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Campbell, J.
Bushey sued the American National Bank of Detroit to recover a balance of deposits which he claimed was never checked out. It appears without dispute that he began to deposit with this bank in June, 1868, but no bankbook is produced running back of April, 1870, and no checks were produced by him prior to that month. The bank book indicates from its leaves and a printed heading that it could not have contained any earlier entries. This is manifest beyond a doubt. The bank boolts show a previous closing of accounts and return of checks, which Bushey disputes. The principal importance of this testimony is that it is claimed these old checks would show that Bushey allowed one Campau to sign for him. Beyond this these matters are of secondary importance.
The course of the accounts shows that in April, 1870, Bushey deposited $325, which was all drawn out within three weeks. On December 30,' 1870, he made his next deposit of $1000. This was all checked out by the 20th of February, 1871. One of the checks of $300 is now disputed as forged. He made his next deposit in August 1871, of $290, which he drew out in four days. He made no other deposit for about a year. In August, 1872, he deposited $1300, and on September 25th, deposited $700. All of this but $50 he drew out by the seventh of October. On the 18th of October he deposited $900 and drew it out in the course of three .weeks.
At this period he stopped dealing with the bank and made no further deposits or checks.
Three years thereafter, in November 1875, he was notified by the bank that he had a balance of $50 on deposit not drawn out. He at once drew this out and had no further communication with the bank until sometime in July, 1877, when, for some reason that is not very clearly explained, but which may have arisen from a litigation then pending with one Charles F. Campau, he went to the bank and got his checks included in the entries in the bank book from April, 1870, returned, and the book written up.
Two of the returned checks were signed in his name in tlie handwriting of Oampau, and these Bushey asserts to have been forgeries. Of the remainder some were filled out by Oampau and some by other persons, but all were signed by a signature meant to represent the name of Bushey and appended by himself. He could not write, but had learned —at some period which is disputed — to make this signature. There was some testimony tending to prove that he learned to make it about the time of his banking business; other testimony puts it earlier. There was also testimony that Campan had signed checks for him on other occasions. Bushey denied this, and the absence of the old checks became important on this inquiry.
The two checks which were disputed were one of $300, January 7, 1871, and one for $50, September 7, 1872. Each of these was at a period when the bank books show the accounts were drawn down in such a way as to balance by allowing them as genuine, and the larger check was followed by two fully-balanced transactions, succeeded by long periods when no new deposits were made; and when-such were made they were speedily drawn out. The only instance during the entire dealings when anything remained on credit as not drawn out soon after depositing was the balance of $50, which Bushey drew out in November, 1875, when notified it stood to his credit.
• In this interval between the last deposit and the return of the checks in July, 1877, there were changes in the bank tellers, but three were examined who had to do with the business. Their testimony tended to show the improbability of paying the two chocks in question without Bushey’s authority. Upon the question whether Campau had been authorized or allowed to sign there was a conflict. • Bushey’s testimony was the evidende on which the jury must have found in his favor. On the trial Bushey was allowed, for the purpose, as was claimed, of corroborating his denial of Oampau’s authority, to show that when sick he signed checks himself while in bed, and also to show that his daughter and others attended to writing his letters, but that, although she could write, he never authorized her to sign checks.
This was erroneous. It had no tendency whatever to show that he never authorized Campau to do so. A hank would not pay checks without some knowledge or supposed knowledge of their authenticity, and it could get no such knowledge if checks were signed by any one who might happen to be present, and confided in, at any particular time. A man who cannot write and who draws checks, must confide in-somebody for some purposes, and it .must depend on testimony to be established what persons are trusted and to what extent. Authority or the want of it as to one throws no light on dealings with others.
We do not think it was competent to introduce direct evidence concerning what took place at the trial of a suit on behalf of plaintiff below against Campau, as that controversy can have no bearing on the merits of this. There may no doubt be occasion at times to cross-examine a witness concerning his own conduct or statements on other occasions, but the existence or nature of that suit, to which the bank was not a party, could not be allowed to affect this. There was some testimony concerning the loss of a stub-book, in which Bushey was allowed to go beyond this rule. We think when he had stated that he had been unable after search to find the book, he could not be allowed on direct examination to bring into this case insinuations and statements about it that could only be understood by getting before the jury in some way the character of that contest, as affecting this. The bearing of that-might have been material against him if Bushey had sued Campau for the money covered by these checks. That would show the checks legally drawn. But Bushey did not undertake to prove this, and plaintiff in error did not.
There are several points in the record which do not strike us as very important in themselves, and which may not come up again. There is, we think, a serious difficulty in the way in which the case went to the jury.
The court put the case to the jury upon the distinct grounds that there must be proof of either original authority or ratification of the execution of the checks, in order to defeat plaintiffs right of recovery, and that the defendants below had the burden of proof to make out this authority by a preponderance of testimony. In referring to the testimony on this authority the facts concerning the deposits and their speedy withdrawal were treated as only bearing on the likelihood of Campau’s risking detection; and the balancing of the account in November, 1875, was entirely disregarded. As the charge referred somewhat particularly to the various facts for and against ratification these matters became important in more than one light.
We are bound to take knowledge of the ordinary rules and necessities of business, and to deal with controversies in view of these. Banks have a right to expect their depositors to know these usages, and to conform to them. And they have a right to rely to a reasonable extent on the presumption that their customers are thus dealing with them.
We think that the fact that Busliey on so many different occasions drew chocks which exhausted his apparent balances precisely, and that he did not quarterly or otherwise present his book for balancing, or withdraw his checks, was in itself very strong evidence that the. account was correct, and should have been so treated. The intrinsic improbability that a small depositor could in a few days forget nearly a third of his single deposits and draw out precisely the remainder, and suppose it exhausted, cannot be separated in this instance from the subsequent failure to find it out, and the neglect to make reasonable inquiry into the state of his bank debits and ci’edits. To leave this all out of the category of evidence of authority, and treat it merely as bearing on the likelihood that Campau would have dared to run risks of discovery, was in our opinion misleading. We are not called upon to consider to what extent, if any, such conduct would operate as an estoppel, because the subsequent dealings in November, 1875 make this unimportant.
When Busliey was notified by the bank that on his account there was a balance in his favor of $50, his attention was necessarily called to the entire account, and it became his duty to examine it. He was not told, and there was no oeca sion on the part of the bank to tell him, how this balance arose. The bank had a right to assume that he kept accounts himself and had the means of tracing out the items, and that if he had not full data he would resort to the bank to get them. He made no inquiry or objection, and at once acted on the notification and drew out the admitted balance, and for nearly two years never interfered further. There could not very well be a stronger case of acquiescing in an account stated.
Without now considering whether under such circumstances of acquiescence and delay theestoppel would be absolute, there is no doubt of its effect on the burden of proof.
In every case, in a very important sense, the plaintiff always has the burden of establishing his cause of action by a preponderance of all the evidence in the cause. In a more limited sense each party has a right to rest on such presumptions as have been raised in his favor until overthrown. But there is no question as to the presumption in favor of an account stated and acted upon by both parties. If one does not choose to look over the items it can make no difference. When, as in this case, the depositor ought to know from his own accounts and vouchers the precise state of things, his concurrence merely assumes a more convincing form to the other party. The impossibility that clerks and tellers in the management of business involving such a multitude of small details could remember individual instances, is a very strong reason for requiring diligence in the single depositor to take no misleading step.
The court should have held this account stated as such evidence as called upon plaintiff to bring himself within some rule that would allow him to impeach it, and that the burden was on him to impeach it.
Judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Cooley, J.
In the year 18Y8 the plaintiff in error having a judgment in circuit court against John E. Kitton and Brooks W. Gossage, garnished Samuel H. Woodruff as a debtor of Gossage upon a justice’s judgment; and on his disclosure took judgment for some $80. In February following John N. and Harvey Mellen applied on affidavits to have this judgment vacated, and made a showing under oath that the indebtedness of Woodruff was due, not to Gossage, but to themselves. The circuit court heard their motion and granted it, and at the same time directed the affidavit for garnishment to stand as a declaration and that an issue be made thereon. Issue was made by the Mellens accordingly, in the garnishee suit, and was tried by the court, who found that the Mellens were the real creditors. But it appeared in the case that before the judgment was vacated Woodruff had made payment to the plaintiff; and thereupon the circuit judge entered the following order:
“ The First National Bcmlc of Port Huron v. John E. Kit-ton and Broolcs W. Gossage, Defendants. And Samuel H. Woodruff, Garnishee Defendant, and John N Méllen and Ha/rvey Méllen, Intervening Claimants.
“ This cause as to the right of the said claimants in and to the indebtedness disclosed by said garnishee came on to be heard, and the court having heard the proofs and allegations of the parties and the arguments of counsel, it appearing that the check upon which was rendered the judgment stayed by said garnishee defendant, was in fact the property of the said claimants, that the said Brooks W. Gossage had no right, title, claim or interest in or to the same, and said garnishee defendant has paid over to the said plaintiff (the First National Bank of Port Huron) the said amount mentioned in his disclosure, viz.: $83.31 less the sum of ten dollars ($10) paid to the attorney of said garnishee defendant: Therefore it is adjudged-and determined that said claimants do recover of and from the said the First National Bank of Port Huron the sum of 15 and 31-100 dollars without costs, and that the said claimants have execution thereof.”
Treating this order as a judgment in favor of the Mellens, the plaintiff brought error.
I. This order is no judgment. There was no suit pending between the plaintiff and the Mellens in which a judgment could be entered. The suit pending was the garnishee suit, the defense of which the Mellens had been permitted to take upon themselves, and this order was collateral to that suit. Error, therefore, would not lie upon it, and the writ will be dismissed, but without costs, no motion for dismissal having been made.
This disposes of this record, and we might leave the case here, but it may be advisable to save further litigation over this small sum of money by calling attention to a few obvious facts and principles.
II. The judgment against Woodruff did not bind the Mel-lens, who were no parties to the proceeding, and they would have been under no necessity for moving to vacate it had it not apjaeared — as it did — that the court had made an order staying all proceedings for the collection of the original justice’s judgment. Perhaps even that stay was unauthorized, but it was proper to move to get rid of it.
III. The circuit court in the exercise of its discretion had the right to vacate the judgment against Woodruff, and when it did so, the fact that Woodruff had made payment to the plaintiff could not protect him against the claim of the Mel-lens. The money paid would be held by the plaintiff for Woodruff’s use, and he would be entitled to have it refunded to him on demand,
IY. It seems scarcely necessary to say that the plaintiff had no right, legal or equitable, to retain from another man’s money an attorney fee which it had paid in an unsuccessful attempt to get more from him.
Woodruff is entitled to judgment in the garnishee suit, and to have back from the plaintiff the whole amount he paid, and the Mellens are left at liberty to collect their judgment of Woodruff.
Marston, C. J. and Graves, J. concurred. | [
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] |
Cooley, J.
This case originated in justice’s court. The declaration was in trespass quare clausum, and omitting-formal parts, was as follows: “ For that the said defendant on the tenth day of December, A. D. 1873, and on divers-other days and times between that day and the day 'of September, 1874, the close of the said plaintiff, situate in the-township of Locke, in said county, and known and described as being the north-east quarter of section eight, in township four north, of range two east, State of Michigan, broke and entered and with his feet in walking trod down, trampled upon the grass of the plaintiff, growing there, and with his-hands, and with axes and other implements, broke open the house of the plaintiff on said premises, and cut, broke and otherwise injured the floor, ceiling, doors, windows, walls,. door-casings and nnder-casings of said house of the plaintiff, and other injuries to him, the said plaintiff, then and there did, against the peace of the people,” etc. The defendant pleaded the general issue merely, went to trial and recovered judgment, and the plaintiff appealed to the circuit court.
The statute provides that in every action where the title to any lands shall in anywise come in question, any claim to title to lands made by the plaintiff in his declaration, and therein described, shall be deemed to be admitted by the defendant, unless he shall give notice under the general issue showing that the title to lands will come in question, and give the bond for which the statute provides, for the transfer of the cause to the circuit court. Comp. L. §§ 5326-5329. The notice and bond were not given in the justice’s court in this case.
On the trial in the circuit court the plaintiff gave evidence that he resided in Lansing; that between Christmas and New Tear’s, 1873-4, he visited the place and found a family in the house named Hilliker. He directed them to get out, and understood that they did so shortly afterwards. In the spring following he went there again and found defendant there, who admitted that he had been making hoops in the house, and also that he put Hilliker in. Plaintiff then described the injury that had been done to the house in making hoops there.
On the cross-examination of the plaintiff and. also by his own evidence afterwards the defendant sought to show that plaintiff derived his title to the land from one Case, and that at the time Case conveyed ■ to plaintiff, and also at the time of the alleged trespass defendant was lawfully in possession under Case. All offers of evidence to this effect were objected to and ruled out, though defendant explained its purpose to be to disprove any trespass by showing that he, and not the plaintiff, was in peaceful possession at the time the acts complained of were committed. His counsel also put to him the following question, which was objected to and ruled out: “ By what right and under whose authority did you occupy the premises at the time of the alleged trespasses, if you did occupy them ? ”
All these rulings of the circuit judge were based upon the assumption that the plaintiff had asserted title in himself by his declaration, and described it, and that defendant had admitted it by his pleading. If the assumption had been well founded, the judge would have ruled correctly in holding that defendant could not show any right or possession in himself as tenant; for a tenancy of any sort would be a species of title. But a reading of the declaration shows that the plaintiff does not assert or describe a title. He alleges that the defendant unlawfully broke and entered his close; and for the purposes of this action the close was the close of the plaintiff if he had peaceable possession, even though he had no title. But it was not the close of the plaintiff if the defendant was in peaceable possession. Dewey v. Bordwell 9 Wend. 65.
