 Washb. Real Prop. 96; Biss. Est. 248 (42 Law Lib. 139); See, also, Cooley, Tax’n (2d Ed.), 500-509. We see no reason why this doctrine should not apply equally to the devisee of a life estate not in possession, and can see no difference in principle. And we think the rule as applicable to taxes as to any other incumbrance. Therefore we think the right to assert these deeds against the remainder-men hinges on the acceptance or renunciation by Henry Casler of the devise.

Counsel for defendants attack plaintiff’s title, claiming that the quitclaim deeds given by the heirs of Henry Casler before his death conveyed no interest, for the reason that there “are no heirs to the living.” But the statute is a sufficient answer. The remainder was a future estate, which the statute (2 How. Stat. § 5551) declares to be descendible, devisable, and alienable in the same manner as estates in possession.

Counsel also contend that the devise is void under 2 How. Stat. § 5531, which reads as follows:

“The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.”

We think that statute has no application, for the power of alienation was suspended for the period of two lives in being only, viz., Betsey Casler and Henry Casler. See, also, section 5535.

Plaintiff’s title is also attacked upon the ground of | want of jurisdiction in the probate court to admit the will to probate, but we think this question is foreclosed by the stipulation that said will was duly probated, etc.

There is a further question in the case which is discussed by counsel for the defendants. There is nothing to show that the will was ever recorded, while the tax deeds were promptly placed upon record. The latter fact has significance upon the subject of renunciation, because, if Henry Casler was claiming under the will, there was no occasion for his recording such deeds. Again, the defendants are not shown to have had any actual or constructive notice of the will, or the rights of any of the parties under it. He was therefore apparently a bona fide purchaser, relying upon the record of the tax deeds, which was the only title appearing of record in Henry Casler.

As foreshadowed, our conclusion is that it was a question for the jury to determine whether Henry Casler accepted or renounced the devise, and that it was error to direct a verdict for th¿ plaintiff.

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

Long, C. J., Grant and Moore, JJ., concurred. Montgomery, J., concurred in the result.