It is plain from the record that the judge was misled as to the declaration — inadvertently, no doubt — -for he lets fall a remark indicating that he understood title in fee had been counted upon, and this was at the time corrected by no one. He would not have made this mistake had he looked at the declaration for himself. This is further manifest from his remarks concerning the case of Ehle v. Quackenboss 6 Hill 537, in which he erroneously assumes that the declaration was different. It was correctly ruled in that case that plaintiff under such a declaration relies upon his possession, and defendant is at liberty to disprove it.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Graves, J.
The plaintiffs brought this action on an instrument of the following tenor:
“ $50. Dundee, Mioh., March 5, 1872.
“ In consideration of the construction of the Chicago & Canada Southern Railway through or within one-half mile of tlie village of Dundee in the county of Monroe, State of Michigan, within three years of this date and the building of passenger and freight depot at Dundee, Mich., I promise to pay to the treasurer of said railway company or bearer, the sum of fifty dollars in thirty days after said road and depot are constructed as aforesaid.
“Emory A. Stowell.”
The suit was commenced before a justice of the peace and was appealed to the circuit court and under the rulings of the judge a recovery was denied. .
The only question which calls for remark arises on the meaning of the contract, and for the purpose of its solution a resort to extrinsic matters resting in parol is not required and should not be allowed. The view taken of the case will be explained briefly. My own opinion may be thus stated: in specifying the Chicago & Canada Southern Railway and in referring to the construction of its road, the parties contemplated not only the identical corporation so named, but also the very road from one point to another as it stood described in the charter. It was regarded as a. single and entire work to extend from one fixed and known point to another and hence the writing made no provision for applying the arrangement to anything less or anything different. The locality of these points was not expressed in writing, but it was assumed to be understood. The reference to the corporation and the circumstances connecting the agreement with the charter would authorize a recourse to the latter, when necessary, to show where the road was to begin and where it was to end, and thus afford the contract all needed aid on the subject.
The effect was to render the charter description as completely a part of the instrument in suit as it would have been in case the parties had actually inserted it. According to this theory, which seems to me to be the true one, it would, in my view of it, follow that the things to be performed as preliminary to any right to the $50 were — -first, the construction within three years of the Chicago & Canada Southern Railway from one charter point to the other; and second, its construction between the termini in such manner as that it should pass through Dundee or within half a mile and be there provided with a passenger and freight depot. But this construction of the agreement was not complied with. The charter contemplated that the road to be built should extend from the east line of Monguagon, in Wayne county in this State, to the city of Chicago, and it has been built no further west than Fayette in the state of Ohio, a distance of about seventy miles. It is not denied that in building this section the agreement has been so far observed. The road runs past Dundee and a passenger and freight depot is put up there. It is also true that by connecting with other roads a through line to Chicago is established.
Still, as I regard the contract, the maker of it bargained for something more. His promise required that the whole line should be built, and not merely a section of it, and the claim would not be unreasonable that a distinct and independant road made by the company for the whole distance would promise greater local advantage and a more valuable return for contributions than a short road operated in connection with roads of other companies to complete the line. This opinion agrees with that of the circuit judge.
But my brethren hold that this conclusion is erroneous. In their judgment the case is plainly governed by Swartwout v. Mich. Air Line R. R. Co. 24 Mich. 389. They are satisfied that the contract itself, when read in connection with the chartered powers and purposes of the corporation, and with a proper regard for those considerations of practical importance which manifestly actuated the parties, fairly imports that the promise was made to afford aid in constructing the road, and contemplated that the money should be payable in case of the conxpletion as agreed of that part of the line which has been built, and that a construction which would defer the right to call for payment until the whole line should be actually built by the company, or would deny the right to payment in case of failure to construct the road the entire distance to Chicago within three years, would defeat the intent of the parties and disappoint the manifest object which was meant to be carried out.
As a consequence of this construction the judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Marston, C. J.
The defendants in error brought au action of replevin to recover possession of a quantity of pine saw logs, which the defendants below held and claimed alien upon for charges for boomage, driving the logs, and tolls to an improvement company. There is no serious dispute concerning the facts, and no question of ownership arises.
August 23, 1878, John Jenkinson entered into a written agreement with Pitts & Cranage (plaintiffs below), whereby he agreed to sell them a large quantity of white pine saw logs “to be delivered to said Pitts & Cranage at the boom of the Au Gres Boom Company at the mouth of the Au Gres River,” and three million were to be so delivered in the spring of 1879.
March 29, 1879, a written agreement was entered into between the Keystone Lumber & Salt Manufacturing Company and Mapes, Gates & Fay, as parties of the first part, and John Jenkinson of the second part, under which the parties of the first part agreed “ to break in, put afloat, and drive down within the limits of the Au Gres Boom Company ” the logs then on the banks and roll-ways so sold to Pitts & Cranage. “ Said first parties to break in said roll-ways, put afloat and drive down said logs within the limits of the boom aforesaid, on the first stage of water,” etc., and in consideration thereof the second party was to pay them fifty cents per thousand feet.
It is conceded that the first parties satisfactorily performed this contract on their part. The Au Gres Boom Company is a corporation organized under the laws of this State, and it is admitted that this company was entitled to receive, and had a lien therefor, seventy cents per thousand feet for its services about the boomage, rafting, etc., of these logs.
Commencing above the limits of the Boom Company, the Au Gres Elver East Branch Improvement Company, a corporation organized under the laws of this State, had improved the river by dredging and otherwise, and was entitled to twenty cents per thousand feet as tolls upon all logs passing through that portion of the river by it improved. That this company was entitled to twenty cents per thousand for all the logs in dispute was not controverted upon the trial below or in this court. The statute gives the Improvement Company and the Boom Company each a lien upon logs for the amount of their respective charges.
Ferdinand Johnson was and is secretary and treasurer of the Improvement Company, and treasurer of the Boom Company, and he had “ authority to receive pay for the running of the logs on the contract ” of March 29, 1879, between the Keystone Company, Gates & Fay, and Jenkinson. Parties wishing to get their logs when rafted, from the Boom Company, had to procure from Mr. Johnson an order upon the superintendent of the Boom Company directing him to deliver the logs, and all legal charges against the logs were to be paid by Mr. Johnson.
About the 27th of May, 1879, Pitts & Cranage were notified that two rafts of these logs were ready for delivery by the Boom Company, and they then ascertained that Mr. Johnson acting for the companies and parties in interest, claimed to hold these logs, and have a lien thereon as follows: In favor of the Kej'stone Company and Gates & Fay for services under the contract of March 29th, fifty cents per thousand feet; twenty cents per thousand feet in favor of the Improvement Company, and seventy cents per thousand feet in favor of the Boom Company. Cranage, representing the plaintiffs below, the owners of the logs, conceded the correctness of the Boom Company’s claim; he did not question the legality of the Improvement Company’s claim, but insisted that the twenty cents per thousand, toll to the Improvement Company, Jenkinson in the first'instance was to pay, and under his contract of March 29th with the Keystone Company and Gates & Fay, it was for them to pay the Improvement Company tolls. And acting upon this theory Cranage tendered a sum in gross sufficient to pay the Keystone Company and Gates & Fay their fifty cents per thousand and the Boom Company’s seventy cents per thousand, and demanded the logs, which being refused, this action was commenced.
A number of very interesting questions were raised and discussed, concerning the right of the respective parties to a lien for their charges and the necessity of each retaining actual possession in order to preserve the same, but under our view of this case these questions are immaterial and will not be considered.
Jenkinson under his contract with Pitts & Cranage agreed to deliver the logs at the boom at the mouth of the Au Gres river. As between these parties it is very'clear that the cost and expense, including tolls, would be for Jenkinson to pay. Jenkinson let the contract to the- Keystone Company and Gates & Fay to put afloat and drive down within the limits of the Boom Company these logs. In driving down these logs they had to pass over the amended highway of the Improvement Company, and thus become liable to a charge or toll for the use thereof.
If Jenkinson under his contract with Pitts & Cranage was bound to pay the tolls, of which there can be no question, why should not substantially the same language in the contract of March 29th cast this burden upon the parties who thereby agreed to deliver the logs in the Boom Company’s limits % Had Jenkinson let to these parties the contract of cutting, banking and delivering the logs at the place he had agreed, there could be little doubt but that all would concede the correctness of their paying the tolls, and yet wherein would such a contract differ from this ? In their undertaking to deliver at a certain point, had it become necessary to build a dam, or purchase from the owners of a dam a “ flood of water ” as is frequently done, or to employ the services of a tug, the expense thereof would necessarily fall upon them. Hnder such circumstances they could no more call upon the owner of the logs to pay such charges, than could a person who had undertaken to deliver a lot of cattle at a certain point, or a wagon-load of wheat, call upon the owner thereof to pay the tolls of the turnpike companies over which the cattle had been driven or the grain drawn. Where parties unqualifiedly undertake for a sum certain to sell and deliver, or to deliver at a point specified certain things, they must do so, and if, in order to perform their agreement, they must use the improvements or facilities offered by third persons, the expense thereof they cannot charge to the owner of the property.
The contractors under their agreement of March 29th could not deliver these logs at the place agreed upon, without payment of this toll. It was a part of the necessary expense and must, if not paid by the contractors, become and remain a charge upon th% logs, but this charge could with no more propriety be cast upon the owner than could the labor account of breaking the roll-ways and driving the logs. It is said the statute gave the Improvement Company a lien upon these logs for its tolls. Granted, and had it decided not to let the logs pass into the Boom Company’s' limits until payment thereof, how could these contractors have performed on their part, and yet refused to pay the tolls % That the parties running the logs under such a contract must pay the tolls we have no doubt. This being so the tender made to Mr. Johnson, who represented all the claimants, was sufficient to cover all legal charges against the logs, as the twenty cents per thousand for tolls was included in the fifty cents agreed to be paid for running and delivering the logs under the contract of March 29th.
But it is said the tender was made in gross, whereas the amount of the respective liens or claims should have been tendered separately, and that the tender made was coupled with certain conditions, whereas a tender to be good must be unconditional.
A tender may very properly be coupled with conditions such as the party has a right to make and is entitled to as resulting from a payment or tender legally made. This has been repeatedly recognized in this court, and we need but refer to one or two of the late cases. Brink v. Freoff 40 Mich. 614; Lamb v. Jeffrey 41 Mich. 719. The plaintiffs could not obtain possession of their logs from the Boom Company, even had they paid in full all that was demanded, without an order from Johnson, and they on making a tender to him had a right to couple it with a demand for their logs, or what would entitle them to a delivery of the logs.
And they were under no obligation to separate the sum offered and make a distinct tender to meet each separate claim. Johnson represented all the parties and companies having claims against the logs, and he alone could give the proper order entitling plaintiffs to the possession thereof. It was for him to separate and pay or credit to each what rightfully belonged to it. ITis knowledge enabled him better than the plaintiffs to do this. Besides he demanded more than he was legally entitled to, and he could not thus put plaintiffs in the wrong, or compel them at their peril to separate the legal from the illegal demands; and it may be questionable whether it was not the duty of the Boom Company, or of Johnson acting for it, to tender delivery of the logs, before having any right to demand the legal charges thereon.
It is also claimed that the court erred in excluding evidence of conversation between Jenkinson and Fay, be*ore the making of the contract of March 29th, relative to the tolls and the amount he would be willing to pay. It is said that the contract must be interpreted in the light of the surrounding circumstances, and that the conversations referred to would be admissible for such purpose, citing several cases in this court in support thereof. In this contract there is nothing ambiguous; the language is plain, free from doubt and no technical terms are used, so that the only question is as to the legal meaning of the contract. In such a case oral evidence in aid of the construction is not admissible. A plain and unambiguous contract cannot be varied in its legal effect, by the understanding of the parties at or previous to its execution.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Defendants in error sued plaintiffs in error and recovered damages for breakage of two marble soda fountains, taken by the railroad agents at Marquette and carried, one to Ncgaunee, and one to Ishpeming. The fountains were packed in New York and forwarded by the New York Central Bailroad, and by that company, as is claimed, turned over at Buffalo to the Lake Superior Transit Company, which is a connecting line. The Transit Company delivered the property at Marquette to the plaintiff in erroi with which it had no business arrangements, but which was the proper carrier from Marquette to tne destination of the articles. The boxes, which were marked to be nandled with care, were then apparently sound except that a handle of one, consisting of a strip of board, was injured. Each box when opened at its destination was found to contain a fountain of which some of the marble was broken.'
The testimony for plaintiffs as well as that for defendants indicates that there was no appearance in either package which would indicate damages at any time, except tne broken handle. There was no evidence of neglect on the part of the railroad company, and there was affirmative evidence to the contrary. It was conceded that the railroad company had no means of inspecting the property. Under these circumstances the circuit court told the jury that if the goods were delivered in New York in good order to the first carrier they would have a right to infer that they continued so when received by defendants below, unless evidence was given which showed the contrary. The court also told the jury that if they found it necessary to consider the testimony given by the agents and employees of the railroad, they should bear in mind the interest they have in protecting their company and shielding themselves from blame. In doing this a very similar statement was made concerning the testimony of the packers in New York.
While there may appear on the trial on direct or cross-examination such bias or behaviour as would, authorize comment by counsel to the jury, we think it is not within the province of a court to instruct a jury, or suggest to them, that any suspicion attaches to the testimony of agents or servants of a corporation or individual by reason of their employment, or that they have any such interest as requires them to be dealt with differently from other witnesses. Even interested witnesses are now let in by statute, and the policy pointed out by the statute indicates that the old presumption that interest will necessarily or probably lead to falsehood, was unjust and untrue. But none of these witnesses could have been'excluded under the most rigid common-law rules, and whatever license of criticism may be allowed to counsel, it was not, we think, legally justifiable to invite the jury to look upon such testimony with disfavor. There is no legal presumption against it.
Upon the other question we think that the ruling was also wrong. The case comes directly within the principle laid down by this court in M., H. & O. R. R. v. Langton 32 Mich. 251, where it was sought to hold these same parties responsible for delivering hay in a damaged condition, by showing that it was in good condition when delivered to a previous carrier at Sheboygan. In that case as in this the court below held that such a showing shifted the burden of proof upon the railroad company, and we held that this was error, and that the plaintiff was bound to show affirmatively that the hay was delivered in good order at Marquette, to the railroad.
¥e think this rule is just, and are not at all disposed to depart from it. A carrier has no means in a case like this of opening packages and examining their contents. Unless r there is some outward token which is suspicious, he may and I must take the articles and forward them on the usual terms. ITe is bound in law to deliver them in the condition in which he receives them. But there can be no further responsibility ; and any rule of law which would make him responsible actually or presumptively for the conduct of previous independent carriers, would be grossly unfair, and subject him to losses against which he could have no protection. He has nothing to do with any of the previous dealings with the property, and no means of informing himself about them. We cannot see how this case is different from what it would have been if the plaintiffs themselves had delivered the boxes to the company at Marquette. In law the Transit Company acted merely as plaintiffs’ agent in turning them over, and caniiot be treated as representing the Marquette Iiailroad Company for any purpose without reversing the whole order of business. Fitch v. Newberry 1 Doug. (Mich.) 1.
In view of our previous decision we should not feel justified in going into this question at all, if it did not seem to be imagined that if the case of Laughlin v. Railway 28 Wis. 204 had been fully called to our attention it might have changed our views. The other cases cited on the argument, except one from North Carolina following it, do not have any particular bearing. In that ease the court, treating it as a question not directly covered by previous precedents, held that it would be more convenient and less onerous to the owners of goods to adopt such a rule as is contended for by the plaintiffs below. The only ground discovered for it was the presumption that things remain as they once have been shown to exist. The cases cited as resting on that presumption were not at all in point except by some assumed analogy.
We certainly have the highest respect for the decisions of the court which so decided. But we cannot convince ourselves that the decision is well founded on legal analogies, or correct in principle.
The presumption that things remain unchanged applies in such a case as the present just as forcibly backward as forward. It may quite as reasonably be presumed that the goods were delivered at Negaunee and Ishpeming in the condition in which they were received at Marquette, as that they came to Marquette as they left New York. The goods were certainly damaged when they reached their destination. To assume that they were damaged after they left Marquette, and not on any of their previous removals, is to make a very arbitrary assumption which has no more foundation in probability than any other. If it were worth while to enlarge on what is confessedly a presumption not resting on any sure foundation in experience, it might very well be questioned whether such a presumption is admissible at all as applied to things the position of which does not remain either fixed in place or free -from disturbance by human agencies. But we need not enlarge on this because the nature of the suit itself raises different presumptions which are well recognized.
This suit is based on the negligence of the carrier. It can only be maintained on the theory that the carrier or its servants did not properly care for or handle the goods. There is no rule better established or more righteous than the rule that any one who claims a right to damages for negligence must prove it. The presumption that a party sued has done no wrong must prevail till wrong is shown. A carrier’s obligation to carry safely what he received safely is independent of care or negligence. But in the absence of proof that there was property delivered to him, or safely delivered ■to him, any presumption that he received it is one which goes beyond and behind the duty of a carrier and enters into the origin and making of the contract. Until such property comes into his hands there is nothing for a contract to act upon, and the contract is not proved until that is proved.
In a somewhat similar case, Muddle v. Stride 9 C. & P. 380, Lord Denman told the jury that if it were left in doubt what the cause of damage was, the defendants were entitled to their verdict, “because you are to see clearly that they were guilty of negligence before you can find your verdict against them. If it turns out, in the consideration of the case, that the injury may as well be attributable to the one cause as the other, then also the defendants will not be liable for negligence.”
In Gilbart v. Dale 5 Ad. & El. 543, the same rule was laid down, and it was held that there could be no recovery without proof, and that the presumption could not be raised without foundation. And in Midland Railway v. Bromley 17 Q. B. 372, the same principle was affirmed, and it was held that if the evidence was as consistent with the claim of one side as with that of the other, the plaintiff must fail, because he must make his proof preponderate.
There is no reason for presuming that the Marquette Nail-road did the mischief, that would not arise with equal force, according to the Wisconsin decision, against either of the previous carriers had they been sued instead. Had the first carrier been sued it would unquestionably have been bound to show a safe transit, because that carrier received tbe articles in actual good order. A presumption that has no better foundation, and that applies to one as readily as to another, ought not to prevail to raise a further presumption of negligence without proof.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Cooley, J.
There are two distinct and very dissimilar statutory provisions for the appointment of guardians for persons not minors who are found to be incompetent to manage their estates properly.
The first entitles the relations or friends “ of any insane person, or of any person who, by reason of extreme old age or other cause, is mentally incompetent to have the charge and management of his property,” to apply to the judge of probate and have a guardian appointed for him. Comp. L., § 4822.
The second is, that “ when any person, by excessive drinking, or by gaming, idleness or debauchery of any kind, shall so spend, waste or lessen his estate, as to expose himself or his family to danger of want or suffering, or the county to charge or expense for the support of himself or his family, any superintendent of the poor of the county, or director of the poor, or justice of the peace of the township of which such spendthrift is an inhabitant, or in which he resides, may present a complaint to the judge of probate, setting forth the facts and circumstances of the case, and praying to have a guardian appointed for him.” Comp. L., § 4825.
The petition in the present case was meant to comply with the first of these provisions. It sets forth that “ said Asa B. Brown is incompetent to have the care, charge and management of his property. He is old and infirm.” . It then proceeds to allege that he is so addicted to the excessive use of intoxicating drinks as to be liable to become the victim of designing persons, and that through intoxication and foolish speculation he has within fifteen years wasted more than half of a considerable estate. These last allegations would have been proper in a petition filed under the second provision above recited, but are mere surplusage under the first.
Issue was taken upon the petition in the probate court, and a guardian was appointed. Appeal being then taken to the circuit court and the case called for hearing, the court, on objection from the respondent, refused to receive any evidence for the reason that the petition was believed to be fatally defective. The petitioners bring the case up on exceptions.
The ruling was correct. The incompetency set out in the petition is not necessarily mental incompeteney. Age and infirmity are not inconsistent with vigor of intellect; and, therefore, the averment that respondent is old and infirm cannot stand as a substitute for a direct averment of mental incompetency. The other averments in the petition tend to prove the respondent to be a spendthrift; but a guardian for a spendthrift, as already stated, is not appointed under the statutory provision here invoked.
The defect in the petition is not formal, but goes to its very substance. The statute contemplates the existence of insanity or of mental infirmity that is equivalent in destroying mental competency. It is consistent with everything alleged that the mind may have been sound and vigorous.
The order must be affirmed, with costs.
The other Justices concurred. | [
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] |
Cooley, J.
Bulte brought ejectment against the Insurance Company and one Hebert, its tenant, to recover certain lots in the city of Detroit. The facts out of which the litigation arose are the following:
On September 11, 1872, the lots were owned by one John P. Mack. On that day he executed to the plaintiff Bulte a mortgage on the lots for the sum of $1750, and on November 25, 1871, he gave another mortgage to the Insurance Company for $9000. Both mortgages were duly recorded. In May, 1877, the Insurance Company foreclosed its mortgage by ex parte proceedings and became the purchaser at the sale, and received a deed which became absolute May 26, 1878. In October, 1877, the land was sold for delinquent state and county taxes assessed in 1876, and William A. Moore became purchaser, subject to a year’s redemption. No redemption ever took place. In December, 1877, Bulte foreclosed his mortgage by ex pa/rte proceedings, became the purchaser and took a deed which became absolute December 15, 1878. December 21, 1878, Moore gave a quit-claim deed to the Insurance Company. His relations to the company at that time are explained in his evidence, which, being important, and all there was on the subject, is given in full.
Mr. Moore testified that he was a lawyer by profession; that he had made loans for the Connecticut Mutual Life Insurance Company since 1871; that he had been their attorney in some suits at law, and had had some suits against them; that he did considerable general business for them as attorney; that the firm of Moore, Canfield & Warner, with which he is connected, have been the attorneys for said company in many cases for six or seven years past; that ho negotiated the loan to Mack from the said company; that after making said loan the papers were all sent to the office of the company at Hartford, and the money was all payable to them there ; that if the money was not paid they generally wrote him to induce collection or payment by law or persuasion; that he looked after the loans of said Insurance Company in respect to the condition of the property, taxes, etc., to see that the property was not sold, to see that the titles did not accrue in other hands against the company ; that he generally bid in the lands in his own name, but by no special arrangement or anything of the kind; that he generally quit-claimed to the company when the property was sold ; that he never executed a quit-claim to the company that he recollected, except this one, of any property that he ever bid in himself; that some property had been sold, and where property had been sold he conveyed to the party who purchased, by deed or assignment of the certificates, whatever was necessary; that he generally drew his own check and paid the taxes himself ; that in some cases he had been re-imbursed by the company, and in some not; where the company has held title he has been re-imbursed; that for a year and a half or two years past the firm of Moore, Canfield & Warner had had the charge of the property and paid the taxes and rendered the regular accounts and the company' re-imbursed them from time to time; that the mortgage came to him to be foreclosed after - a portion was due; that he advertised it and conducted the proceedings to an end; that the property was advertised for foreclosure prior to the bidding in on the tax sale; that when he undertook to buy in the tax title he was conducting the business of the company in respect to foreclosing their mortgage; that in purchasing property on tax sales he would not make a title adversely to the company; that he never would have assigned to anybody else; that he purchased the tax-title because he thought under the circumstances he ought to do it; that he did not intend to create any title against the Connecticut. Mutual Life Insurance Company, but that he did that as he did every other; that he did not go into the business of buying tax-titles; that he should not have permitted a title against the company; that he did not buy the title under any arrangement whatever with the company; that he did not receive anything from the company when he quit-claimed to it.
On cross-examination witness testified that at the time of the purchase of this tax-title he had no contract or arrangement with the Connecticut Mutual Life Insurance Company with regard to the purchase of this tax-title and no understanding with them about it; that the company knew nothing about it, and that the company never made any ■objection to his obtaining or holding title under the tax deed; that after he had conveyed to the company he told the president that he had done so.
On redirect examination witness testified that he did not consult with the company in each particular case of a tax-title.
N ovember 29, 1878, the Insurance Company leased a portion "of the premises to Hebert, who took possession, and this suit was subsequently brought. On the trial the controversy appears to have centered entirely on the tax purchase by Mr. Moore, and the effect of the subsequent conveyance by Mr. Moore to the Insurance Company.
The following instruction, requested by the defendant, the circuit judge refused to give :
“ The tax deed offered in evidence by the defendants is prima facie evidence of title in fee to the premises in question in 'William A. Moore, and the Insurance Company, as the grantee of said Moore, is entitled to assert all the title which the tax deed vested in said Moore.”
The following, requested by the plaintiff, was given:
“ If the jury find that at the time William A. Moore bid the premises off at tax sale, and took the tax deed, he was acting as the agent of the Connecticut Mutual Life Insurance Company, in reference to its mortgage interest in the premises, and in reference to its foreclosure by said company, and really acquired said tax bid and tax deed for the protection of the interests of said company, such tax deed vested no title or interest in Mr. Moore or in the defendants which will prevent the recovery by the plaintiff in this action.”
The jury returned a verdict for the plaintiff.
Tlie defendants, now plaintiffs in error, insist that the circuit judge wholly misapprehended the law; and that he erred both in holding that Bulte was at liberty to rely upon Moore’s agency for the Insurance Company by precluding his making a purchase and acquiring a title in his own name at the tax 'sale, and also in ruling that the Insurance Company could not acquire and hold a tax-title as against a prior mortgagee.
We shall spend no time on a discussion of Mr. Moore’s-relations to the Insurance Company, because we think his deed to the company and the acceptance thereof was a recognition of his agency in the purchase and renders immaterial the question what would otherwise have been the rights of Bulte. It will therefore be assumed in whatever we shall say of the case, that the question of the right of a sepond mortgagee to rely upon a tax purchase as against the right of the first mortgagee to recover in ejectment after foreclosure, is the question, and the only question in the case.
It is conceded that there are a great many cases in which parties standing in particular relations to the land, or to the owner or other person interested therein, are not suffered to-acquire tax-titles and rely upon them as against other claimants. Some of those are very plain, and it is quite unneces-. sary to dp more than name them. A tenant for example, who has covenanted to pay the taxes cannot be suffered to-neglect this duty, and then acquire a tax-title which shall cut off the title o£ his landlord. Neither shall the purchaser in possession under an executory contract be allowed to cut off the rights of his vendor by a like purchase, nor a mortgagor that of his mortgagee. A tax purchase made while such a relation exists is made in wrong; and the law in circumvention of dishonesty will conclusively presume that it was made in the performance of duty, and not. in requdiation of it; But other cases are not so plain. A tenant in common, for example, who finds his interest taxed inseparably with that of his co-tenant, may advance plausible reasons why, if he buys the whole land at the tax sale, he should be at liberty to claim title to the whole. His duty is limited to paying the tax on his share only; and if the co-tenant neglect to pay for himself, what right has he to demand that those who happen to have interest with him in the land shall be excluded from the number who may take advantage of his default ? The reason usually assigned for not permitting such a purchase is that the sale is based in part upon the purchaser’s own default, but it is also true that in a great proportion of such cases the parties stand to each other in confidential relations; and it may without much violence to the facts be assumed that they do so in all cases. No doubt the rule that precludes their speculating in each other’s defaults is grounded on sound policy. Still the purchaser does not lose what he pays beyond what is needful for discharging the lien upon his own interest; his co-tenants must refund to him such portion as is found to be just: Baker v. Whiting 3 Sumn. 476; Burhans v. Van Zandt 7 N. Y. 523; Phelan v. Boylan 25 Wis. 679; Chickering v. Faile 38 Ill. 342; Anson v. Anson 20 Iowa 55. The purchaser is trustee for the others, but they must repay their proportion of his advances: Lloyd v. Lynch 28 Penn. St. 419; Maul v. Rider, 51 Penn. St. 377; Flinn v. McKinley 44 Iowa 68.
But it is possible for parties to have antagonistic claims in lands, which place them neither actually nor constructively in confidential relations. In some such cases no doubt either is at liberty to strengthen his title as against the other by a tax purchase: Blackwood v. Van Vleit 30 Mich. 118. It is claimed that a second mortgagee occupies this position in respect to the first mortgagee, and if the latter does not protect his lien by payment of the taxes or by attending as purchaser at the tax sales, the former is under no obligation to do so for him. And it is no doubt true that he is under no obligation to protect the first mortgagee; but the real point in controversy is, whether, if the second mortgagee pay the taxes or bid off the land, the payment or purchase will not ipso facto constitute a protection ?
It certainly cannot be said that the second mortgagee owes any duty to the first mortgagee to protect his lien as against tax sales. Neither on the other hand does the first mortgagee owe any such duty to the second mortgagee, or to the owner. To the State each one of the three may be said to owe the duty to pay the taxes; and the State will sell the interest of all if none of the three shall pay. As between themselves, the primary duty is upon the mortgagor; but if he makes default, either of the mortgagees may pay, and one of the two must do so or the land will be sold and his lien extinguished. But in such cases, where each has the same right, payment by one is allowed to increase the amount of his incumbrance; for in no other way could he have security for its repayment by the mortgagor, who ought to protect the security he has given. When therefore each mortgagee has the same interest in making payment of the tax, and the same right to do so, and the same means of compelling repayment, it may well be held that a purchase by one shall not be suffered to cut off the right of the other, because it is based as much upon his own default as upon that of a party whose lien he seeks to extinguish. It is as just and as politic here as it is in the case of tenants in common, to- hold that the purchase is only a payment of the tax.
But in equity this can only be so when the party paying is in position to add the amount of the payment to the amount of his lien. It is never held that any other person can have the benefit of the mortgagee’s payment or purchase without being under any obligation to repay him the cost. Horton v. Ingersoll 13 Mich. 409, on which much reliance is placed, is far from so holding. In that case the owner of an interest in the equity of redemption was also owner of a tax-title. By reason of his tax title he denied the right of the mortgagee to make him defendant to a bill to foreclose. The court decided he was a proper party by reason of his interest in the equity of redemption; and there was also a dictum that the tax title he had purchased “simply inures to the protection, not the destruction, of the regular title.” The dictum is sound, but it falls short of the necessities of this case.
In this case the second mortgagee had acquired a tax-title, wliicli became absolute in October though the deed was not obtained until December 16, 1878. This by the express provisions of the statute was prima faoie a valid title. No doubt the first mortgagee had a right to insist that the purchase was in part for his protection, and to treat it as a payment merely ; but this was at his option, and it stood as a good purchase as to all the world except as to those who might have equities in respect to it, and who should see fit in proper mode and by the observance of suitable conditions, to assert their equities. And one fundamental condition in every such case must be, that the party claiming the benefit of the purchase shall do what is equitable in respect to it.
Bulte acquired his title December 15, 1878. On the supposition, apparently, that his foreclosure had extinguished both the Insurance Company mortgage and the tax purchase, and that the tax deed was wholly inoperative as against him, Birlte brought ejectment, without tendering any repayment of the tax or of any part thereof, but leaving the whole to be borne by the Insurance Company as a total loss. Is there any equity in this ? Can a principle of law which purports to be an equitable principle support his suit ? "Why should the Insurance Company be charged as trustee for Bulte, and required to bear the burden of the trust for a party who takes all the benefits and assumes no part of the obligations %
There is no answer to such questions. Sometimes a party by the force of circumstances is placed in a position where another may take the profit of his losses without being under obligation to make return; but the adjustment of legal rights on equitable principles is never meant to work such a result. The foreclosure of Bulte’s mortgage no doubt would cut off that of the Insurance Company, but when he claims anything more than that, it is necessary to look about and see how and why he becomes entitled to it. The tax purchase was made before the sale on his foreclosure, but Moore, not the Insurance Company, was purchaser, and whatever the equities between him and the company, it cannot be pretended that Moore was obliged to resign to the company, and the company to take and pay for the tax title in order that Bulte might obtain the benefit of it for nothing, and compel the company to add the cost to the loss of its mortgage. Moreover the purchase in Moore’s hands was subject to redemption until October, 1878, by either Mack or Bulte, and it was only after time for redemption had expired that the sum paid at the tax sale could be deemed paid by the Insurance Company in satisfaction of the tax. Had redemption been made by any one, the effect upon the rights of parties respectively would be determined by the relation of the party redeeming to the title and the interests of others.
Had Bulte. redeemed, the question now presented would not have arisen. He did not redeem his purchase on foreclosure and at the time his title became absolute the tax-title had become perfected. This title would relate back to the tax purchase in October, 1877, for all purposes of effecting-substantial justice, but the fiction of relation will not be suffered to work a wrong: Blackwood v. Brown, 29 Mich. 483; Flint & Pere Marquette Railway Co. v. Gordon 41 Mich. 420. If Bulte took the land discharged of the Insurance Company mortgage he had no shadow of claim to take it discharged of the tax purchase also. If the tax purchase attached itself to the Insurance Company mortgage as so much money, it would leave the mortgage, at least to that extent, unextinguished by the Bulte foreclosure, and if Bulte repudiated the tax purchase, and refused to recognize it as having been made for the common benefit, and made no offer to assume the expense, it would stand as a tax purchase against him. And at law, the tax deed giving a prvmafaeie title, would constitute a perfect defense to the action of ejectment.
This disposes of the present suit. It seems proper to say, however, in view of all the facts, that there seems to be no difficulty in each party preserving all his equities. If Bulte claims that the tax purchase was made for the common protection of all interests in the estate, and proposes to accept all-the burdens and responsibilities that flow from that fact, the Insurance Company cannot insist upon the tax-title as a title against him. But he will make the claim for the first time after his mortgage has been foreclosed, and the claim itself 'will be an admission that when the Insurance Company took the tax purchase ofE the hands of Moore, the amount paid went to increase its mortgage, and left it then a living and unextingnislied lien. If it was cut off, there was nothing to which to add the cost of the tax purchase, and moreover if it was cut off, the Insurance Company was no longer mortgagee, and there was no equity entitling Bulte to insist that the purchase of the tax-title was a payment of the tax. Bulte’s position therefore necessitates the admission that the equity of redemption is still in the Insurance Company; for if this is denied, there is nothing to preclude the Insurance Company buying and holding a tax-title, as any mere stranger to the title might do. The inability to do so springs from the relation of mortgagee exclusively.
The judgment must be reversed with costs and a new trial ordered.
Mabston, C. J. and Graves, J. concurred.
Campbell, J. did not sit in this case. | [
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] |
Campbell, J.
The bill in this cause was filed to foreclose a mortgage given by Warner to Ransom Shelden and Columbus C. Douglass to secure them as his bondsmen, they having with others become his sureties as receiver of the United States land office at Marquette in the Upper Peninsula. The bonds were executed in 1859. The mortgage was made in April, 1861, and recorded in Houghton county May 16, 1861, and in Chippewa county, September 30,1863. The bill was filed originally by Ransom Shelden and the executors of Douglass, and now stands in the names of the personal representatives of Shelden also, he being deceased. It was filed in 1877 and regularly taken as confessed. Subsequently it was agreed that the default might be opened» and an answer put in on certain conditions which need not be recited.
The defendants, except Warner, all are brought in by the ordinary allegations in the bill applicable to subsequent purchasers. They defend on the ground that before the mortgage was recorded in Chippewa county, where their purchases lie, Ryan had purchased the premises and his deed was recorded in January, 1863; and the rest claim through Ryan as bona fide purchasers. Upon the testimony there is no plausible ground for holding Ryan to have been such a purchaser. But there is a contest concerning the date and record of his deed, under which the other parties insist that they are protected by priority of record, whatever may have been Ryan’s equities.
The court below dismissed the bill as against all but Warner, giving costs to all but Ryan, and retained the case as against Warner.
Some preliminary questions first demand attention. It is objected that tbe suit is barred by lapse of time. There is nothing in this objection. Whether treated as a mortgage of indemnity, or as one of payment, less than twenty years had expired before the bill was filed. Michigan Insurance Co. v. Brown 11 Mich. 265; Powell v. Smith 30 Mich. 451.
It is further objected that the bill is not properly framed to enable complainants to attack conveyances depending upon a record made earlier than the record of the mortgage, and therefore presumptively entitled to preference, as held in Wurcherer v. Hewitt 10 Mich. 453 and Summers v. Bromley 28 Mich. 125.
The controversy here'is not against a deed to Ryan first recorded. If complainants are right on the facts they claim that Ryan’s deed was not first recorded in fact. If so, and if when their mortgage was recorded he had no deed on record, they were not concerned with his good or bad faith, and were not required to investigate the merits of subsequent interests. James v. Brown 11 Mich. 25; Cooper v. Bigly 13 Mich. 463. Their mortgage being first in date and first recorded, would entitle them to treat all subsequent rights as subordinate, and there would be no occasion to litigate them.
It is also claimed that the consideration in the mortgage is variant from the bill. This objection is also unfounded. The purpose of a mortgage is found in its condition and not in the formal consideration set out in its introduction. The condition of this mortgage is distinctly referred to the official bond and made to secure Shelden and Douglass for signing it. The failure in the bill to state correctly and exactly the date of the appointment is of no consequence as it correctly sets out the mortgage itself and the breach, and the testimony makes out a complete cause of action.
The only controversy of real importance is upon the date and record of the deed to Ryan, under whom it seems to be conceded — although if not conceded it would be questionable whether the defense could be regarded as made out — that Trempe, Neweombe and Smith are bona fide purchasers for value.
The deed from Warner to Ryan of the premises in dispute purports to bear date and to have been acknowledged January 6, 1863, witnessed by Oran Lyon, the acknowledging officer, and by Fabian Launderville, who made his mark, and recorded on the day of its date by Kyan, who was himself register of deeds, in book 3 of Deeds, on pages 463 and 464.
It is stated that Ryan kept no entry book of deeds, to show the date of their reception and its order, as required by § 4227 of the Compiled Laws. The entry in this book is the only thing which operates as a constructive record, until the deeds are actually spread upon the records at large.
Mr. Ryan testifies quite positively that the deed was made and recorded as it purports to have been. Warner and the subscribing witnesses testify that it was not made at all until November 4th, 1863, and another witness who searched the record books testifies that the deed was not actually recorded until some time later. Without discussing the testimony at large, we have no doubt whatever that the deed was not made until November 4th, 1863, and we are satisfied that both deed and record are antedated. The witnesses being positive on both sides, it is only worth while to give an outline of the facts which complainants have introduced. Warner in November was in Canada, at the Sault, and was there to avoid legal process which might have put him under arrest. There is no doubt, and Ryan himself testifies that on this day, late in the evening, Warner came across the river and executed some documents, one of which was witnessed and acknowledged before Launderville and Lyon, and another witnessed by Launderville. One of those documents appears among the exhibits, and presents the remarkable coincidence, that it is written with the same poor and yellowish ink as the deed, and signed with the same blue ink by Warner, and contains a filling up of date, and writing of Launderville’s name in a third kind of ink, quite black, and resembling the date of Ryan’s deed. That the same diversities of ink should be found in papers executed at intervals of nine months, and that they should both be witnessed at that interval by the same witnesses, one of whom could not write his name, would be remarkable if both were genuine. The recollections of the disinterested witnesses of the peculiar circumstances of the transaction in November are clear and positive, and to our minds satisfactory. We need not discuss any nice theories as to the amount of proof which should produce conviction. ¥e have no doubts on the subject.
If Byan’s'deed had been made and recorded in fact before complainant’s mortgage was recorded, then it would become material to inquire into the good faith of the purchasers from Byan, and, as this is not questioned, they would probably under the statutes be protected. But no rights originating under a conveyance to Byan which was neither made nor recorded until after complainants’ mortgage obtained a statutory preference, can prevail against it legally or equitably. Their equities are not superior to complainants’ equities, and are subsequent in time.
Complainants are entitled therefore to treat them as subsequent purchasers and to foreclose on that basis. The decree dismissing the bill as against these defendants must be reversed with costs against them, and the cause remanded for the entry of a proper decree on the basis of such priority.
The other Justices concurred. | [
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Campbell, J.
Soule sued Hough, for trespass, including an assault on his person, and the use of force in attempting to expel plaintiff and his family from their dwelling, and various acts of annoyance connected with the conduct in question.
Plaintiff was in possession under a party claiming title, and who actually owned it with a right of possession, unless cut off by foreclosure proceedings.
The testimony tended to show, and there is nothing contradicting it, that Hough, having got into the outer kitchen of Soule’s house through an open door, when no one was in the room, maintained possession of that, and attempted by force to get into the other part of the house, and failing in this, boarded up the premises and used violence and.threatened to kill Soule if he attempted to remove the obstructions.
The court in effect changed the jury that the entry into the kitchen gave Hough such possession as justified him, if having title, in boarding up the rest of the house, so as to keep it from being habitable, and that the assault and battery, if committed in an attempt in a reasonable and moderate manner to keep plaintiff from knocking off the boards was not actionable.
The doctrine that a party may make entry and hold possession of a part of premises, and thereby get constructive possession of the rest, so as to turn the tenant out if he can do it peaceably, though with some force, cannot be applicable to such a case as this. The house, so long as occupied by a tenant, is an entirety, and the wholesome rule of law which forbids forcible entry would be of very little use, if by getting a foothold in a single room or outbuilding, an intruder, with or without title, could be held to be in possession of the principal structure to the exclusion of the family in actual occupancy. Under the general rules of law the possession of the principal covers the incident, and possession of the incident does not control but is subordinate. A dwelling is too important a refuge to be destroyed by any such indirection. The case is in its main features not unlike though much worse than Seitz v. Miles 16 Mich. 456; and the testimony indicates a great outrage. The jury could not under the charge have regarded the chief elements of damage.
The foreclosure proceedings, which, although pertinent, could not if regular have justified defendant’s conduct, are claimed to have been invalid for any such purpose, or for any purpose. . They were begun on the 16th of June, 1859, by James P. Scott against Lucy Piquette, Francis Piquette, and George Pedfield, in the circuit court for the county of Ottawa. Lucy Piquette was owner of the land mortgaged. The decree was made by default against ber and her husband on publication, and not on service of process. The sale was made and report filed in August, 1860. No order of confirmation appears in the record, but it is recited as an order entered in the common-rule book in January, 1880, after this suit was brought, and only a few days before trial. We shall make no remark upon this, as possibly it is an error, and the case will not require it.
On the 16th of June, 1859, a subpoena was issued returnable on the 29th. On the 25th of June, which was less than ten daj^s from its issue, and when it could not have been made legally returnable (Rule 9), the sheriff of Ottawa county made return on oath that he had served the writ on Redfield, but was unable to find the other defendants, and was informed and believed they did not reside in this State.
On June 30, 1859, complainant made an affidavit before a justice of the peace, setting out “that Lucy Piquette and Francis Piquette are residents of this State; that subpoena for their appearance has been issued in the above entitled cause, returnable on the 29th day of June instant, and that the same could not be served on the said Lucy Piquette and Francis Piquette by reason of their absence from the State of Michigan.” On this, an order of publication was made by a circuit court commissioner.
The statute which is relied on to sustain this proceeding is section 5116 of the Compiled Laws, which authorizes such an order “ when the defendant is a resident of this State, upon proof by affidavit that the process for his appearance has been duly issued, and that the same could not be served by reason of his absence from or concealment within this State, or by reason of his continued absence from his place of residence.”
The statute is very clear that the cause for issuing the order of publication must be made out by jproof, and this must come from some one who testifies on his own responsibility. And, according to the well-recognized rules of procedure, the process must be issued and diligent efforts made to serve it during its entire time allowed for service, and there must be a responsible showing why it was not served.
In this case the process was returned four days before its return-day, and the officer makes no showing of diligence before this, and no one makes any showing of diligence at all afterwards. There is a conflict of fact between the return and affidavit as to the cause of non-service. It was not possible that the complainant, who had no part in the service, could swear of his own knowledge to any diligence, and in the case of residents of the State, the issue and return of process is imperative, and here there was no lawful return of not found. It is not due diligence to make no effort to serve a writ so long as service can be lawfully made.
The rule of diligence in cases where the disability must be extended to the whole State and not a county was referred to in Merrill v. Montgomery 25 Mich. 78. The statute was never designed to encourage getting constructive service on a merely temporary absence, and the affidavit should leave nothing ambiguous as to the diligence used to find the parties. As a matter of fact there can usually be no difficulty generally in finding residents within a reasonable time ; and the court ought to have a sufficiently responsible showing to guide it in determining whether a case is fully made out. The English statute, which was intended chiefly, if not entirely, to reach residents who were absent, was construed in Burton v. Maloon, Barnardiston p. 401, as requiring a positive showing, and the New York court of chancery in Evarts v. Becker 8 Paige 506, is to the same effect.
We think the present showing cannot be upheld on any ground as sufficient.
The judgment must be reversed with costs and a new trial granted.
Graves, J. and Marston, C. J. concurred. | [
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Cooley, J.
As we view this case the questions which arise upon the record are almost exclusively questions of fact.
Mrs. Kanouse was plaintiff in the court below, and sought to recover on the common counts for money had and received by Hosford from the estate of her father to her use. Her case was that some thirty-five years before suit was brought, and shortly before his death, her father made an arrangement with one Richardson whereby what property the father had was assigned and transferred to Richardson in consideration of the agreement of Richardson that he would take care of the assignor’s three minor daughters of whom plaintiff was one ; that Richardson for a time undertook to carry out his agreement, but in 1851 transferred the trust to Hosford, and paid him for the children one hundred and fifty dollars; Hosford agreeing to pay to each of them the sum of fifty dollars on her coming of age; that the facts were concealed from the children until recently, and that plaintiff brought suit as soon as they came to her knowledge.
In the circuit court the plaintiff recovered judgment, and the defendant insists that there was no evidence to warrant it.
We are of opinion that the facts above recited make out a case if there is evidence which warrants their being found. The receipt of money by Hosford from Richardson under the circumstances detailed was equivalent to a receipt from the father’s estate, and might properly be described as a receipt from the estate in the pleadings. ¥e are also of opinion that there was some evidence to go to the jury in support of every material fact.
Many rulings of the circuit judge were excepted to, but the most of them were fairly within the limits of judicial discretion, and no one seems to us clearly erroneous.
The judgment will therefore be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
The defendant in error, having obtained judgment against a railroad company for several hundred dollars, made an assignment of it to his wife, who received the money, and after her death he preferred a claim against her estate therefor as money received to his use. The commissioners allowed the claim and the administrator appealed. On the trial in the circuit court the claimant put these papers in evidence:
“ Hillsdale, Mich., May 12, A. D. 1813.
“ Deceived of A. Dickerman seven hundred and six dollars and twenty-one cents in full for money due me upon judgment of Isaac Jones against the Detroit,-Hillsdale & Indiana Bailroad Company. Sarah Jones.”
“I acknowledge satisfaction of the above amount, and ratify the action of my wife .having heretofore sold and assigned said judgment to her. Isaac. Jones.”
The money here specified is the same sought to be recovered. In addition tp the evidence supplied by the papers the claimant was allowed to show that on two or three occasions his wife said that the money was assigned to her because he would waste it in drink, and she could take better care of it than he could. On the part of the administrator it was shown among other things that she expressly denied that he had any interest, and told him she owed him nothing.
The circuit judge refused to direct a finding for the plaintiff in error, and submitted the case on the assumption that a verdict might be given for the claimant on the theory that the money was received and held by Mrs. Jones on a trust in his favor, and the jury allowed him $191.41. "We cannot assent to this view of the case. ■
The husband and wife in respect to this transaction were in law one person, unless the money was a gift, or was a pay ment made to her on account of a present or prior consideration. If the relation was that first mentioned it was not possible for an asswrrvpsit to arise from one to the other. Jenne v. Marble 37 Mich. 319. If it was a case of gift, or a case of payment made on a concurrent or antecedent consideration, then there was nothing to give rise to an asszmvpsit from the wife to the husband. The money belonged to her unconditionally. The transaction must have borne one of these characters and there was no basis for implying a cause of action on any theory of trusts.
The judgment must be reversed with costs and a new trial granted.
Marston, C. J. and Campbell, J. concurred.
Cooley, J. did not sit in- this case. | [
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Campbell, J.
Complainant filed his bill to foreclose a second mortgage made by defendant Patterson to James S. Eastman and another, and ultimately assigned to him. A previous mortgage made to one Jennings was foreclosed by advertisement.
Before this foreclosure became absolute Patterson conveyed the premises, and the remainder of the tract of which they formed a part, to Alexander Pindlater, by deed made expressly subject to both of the mortgages. Before the time of redemption ran out, Findlater informed Jennings of his desire to pay the mortgage and told him he wanted Jennings to quit-claim to his wife, which Jennings did, about four months before the redemption expired. Mrs. Pindlater now claims that she holds in her own right under that forclosure as unredeemed, and that the second mortgage was cut off.
We agree with the court below that her name was only used as a cover for a transaction in which her husband was the real party in interest. The transaction was understood by Jennings as substantially a redemption, and had he not so understood it he would not probably have made the conveyance in the form he adopted. We do not think any equity is made out for Mrs. Findlater, and we do not think the place was bought with her money.
The decree must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
Fisk brought this action on the 27th of February, 1878, to recover under the common counts against Gates on a promissory note of the following tenor :
“■300. Chelsea, Nov. 27, 1868.
One day after date we promise to pay Hiram Fisk, or
bearer, three hundred dollars, at -, value received,
with interest at 10 per cent.
OOKGDOÍT & GATES.”
There were indorsements of six payments; $30 November 25, 1869 ; $30 November 27, 1870 ; $30 November 27, 1871; $30 November 27, 1872; $30 November 27; 1873, and $30 November 27, 1874. The defense relied on was the statute of limitations. The trial was before a iury, and the circuit judge, entertaining doubt respecting the rule of law, directed a verdict for the plaintiff.
Some further explanation is necessary. On the 27th of November, 1868, and for some time prior thereto, the plaintiff in error and one Albert Congdon were merchandising at Chelsea as copartners under the name of “Congdon & Gates” and the note in suit was duly given by the firm to the defendant in error. February 1, 1870, the partnership was dissolved by mutual agreement. It was arranged that Cong" don should settle up the business and pay the debts and for the time being he continued merchandising as successor of the firm at the same place. The payments indorsed were all made by him to Fisk and there was abundant evidence direct and circumstantial for the judgment of the jury as to whether Fisk did not become aware of the dissolution prior to the payment of November, 1872. June 27,1877, Congdon died. The material question is whether, supposing Fisk to have become aware that the firm had been dissolved, the payment to him by Congdon in November, 1872, operated to charge Gates with liability on the note for the ensuing six years; because if it did not, the action, as counsel admit, cannot be maintained.
The case has been presented with marked ability, and the rulings of many courts as well as the views of eminent text-writers have been critically examined and compared.
The authorities are irreconcilably at variance and it would be a bootless task to attempt their classification. There is much eminent opinion that on general principles, a payment by one partner, if there be nothing more, after dissolution and before any bar has attached, will not affect the right of another partner to plead the statute. But the question is not one of practical importance in this State in case the provision of our statute (Comp. L. § 7165) is applicable and the counsel on each side assume that the event of this suit depends on whether it is applicable or not. The provision referred to is as follows: “ If there are two or more joint contractors, or joint executors or administrators of any contractor, no one of them shall lose the benefit of the provisions of this chapter, so as to be chargeable by reason only of any payment made by any other or others of them.”
The counsel for the defendant in error has dwelt with much ingenuity on the relations which obtain in point of law between the members of a dissolved firm in respect to firm contracts which remain binding on them after dissolution : and has proceeded to contrast those relations with such as exist in the case of parties who have become joint debtors through other than partnership transactions, and to point out some material distinctions, and the existence of these distinctions is made use of to found an inference that persons under mere partnership obligations are not after voluntary dissolution either joint debtors or joint contractors, and hence are not within the meaning of the statute above quoted.
Is not this reasoning calculated to mislead ? That important distinctions obtain there is no doubt. But the bare fact that differences exist cannot exclude the partnership obligations from the category of joint contracts unless they show that an obligation of that kind lacks some quality which is inherently indispensable to a joint contract, or possesses some quality which cannot in the nature of things co-exist with one. But nothing of that kind appears.
The partnership name represents the constituents of the firm, and when it is rightly pledged the respective partners are jointly bound. Condee and Scribner v. Clark and Brown 2 Mich. 255.
It is entirely consistent with reason that joint contracts should arise under various producing causes and be distinguished from each other by particular incidents of more or less importance. The grounds of distinction may supply criteria for proper and convenient classification under the common head, but will not justify the rejection of any form from the general group to which its nature assigns it. The contract of the obliges in a bond, the undertaking of the ordinary co-makers of a promissory nóte, and the agreement by a partnership which is left unperformed on the occurrence of a voluntary dissolution, are distinguishable in many respects which are quite material; yet they possess certain very substantial properties in common, and all fall under the denomination of joint contractors.
Without extending these observations it remains to say that in Peirce v. Tobey (5 Met. 168) the Supreme Court of Massachusetts ruled expressly that their statute, which is the same as our own (Faulkner v. Bailey 123 Mass. 588) was applicable to partnership contracts remaining unperformed after voluntary dissolution, and very recently the Vice-Chancellor of England has decided in the same way on a statute which, as to this question, is not distinguishable. Watson v. Woodman L. R. 20 Eq. Cases 721: 15 Eng. 572.
The case has been argued on the assumption on both sides that, to constitute a defense for Gates under the statute, it should appear that Fisk at the time of receiving the payment, 1872, had notice or knowledge of the fact that a dissolution had taken place, and there is no question before the court on that subject. The view in which counsel have thus concurred has respectable support. Sage v. Ensign 2 Allen 215 ; Tappan v. Kimball 30 N. H. 136.
As already mentioned, there was evidence in regard to notice for the jury to consider; but the fact has not been found and remains to be settled by the proper tribunal of original jurisdiction. It is not the province of this court to weigh evidence and ascertain the facts as a ground of final judgment here. Assuming that Eisk knew or had reason to believe that a dissolution had taken place, it follows that Gates is entitled to the benefit of the statute.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Marston, C. J.
It appears that "Warren L. Barber held two chattel mortgages given by the relator; that he placed them in the hands of Milton F. Marsh, a constable, for collection; that Marsh took possession of the property described in said mortgages thereunder; that before sale of the property under the mortgages Casper, the mortgagor, brought replevin against the constable for and obtained possession of the property; that after the commencement of such action the defendant therein, the constable, handed over the replevin papers served upon him, to his principal, Barber the mortgagee, to have such suit defended; that thereupon Barber employed attorneys who appeared for defendant Marsh in such replevin suit, and said cause proceeded to issue; that thereafter Marsh the defendant and Casper the plaintiff:, the latter by his attorneys, entered into a written stipulation that the replevin suit be dismissed and discontinued without judgment for the return or value of the property and without costs to either party. No bond of indemnity was asked for by the constable, but after the stipulation referred to had been entered into, one was offered him by the mortgagee Barber.
All these facts having been shown to the circuit court where said replevin suit was pending, that court proceeded with the cause and judgment was rendered in favor of the defendant therein, according to his special interest in the property under the mortgages. Relator now asks that a mandamus issue directing the circuit judge to set aside the judgment so rendered.
The relator cannot have the relief prayed for. The defendant was a mere nominal party, made so because of his actual possession of the property, but known by all parties to be held by him for and as the agent of the mortgagee, and for the sole purpose of foreclosing the mortgages.
The effect of the stipulation if carried out, would be to leave the property in the hands of the mortgagor, release the sureties on the replevin bond, and if the property was beyond reach, leave the real party in interest, the mortgagee, without adequate remedy. A mere nominal defendant should not thus be permitted to prejudice the rights of the real party in interest, and whose rights he represents, at least until the person interested had been given an oportunity and refused to indemnify him.
The writ must be denied with costs.
The other Justices concurred. | [
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Campbell, J.
The bill in this cause was filed in the county of Delta, to foreclose certain mortgages. The bill was filed June 19, 1877, and the defendant Booth was advertised as a non-resident, and never served with process. His default was entered and a final decree rendered. The bill contains distinct averments, showing the title of the lands to have become regularly vested in Booth by record conveyance.
In March, 1880, the decree not having been carried out by sale, Booth filed his petition and noticed a motion for leave to appear. The complainant was allowed to introduce his own affidavit, to the effect that Booth had told him that he had no personal interest in the premises, and had only held them for the benefit of another defendant, and setting up various dealings and statements which were intended to show the want of equity in Booth’s claim to defend. Booth’s petition was accompanied by some affidavits indicating his position, but the circuit court refused to allow him to come in. From that order he appeals.
By section 5127 of the Compiled Laws, it is provided that, except in divorce cases, any defendant brought in by publication may petition to be heard, and “the party so petitioning shall be admitted to answer the complainant’s bill, upon paying or securing to be paid such costs as the court shall adjudge.”
This provision is positive and unqualified, and the right is absolute. The court has no power to decide defendant’s equities on affidavit, or in any way except in a hearing on the merits. The title of defendant is necessarily put into the controversy by the bill. In the present case, complainant has gone so far as to aver its precise character. It is only because of an averment that he had or claimed title, that complainant could be justified in impleading him. If having title he should be left out, the foreclosure would fail.
If complainant is confident that Booth has no interest, there is nothing to prevent his discharging him from the suit. But so long as he is kept on the record he has a right to be heard.
The complainant undertook by way of enhancing the conditions of appearance to swear to a series of outlays and expenses amounting to $1915. Of these only $15 was for expenses of witnesses, and $1700 for trips of himself and others to various places, which were apparently conducted on a very liberal basis. A further item was $200 for sundry expenses not specified.
Such charges have nothing to do with the legitimate costs in a cause and cannot be considered. It is difficult to imagine how the costs in a foreclosure suit can involve any large additional expense on account of this defendant. We shall allow him to come in on condition of paying fifty dollars. But as he has prevailed on this appeal, we shall grant him the costs of this court to be set off, so that if less than fifty dollars, he may pay the balance in thirty days after notice of this order, and if more, he shall have execution therefor.
An order will be granted reversing that of the circuit court, and allowing him to come in and be heard in the foreclosure suit on these terms.
The other Justices concurred. | [
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] |
Cooley, J.
The purpose of the action in the court below* was to charge Beecher as partner with Williams for a bill of supplies purchased for the Biddle House in Detroit. The facts are all found by special verdict, and are few and simple. Beecher was owner of the Biddle House, and Williams, proposed in writing to “hire the use” of it from day to day, and open and keep it as a hotel. Beecher accepted his proposals and Williams went into the house and began business, and in the course of the business made this purchase. The proposals are set out in full in the special verdict.
The question is whether by accepting the proposals Beecher made himself a partner with Williams in the hotel business; and this is to be determined on the face of the writing itself. It is conceded that Beecher was never held out to the public as a partner, and that the bill of supplies was purchased on the sole credit of Williams and charged to him on the books of the plaintiffs below. The case, therefore, is in no way embarrassed by any questions of estoppel, for Beecher has done nothing and suffered nothing to be done which can preclude him from standing upon his exact legal rights as the contract fixed them.
Nor do we understand it to be claimed that the parties intended to form a partnership in the hotel business, or that they supposed they ha,d done so, .or that either has ever claimed as against the other the rights of a partner. It is perfectly clear that many things which are commonly incident to a partnership, these parties meant should be wholly excluded from their arrangement. Some of these were of primary importance. It is plain, for example, that Beecher did not understand that his credit was to be in any way involved in the business, or that he was to have any interest in the supplies that should be bought, or any privilege to decide upon them, or any ‘legal control whatever until proceeds were to be divided, or any liability to losses if losses were suffered. These are among the most common incidents to a partnership; and while some of them, and possibly all of them, may not be necessary incidents, yet the absence of all is very conclusive that the parties had no purpose whatever to form a partnership, or to give to each other the rights and powers, and subject each other to the obligations of partners. In general this should be conclusive. If parties intend no partnership the courts should give effect to their intent, unless somebody has been deceived by their acting or assuming to act as partners; and any such case must stand upon its peculiar facts, and upon special equities.
It is nevertheless possible for parties to intend no partner ship and yet to form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners. The law must declare what is the legal import of their agreements, and names go for nothing when the substance of the arrangement, shows them to be inapplicable.' But every doubtful case must be solved in favor of their intent; otherwise we should “ carry the doctrine of constructive partnership so far as to render it a trap to the unwary.” Kent, C. J., in Post v. Kimberly 9 Johns. 470, 504.
We have then a case in which the party it is sought to charge has not held himself out, or suffered himself to be held out as a partner either to the public at large or to the plaintiff, and has not intended to form that relation. He is not therefore a partner by estoppel nor by intent; and if he is one at all, it must be by construction of law.
What then are the inMoia of partnership in this case; the marks which force that construction upon the court irrespective of the intent of the parties; that in fact control their intent, and give to the parties bringing suit rights which they were not aware of when they sold the supplies ?
In the elaborate and able brief which has been presented in behalf of the defendants in error it is conceded that the fact that Beecher was to receive each day a sum “ equal to one-third of the gross receipts and gross earnings” for the day, would not necessarily make him a partner. What is claimed is that the fact is “ cogent evidence” that Beecher was to participate in the results of the business in a manner that indicated he was a principal in it, and was not receiving compensation for the use of property merely. The view of the law here suggested is undoubtedly correct. There may be a participation in the gross returns that would make the receiver a partner, and there may be one that would not. The question is in what capacity is participation had. Gross returns are not profits and may be large when there are no profits, but it cannot be predicated of either gross returns or profits that the right to participate is conclusive evidence of partnership. This is settled law both, in England and in this country at this time, as is fully shown by the authorities cited for the defendants in error. It was recognized in Hinman v. Littell 23 Mich. 484; and in New York, where the doctrine that participation in profits proves partnership has been adhered to most closely, it is admitted there are exceptions. Eager v. Crawford 76 N. Y. 97.
But we quite agree with counsel for defendants in error that no case ought to turn upon the unimportant and mere verbal distinction between the statement in the papers that Beecher was to have a sum “ equal to ” one-third of the gross receipts and gross earnings, and a statement that he was to have one-third of these receipts and earnings. It is perfectly manifest it was intended he should have one-third of them ; that they should be apportioned to him regularly and daily, and not that Williams was to appropriate the whole and pay a sum “ equal to ” Beecher’s proportion when it should be convenient. We can conceive of cases where the difference in phraseology might be important, because it might give some insight into the real intent and purpose of the parties, and throw light upon the question whether that which was to be received, was to be received as partner or only by way of compensation for something supplied to the other, but the intent in this case is too manifest to be put aside by any mere ingenuity in the use of words. Loomis v. Marshall 12 Conn. 69, 79.
In Cox v. Hickman 8 H. L. Cas. 268, 306, Lord Cranworth stated very clearly his views of what should be the test of partnership. “ It is often said,” he says, “ that the test, or one of the tests whether a person not ostensibly a partner, is nevertheless in contemplation of law a partner, is whether be is entitled to participate in the profits. This no doubt is in general a sufficiently accurate test; for a right to participate in profits affords cogent, often conclusive evidence, that the trade in which the profits have been made was carried on in paid for or on behalf of the person setting up such a claim. But the real ground of the liability is that the trade had been carried on by persons acting on his behalf. When that is the case, he is liable on the trade obligations, and entitled to its profits, or to a share of them. It is not strictly correct to say that his right to share in the profits makes him liable to the debts of the trade. The correct mode of stating the proposition is to say that the same thing which entitles him to the one makes him liable to the other, namely, the fact that the trade has been carried on in his behalf, i. e., that he stood in the relation of principal towards the persons acting ostensibly as the traders, by whom the liabilities have been incurred, and under whose management the profits have been made.” There is something understandable by the common mind in this test; there is nothing artificial or arbitrary about it; it falls in with reason and enables every man to know when he makes his business arrangements whether he runs the risk of extraordinary liabilities contracted without his consent or approval.
It is said, and we believe justly, in Bullen v. Sharp L. R. 1 C. B. 86, that the decision in Cox v. Hickman brought back the law of England to what it should be, and Mr. Baron Bramwell, referring to what was declared to be law in Waugh v. Carver 2 H. Bl. 235, expressed the hope “that this notion is overruled,” adding that it is “one which I believe has caused more injustice and mischief than any bad law in our books.” p. 128. It is certainly overruled very conclusively in Great Britain. Kilshaw v. Jukes 3 B. & S. 847; Shaw v. Gault 16 Irish C. L. R. 357; Holme v. Hammond L. R. 7 Exch. 218; Ex parte Delhasse 7 Ch. Div. 511. And though in New York the courts, hampered somewhat by early cases, have not felt themselves at liberty to adopt and follow the decision in Cox v. Hickman to the full extent, it would be easy to show that the American authorities in the main are in harmony with it. Indeed that is very well shown in Eastman v. Clark 53 N. H. 276, where the authorities are collated. It must be admitted, however, that the attempts at an application of the test to the complicated facts of particular cases have not been productive of harmonious results. A few cases may be mentioned which in their facts have a resemblance, more or less strong, to the one before us.
Champion v. Bostwick 18 Wend. 175, was a case where parties who were severally owners of horsey and stages on different parts of one stage line made an arrangement that the fares received by both should be divided between them in proportions agreed upon. This, was held to constitute them partners, so that a third person injured by the carelessness of a driver employed by one might bring suit for the negligence of all. But in the somewhat similar case of Eastman v. Clark 53 N. H. 276, the conclusion of partnership or no partnership, it was said, must be drawn as one of fact. “ The real and ultimate question,” says Snjith, J. _(p. 289), “in all cases like the present, is one of agency. Did the person sought to be charged stand in the relation of principal to the person contracting the debt ? Participation in the profits is not decisive of that question, ‘exeept so far as it is evidence of the relation of principal and agent between the persons taking the. profits and those actually carrying on the business.’ Whether such relation existed is a question of fact. * * * There is no sound foundation for an arbitrary rule of law requiring courts or juries to regard participation in the profits as a decisive test which will in all instances necessitate the conclusion that the participator is liable for the debts.”
In Farmers' Ins. Co. v. Ross 29 Ohio St. 429, it appeared that by arrangement one party furnished the ground and the material for making brick, and also the fuel, and another was at the expense of burning the. brick. The brick were then to be divided, the former receiving one-fourth and the latter three-fourths, and the latter was also to pay the former ten dollars on each one hundred thousand bricks. This was held to create a partnership, and Musier v. Trumpbour 5 Wend. 274, and Everitt v. Chapman 6 Conn. 347, were relied upon as authority.
The New York cases might support this decision, but the case of Loomis v. Marshall 12 Conn. 69, can hardly be considered in accord with it. The facts were these: B. had a cloth factory. A. agreed with him to furnish a full supply of wool for two years, B. to devote the factory for two years exclusively to manufacturing, and the net proceeds, after deducting the incidental expenses and costs of sale, were to be divided in the proportion of 55 per centum to A. and 45 per centum to B., and the cost of manufacture was to be shared in like proportion. This was held no partnership. Says Huntington, J.: “ This community of profit is the test to determine whether the contract be one of partnership; and to constitute it, a partner must not only share in the profits, but share in them as a principal; for the rule is now well established that a party who stipulates to receive a sum of money in ^proportion to a given quantum of the profits, as a reward for his labor, is not chargeable as a partner.” And of the share set off to B. he says it “is not expressed in terms to be for such compensation ; but this is its legal meaning.” pp. 77, 79. Moore v. Smith 19 Ala. 774; Bowman v. Bailey 10 Vt. 170, and Price v. Alexander 2 Greene (Ia.) 427, may be referred to for similar views.
One of Chief Justice' Gibson’s short but very lucid opinions is in point here. Between Bronson, a manufacturer, and Dunham, a country merchant, there was an agreement that the former should furnish wooden handles made to order to the latter, at a tariff of prices to be paid out of the store, on the proceeds of the handles; Bronson finding the labor ¡ nd stuff, and receiving a further compensation for skill and the rent of the store-house, in the form of a commission of fifty per centum on tlic net profits of the whole. It was sought to charge Dunham as a partner with Bronson for the price of raw material the latter had bought. Hpon these facts it is said: “ Now, it has been so often and so invariably ruled in England and America, that a commission on profits is not such an interest in the concern as constitutes partnership, that the point is at rest. What staggers the mind in this instance is the apparent shallowness of the distinction when it is considered that a commission of fifty per cent, is no more nor less than an equal division of the profits; but it must not be forgotten that the distinction is an arbitrary one, i est.ing on authority, not principle; and that, whatever be the proportion, the relation produced by a compensation in the form of a commission is in every instance the same. But by the terms of the contract Bronson and not Dunham was to procure and pay for the stuff ; and they were not to be partners in that part of the business. This provision I admit would be inoperative against strangers, if the parties had held themselves out to the public as partners, both in buying and selling; but assuming for the moment, that there was indeed a partnership in the handles when furnished, and in the store when stocked with goods, yet it is to be borne in mind that the handles as well as the store-goods, were to be put into the concern as separate contributions to the joint-stock; •and that, as the stuff for the handles was to be procured by Bronson it was consequently to be paid for by him, just as the store goods were to be procured and paid for by Dunham, having been purchased on separate account. There may be a partnership for selling and not for buying; or for buying ■and not for selling; or for both buying and selling, which is the most usual: as if several put separate quantities of wheat into a common stock to be ground into flour and sold on joint account; or agree to buy jointly and divide the article when bought; or agree to buy and sell on joint account. In the first case each would be liable for his own purchases only; but in the second and third cases, each would be liable for the whole. Now if there were any partnership in this instance it would be of the first class; and in any view of the case the defendant would not be liable.” Dunham v. Rogers 1 Penn. St. 255, 262.
Not dissimilar to this is the case of Denny v. Cabot 6 Met. 82, which was also a case in which one party supplied the raw material and another manufactured it, and was to i-eceive one-third part of the net profits. This proportion, it was found, was to be received by the manufacturer only as a compensation for his labor and services; and it was held perfectly competent to provide for making compensation by such a standard without constituting a partnership. Perrine v. Hankinson 11 N. J. 181, is relied upon as authority, among other cases. The same doctrine was reiterated in Holmes v. Old Colony R. R. Co. 5 Gray 58; Bradley v. White 10 Met. 303; and by Day, J., in a careful opinion in Harvey v. Childs 28 Ohio St. 319, already referred to.
It is needless to cite other cases. They cannot all be reconciled, but enough are cited to show that in so far as the-notion ever took hold of the judicial mind that the question of partnership or no partnership was to be settled by arbitrary tests it was erroneous and mischievous, and the proper-corrective has been applied. Except when one allows the public or individual dealers to be deceived by the appearances, of partnership when none exists, he is never to be charged as a partner unless by contract and with intent he has formed a relation in which the elements of partnership are to be-found. And what are these ? At the very least the following : Community of interest in some lawful commerce or-business, for the conduct of which the parties are mutually principals of and agents for each other, with general powers-within the scope of the business, which powers however by-agreement between the parties themselves may be restricted at option, to the extent even of making one the sole agent, of the others and of the business.
In this case we have the lawful commerce or business, namely, the keeping of the hotel. We have also in some-sense a community of interest in the proceeds of the business,. though these are so divided that all the profits and all the losses are to be received and borne by one only. But where in the mutual arrangement does it appear that either of the-parties clothed the other with an agency to act on his behalf in this business? We speak now of intent merely, and not. of any arbitrary implication of intent which the law, according to some authorities, may raise irrespective of and perhaps-contrary to the intent. Could Beecher buy for the business-a dollar’s worth of provisions ? Could he hire a porter or a waiter ? Could he discharge one ? Could he say the house shall be kept for fastidious guests exclusively and charges-made in proportion to what they demand, or on the other-hand that the tables shall be plain and cheap so as to attract-a greater number ? Could he persist in lighting with gas if Williams chose something different, or reject oil if Williams- saw fit to use it ? Was a servant in the house at his beck or disposal, or could he turn off a guest that Williams saw fit to receive, or receive one that Williams rejected as unfit ? In short, what one act inight he do or authority exercise, which properly pertains to the business of keeping hotel, except merely the supervision of accounts, and this for the purpose of accounting only ? And how could he be principal in a business over which he had absolutely no control? Nor must we forget that this is not a case in which powers which might otherwise be supposed to exist are taken away or excluded by express stipulation; but they are powers which it is plain from their contract the parties did not suppose would exist, and therefore have not deemed it necessary to exclude.
On the other hand what single act are we warranted in inferring the parties understood Williams was to do for, and as the agent of, Beecher? Not to furnish supplies surely, for these it was expressly agreed should be furnished by Williams and paid for daily. Not to contract debts for water and gas bills and other running expenses, for by the agreement there were to be no such debts. Nor was this an agreement merely that expenses incurred for both were to be met without the use of credit, but it was expressly provided that they were to be the expenses of one party only, and to be met by him from his own means. There was to be no einployment of credit, but it was the credit of Williams alone that was in the minds of the parties.
It is difficult to understand how the element of agency could be more perfectly eliminated from their arrangements than it actually was. Beecher furnished the use of the hotel and a clerk to supervise the accounts, and received for so doing one-third the gross returns. It was not understood that he was to intermeddle in any way with the conduct of the business so long as Williams adhered to the terms of his contract. If the business was managed badly Beecher might be a loser, but how could he help himself ? He had reserved no right to correct the mistakes of Williams, supply his deficiencies or overrule his judgments.' He did indeed agree to take and account for whatever furniture should be brought into the house by Williams, but the bringing any in was voluntary, and so far was Beecher from undertaking to pay to the sellers the purchase price, that on the contrary the value was to be offset against the deterioration of that which Beecher supplied; and it was quite possible that, as between himself and Williams, there might be nothing to pay. And while Williams was not compellable to put any in, Beecher, on the other hand, had no authority to put any in at the cost of Williams.
It is plain, therefore, that if there is any agency in this case for Beecher to act for Williams, or Williams to act for Beecher, it is an agency implied by law, not only without having expressed a purpose that an agency shall exist, but in spite of their plain intent that none shall exist. If therefore we shall say that agency of each to act for the other, or agency of one to act for both in the common business, is to be the test of partnership, or to be one of the tests, but that the law may imply the agency irrespective of the intent, and then imply the partnership from the agency, we see at once that the test disapjsears from all our calculations. To imply something in order that that something may be the foundation whereupon to erect an implication of something else is a mere absurdity. The test of partnership must be found in the intent of the parties themselves. They may say they intend none when their contract plainly shows the contrary; and in that case the intent shall control the contradictory assertion; but here the intent is plain.
We have not overlooked any one of the circumstances which on the argument were pointed out as peculiar to this case. None of them is inconsistent with the intent' that Beecher was to be paid for the use of his building and furniture merely. He retained possession; but a reason for this appears in the power he reserved to terminate the arrangement whenever the contract was broken by Williams.. Being in possession he might suppose he could eject Williams without suit. He might alsu think it important to the reputation of the hotel that no landlord should be in debt for supplies or for servants’ wages; and for that reason require cash payments. It is easy to see that as lessor he might have had an interest in all the stipulations to which "Williams’ assent was required.
There is another view of this ease that seems to us conclusive. It is urged on behalf of defendants in error that Beecher was a dormant partner. Now a dormant partner is a secret partner; - one who becomes such by a secret arrangement, while his associate is held out to the world as sole proprietor and manager of the business. Was this the case here ? Nothing in the record indicates it. Beecher was in possession of the hotel, and wo must suppose had his clerk there. These were facts open and patent to the whole world who had occasion to go there or to deal with Williams. They naturally suggested the inquiry what was the arrangement between the parties; and there is nothing in the case to indicate that plaintiff in error would not have learned all the details of the arrangement had they made the necessary inquiries. There is no indication anywhere of intended secrecy. If, therefore, there was any partnership at all, it existed because the contract and the open and public conduct of business under it created one, and the right of the defendants in error to recover must depend upon whether they had a right, with the contract before them, to understand that they were furnishing 'supplies on the credit of Beecher? Would they have had this right? If so, no interference of Beecher, and no notice to them not to sell to Williams retying on Beecher’s credit, would have been of the least avail. If he had said to them, “ Gentlemen, by our contract Mr. Williams furnishes all the supplies; I do not and cannot control in respect to quality, quantity or cost; he alone, by our understanding, is to pay for them, and I forbid you to sell on my credit;” it would all have been useless. On their view of the case he was bound by an iron rule of the law, from which it would have been impossible to rescue his credit until the arrangement with Williams should in some manner be terminated. And this would have been the case also even if the arrangement with Williams had been a secret one, and Beecher had attempted to protect himself by disclosing its terms. This is as much as to say that parties are not at liberty to contract as they please, even when they propose nothing wrong and do nothing unfair to any one. But we cannot bring our minds to this result.
Our conclusion is that Beecher and Williams, having never intended to constitute a partnership, are not as between themselves partners. There was to be no common property, no agency of either to act for the other or for both, no participation in profits, no sharing of losses. If either had failed to perform his part of the agreement, the remedy of the other would have been a suit at law, and not a bill for an accounting in equity. If either had died, the obligations he had assumed would have continued against his representatives. We also think there can be no such thing as a partnership as to third persons when as between the parties themselves there is no partnership and the third persons have not been misled by concealment of facts or by deceptive appearances.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Marston, C. J.
Toohey recovered a judgment in the court below, but being of opinion that he was entitled to a still larger amount, of which the charge of the court deprived him, he brings the case here on writ of error.
The defendants below also being dissatisfied with the judgment, but for a different reason, also ask a review on writ of error. Both parties agree only in asking a reversal of the judgment and for a new trial, and so seldom have we an opportunity to please both parties, that we must grant their joint request, reverse the judgment and order a new trial.
Bewick, Comstock & Co. let to D. A. Kennedy the contract of putting in for them a quantity of logs. Kennedy employed Toohey to work for him, and also employed certain other parties and a part of the work was performed. Toohey seeks to recover upon the following instrument:
“ Alpena, Mich., May 10, 1878.
Mr D. A. Kennedy Wilson Township Mioh.
I am told that there are some fears expressed by some of your men, that they will not get their pay. You may say to them all, and show them, or any of them, that we here agree to pay every man in your employ, to the last dollar that may be due him, that stays by you until you put in your logs.
Bewick, Comstock & Co.”
This instrument was brought to the knowledge of Toohey and he continued to work and gave evidence tending to prove, that he thereafter looked to the defendants for his pay. Under the charge of the court the plaintiff was not permitted to recover for the work done previous to May 10th and this is the main cause of his complaint.
Defendants claim that the instrument sued on was either a mere power authorizing Kennedy to bind them, a guaranty, or an original undertaking between defendants and the men in Kennedy’s employ on May 10th, and that under either view there were difficulties in the way of plaintiff’s recovery under the pleadings, as he had declared upon the instrument as an original undertaking.
A similar case was in this court once before and is reported in McDonald v. Bewick 43 Mich. 438.
A number of authorities have been cited in the present case, in some of which instruments supposed to resemble the one here sued upon were construed. A layman of ordinary intelligence would hare no trouble in construing the instrument sued upon. It contains a very plain proposition. Bewick, Comstock & Co. were interested in having the logs put in; the men at work in putting them in were afraid Kennedy would not pay them; this coming to the knowledge of the log owners, the instrument in question was written, to bo shown to the men, and promising to pay them, or those who would stay until the logs were in. Who can doubt but that the men would, on seeing, or hearing read this instrument, and knowing the responsibility of the signers thereto, look upon it as a promise to pay them their wages — not for future work only, but “ to the last dollar that may be due ” them when the work was finished, as no payment was contemplated until then. This must have been what the men would understand, and this is just what the parties making the instrument intended they should understand. Why then should the defendants not do as they agreed ? What rule of law is violated in holding them bound by their obligation ? Courts may refine upon such agreements, at the expense of justice, and render them a mere snare to mislead men.
To say that these men can have no right of action because their names did not appear in the instrument would be but to render it nugatory as to them. This was not a promise made to some third persons for their benefit. It was made to the men directly, and Kennedy was made the agent of defendants, to bring this to the attention of the men, and upon this being done all who accepted its terms by remaining until the logs were put in, unless sooner discharged by defendants or their agent Kennedy, would have a right to recover. In this way and none other can full effect be given to the terms of the instrument, and to what must also have been the understanding of all the parties. We are also of opinion that Kennedy had power to increase the rate of wages to be paid the men after the 10th of May. He was in charge of the work and represented the defendants.
The ruling of the court below was more favorable to defendants than we think was warranted, and not sufficiently so to the plaintiff.
The judgment will therefore be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Campbell, J.
Evans and Kilmaster, as survivors of themselves and Henry Kilmaster, deceased, who had been partners, brought replevin against the Gravigans, and others not now in the record, for two oxen. These oxen had been conveyed to Mrs. Gavigan by one Sebra Proper, who sold them under transfer from Albert Pinkham, who was owner of the assets of a firm of Pinkham & Flemming by whom these oxen and some other oxen and horses had been obtained from the firm of Evans, Kilmaster & Oo. Pinkham & Flemming had contracted to cut and sell certain timber to that firm, who were to advance $2800 in supplies, and make various other payments. One important question on the trial was whether these oxen were furnished under that contract, or whether they had been delivered to Pinkham & Flemming to become their property when paid for.
It appeared also in the case that Pinkham executed a chattel mortgage on the oxen, which Henry Kilmaster, one of the firm of Evans, Kilmaster & Co., obtained from the mortgagee and had assigned in the name of Henry D. Kilmaster & Co. This mortgage was not properly recorded, and was ruled out as a ground of replevin, but some other questions arose in regard to it. Other questions arose upon rulings.
The contract for lumber becomes important, as under the rulings the jury must have found that the oxen were subject to some other arrangement. This contract was dated October 21, 1875, and bound Pinkham and Flemming to cut from land described and sell two million feet of white pine timber to be delivered in rafts on or about June 10, 1876, at seven dollars and twenty-five cents per thousand. The quality and method of cutting were provided for. If the land should not provide enough white pine, of the required sizes, the deficiency was to be made up of Norway and smaller white pine of the largest attainable size at six dollars. Some white ash and basswood was also allowed for at fixed rates. Payments were to be made as follows: $2800 in supplies at cost in Bay City; $1500 stumpage was to be paid to Mason, Luce & Co.; $4500 in cash from time to time as the work progressed, until delivery, and the balance in 3, 6 and 9 months from delivery. The bill of sale from Mason, Luce & Co. of the timber was to be transferred as collateral security. No security was to be given by Evans, Kilmaster & Co.
The replevin suit was brought in August, 1876. The ehattel mortgage was made March 29, 1876, and assigned May 30, 1876. The “sale by Proper to Mrs. Gavigan was made August 8, 1876, a.few days before suit.
The testimony for plaintiffs below, and some of the other testimony was in the form of copies of testimony given previously in another case wherein Proper had been triéd for the larceny of the oxen and acquitted.
The testimony seems to have been uncontradicted that Henry Kilmaster consented to have the oxen sold, and the proceeds applied in paying the men employed by Pinkham. If the record is correct, it is difficult to see how this question could have been treated as an open one before the jury; and it is not disputed that the oxen were released by Pinkham to Proper for the purpose of paying such debts, some of which Proper assumed to represent, and for which he had seized the property.
As much of the case seemed in the opinion of the court below to have turned upon the transaction between the firm of Pinkham & Flemming and that of Evans, Kilmaster & Co. at the time of the furnishing of the oxen, the nature of that transaction becomes material here, in one view of the case. Flemming testifies distinctly that they were furnished as supplies. The only testimony to the contrary is Pinkham’s. His version amounts to this: He dealt with the horses and oxen in various ways as if he owned them, made some sales and mortgages, and made other dispositions such as an owner would, but claims he did not own them. He says in substance that the oxen were bought to do the lumbering job, within a few days after the contract was made, and states— “Kilmaster was with me at the time for the purpose of helping me to buy supplies, and get some teams for me. We saw the cattle and liked them, and he bought them for me to get out timber for the company.” “ The cattle were not sold to me. They were furnished to me to be mine when paid for. They were to belong to the company until paid for.” There is some other testimony of the same witness, not changing this in any material way.
This testimony, if believed' by the jury, would indicate that the purchase of the oxen was entirely independent of the lumber contract. The witness does not swear that the consideration .entered into any of the lumber arrangements, or in any way changed the obligations of the written contract. It is left in doubt whether Pinkham, on this theory, acted on behalf of Pinkham & Flemming or individually, and there is no evidence which would indicate whether such a purchase outside of the lumber contract would have been within Pinkham’s authority. Moreover it does not appear what price, if any, was to be paid for the oxen, or when or how it was to be paid. Pinkham’s testimony fails entirely to show what the bargain was, which he asserts, and, consequently, what were the rights of the various parties under it. For the purposes of the questions before us it is chiefly important to note that his testimony tends to show that if not regarded as supplies the oxen had nothing to do with the lumber contract. He is the only witness whose testimony bears in that direction.
Several requests to charge were made and refused, the purport of which was that, if the oxen were advanced under the written contract, they belonged to Pinkham & Flemming ; — and further that the question of property depended on the intention of the parties at the time of the transfer, to be gathered from the contract; — that under the contract plaintiffs below were bound to make advances in cash and supplies, and no lien would arise for such advances as against the cattle.
Upon the first of these propositions, which bore directly on the main issue, and on which definite instructions should have been given, the request was correct. The supplies and other advance's to be furnished were in the nature of advance payments and when furnished belonged absolutely to Pink-ham & Flemming. TJpon this point it is claimed by defendants in error the court did charge substantially as requested.
There is a little difficulty in determining how far this is so. In an early part of the charge, the court instructed the jury that there was nothing in the written contract which retained in Evans, Kilmaster & Co. the title to any supplies furnished. But before giving any further directions on this matter the court referred at length to the claims of the plaintiffs below upon several points in the case, and instructed the jury concerning the chattel mortgage. Then referring also to defendant’s claim, the court proceeded to tell the jury that it was a question for them to determine “ whether there was any understanding or agreement between Pinkham & Flemming and the plaintiffs in this case, subsequent to this written agreement, by which the plaintiffs were to retain the general ownership of these cattle until such time as they were paid for by Pinkham & Flemming. If you should so find that there was such an understanding and agreement between Pinkham & Flemming, or between Pinkham for Pinkham & Flemming and the plaintiffs in this case, that the plaintiffs were to retain the general ownership of the property until such time as the property should be fully paid for by Pinkham & Flemming, and if you should find that Pinkham & Flemming did not pay for the cattle, then your verdict would be for the plaintiffs in the case; unless you should find that the plaintiffs, by some act of theirs afterwards, constituted Mr. Pinkham an agent, or in some way gave him authority to sell these cattle,” etc. ITpon a repetition of the request for a charge that “ if the oxen ” were furnished under this written contract for the “ supplies^ they became the absolute property of Pinkham & Flemming, the court refused it,' saying plaintiffs had a right to argue to the jury what conversation was had between Pinkham and Kilmaster, and when; and further that if not treated ak part of the supplies within the meaning of the written agreement, either of the parties could make a contract concerning them. Further language was used of similar import.
There seems to have been a misapprehension as to the points presented, and some confusion as to what had really been testified. The advances to be made under the written contract were not confined to “ supplies,” in any technical sense, but included $4500 in addition, to be advanced from time to time. Any advances, whether in cash or in property, would become the property of Pinkham & Flemming. But further than this, it is to be obseiwed that the case was treated as if there had been evidence of some modification of the written contract concerning advances. We find no evidence tending to show that, if these oxen were furnished under any different understanding, it had anything to do with the lumber contract. If furnished conditionally, the oxen were to be paid for specifically, and there is nothing to show that this payment was to be made out of the lumber, or charged against it. And the jury were allowed to inquire whether the oxen had been paid for, when there was no testimony concerning their price whatever. If there was any such agreement as Pinkham averred, there was nothing by which any one could find out its terms, beyond the single one that it was conditional. It seems to us that the jury were not instructed in such a way as to give them the proper means of judgment.
The court properly declined to tell them the continued possession of Pinkham & Flemming created of itself a pre* sumption of ownership to be rebutted by a preponderance of evidence. This was true as an abstract proposition, but when the testimony was put in on both sides as to the title and its origin, the question of possession became unimportant as a presumption of title, and had little bearing except possibly as one of the circumstances marking the transaction.
The court erred in charging that if Proper had no title and if the property belonged to plaintiff they should recover. There was evidence tending to show that the property was disposed of by consent or direction of Henry Kilmaster, and Proper in that case had power to sell whether owning it or not. It was also error to refuse the instruction that, if Pink-ham owned the property, his release to Proper was equivalent to a sale. Unless we have misunderstood the testimony there seems to be no contradiction concerning the authority given to Pinkham to sell, whether as owner or otherwise, and if so, the purchaser could not be required to see to the application of the purchase money by Pinkham or Proper, although the sale appears to have been made in fact for the purpose authorized. The charge given on this subject and the refusal of the one asked, left the jury to hold Mrs. Gavigan’s title to depend on Pinkham’s good faith.
The judgment should be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Campbell, J.
Plaintiff sued defendants for libel in publishing of him that he was a man of bad moral character, and wholly unfit to teach and have the care of a district school. This charge was made in an affidavit made by some of the defendants, and a petition of others directed to the superintendent of schools of the township of Lenox, in Macomb county, and the papers were intended to prevent the licensing of Wieman as a teacher in the district where the signers lived. The declaration, in addition to general damages, averred that the plaintiff was thereby deprived of getting such license.
The defense rested on the privileged character of the publication, and also averred, by way of justification, that "Wieman was a habitual blasphemer and profane, person, and an open violator of the Sabbath by hunting, sports and in other ways.
On the trial there was no testimony tending to prove that these papers were got up for any purpose or used for any purpose except to be laid before the superintendent of schools to prevent his gran ting-a license to ’Wiéman. It also appeared that the papers were drawn by counsel as expressing properly the result of the charges of the parties, which were detailed to him in full, and related mainly to the bad language and Sabbath-breaking acts of plaintiff, and that they were informed the papers were shaped as they should be for that purpose. It appeared further that in laying the papers before the superintendent they explained to him fully that their objections were the same before referred to and no other, and were accompanied with manifestations of an entire absence of personal ill will.
There was evidence of his general good character in other repects. There was also evidence of his habitual use of profane and bad language before his scholars as well as elsewhere, and of such open and conspicuous Sabbath-breaking as offended his neighbors. There was some dispute concerning one or two acts, but none upon the general result.
The court below held the communication was privileged unless both false and expressly malicious. It was also held that a man who habitually violated his duty by profanity and Sabbath-breaking, was of bad moral character.
If this had been a libel published generally, and without reference to any particular purpose, it is very probable that its meaning might be regarded as covering a kind of conduct' different from that proved against plaintiff here, and that, by reason of the difference, a justification might not be complete that went no further. Language does not always and in all places convey the same impression, and a person is liable for the meaning that is most natural and is actually, by his own fault, fairly accepted under the circumstances.
But, on the other hand, where the meaning intended to be conveyed, and actually understood, is shown, there can be no responsibility incurred for any other. In the present case' the writings were understood by the superintendent precisely as they were meant to be. It was his duty by law to give no license to any one unless such as “ he shall deem qualified in respect to moral character, learning, and ability to instruct and govern a school.” Laws 1875, p. 36. ¥e do not think any superintendent would need vindication for being dissatisfied with the moral character of a teacher who has the faults complained of by these parties who opposed the licensing of plaintiff. A superintendent who should subject young children to such influences, would be very censurable.
In the present case the communication was fully privileged. It was made by persons interested in the school, to the person qualified to receive and act on the petition, for. an honest purpose, and with an honest belief in the justice of their action. In such cases no action can be maintained even if the complaint is untrue, if not maliciously made. Foster v. Scripps 39 Mich. 376, Dickeson v. Hilliard L. R. 9 Exch. 79; Harrison v. Bush 5 El. & Bl. 344.
There is no error in the proceedings and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
Stnithson sued the Railroad Company to recover damages for an injury alleged to have been caused by the. company’s negligence. He was a switchman in the employ of the company, and had been for about a month, when in an attempt to couple two freight cars his hand was caught between them and he was seriously hurt. He had been a switchman and brakeman for several years on the Grand Trunk Railway of Canada before entering the service of defendant. The cars he was coupling were cars belonging to, and received from, the New York, Lake Erie & Western Railway. At the ends were what are known among railroad men as double dead-woods. A car of this construction has a horizontal timber at the end with projecting blocks bolted to each end of the timber, and the draw-bar for coupling extends but little beyond the faces of these blocks. In coupling, the blocks come together and receive the blow of the cars. The coupling-pin is dropped between the blocks from above.
Distinguished from the ear with double dead-woods is that known as the single dead-wood, which dispenses with the projecting blocks, and leaves the draw-bar to receive the concussion when the cars are coupled. The cars of the defendant are single dead-woods, and so perhaps are four-fifths of all the cars which pass over its road. Several long lines, however, use the double dead-woods exclusively, and among these are the Pennsylvania Railroad Company’s lines, those of the Delaware, Lackawanna & Western, and the Pittsburgh, Port Wayne & Chicago. The New York, Lake Erie & Western Railroad Company has adopted the double dead-woods, but have some old cars not of that style.
The gravamen of the plaintiff’s complaint is that he was employed by the defendant in making up trains and coupling cars; that the existence and use of double dead-woods was unusual and in the highest degree dangerous to the life and limb of persons so employed as the defendant well knew, and that on the 9th day of March, 1879, the plaintiff, in and about the ordinary course of his said employment, “and when the plaintiff did use due care, was coupling certain cars, which said cars by the carelessness, negligence and default of the defendant, had been introduced and used upon the said railroad by tbe defendant, then having and bearing such unusual attachments called dead-woods, so as aforesaid placed and being, which the defendant well knew, but of which the plaintiff was wholly ignorant, without using reasonable and ordinary care to notify its employees or the plaintiff of the existence of such attachments thereon so placed and being,, and without providing reasonable and ordinary means and appliances for the protection of its employees, and especially the plaintiff, in coupling the same, was caught between the dead-woods so placed and being upon said cars, and being so-held the said cars were driven and run against plaintiff, and a portion of his hand was destroyed,” etc.
The coupling of cars on the road of defendant appears to-be done with the hand alone, without the assistance of any mechanical implement. There is some evidence that what is called a “ stick ” is sometimes made use of in coupling the-double dead-woods, but the evidence' is very slight, and scarcely intelligible, and it does not appear that the use of' such an implement is general anywhere. The plaintiff gave evidence that tended to show that the coupling of the double-dead-woods belonging to the New York, Lake Erie & Western Railway Company is always dangerous; one witness-going so far as to testify that the man attempting it is more apt to be caught than to escape with safety. It was also shown that the construction of these cars differed from double dead-woods in general; the blocks being higher and nearer together; and there was considerable evidence that this difference increased the danger. On the other hand it was shown that the New York, Lake Erie & Western Railway Company deliberately adopted this peculiar form “as the result of some twenty years’ experience,” and that many of the cars of that company are passing over the road of defendant constantly. Eour hundred and seventy-six passed over in the first ten days of plaintiff’s service, but how many of these were double dead-woods, or how many it was necessary to couple, did not appear.
The case was submitted to a jury who returned a verdict for the plaintiff, assessing his damages at , $5000. It is claimed in this court that there was nothing to submit to the .iwy-
Nobody disputes that when a person enters the service of a railroad company he assumes the risks and dangers incident thereto, and cannot demand compensation from his employer for any accidental injury. In Davis v. Detroit, etc., R. R. Co. 20 Mich. 105 ; Quincy Mining Co. v. Kitts 42 Mich. 34, and other cases, we have said all that can be needfnl on the subject, and shall not repeat it here. Nobody disputes either that the employer is charged with the duty of care to those in his service, and must not subject them to risks by his own negligence. This is amply explained in Chicago, etc., Railway Co. v. Bayfield 37 Mich. 205; and in Swoboda v. Ward 40 Mich. 420, it was held in an opinion by Mr. Justice Marston, that when the servant is to be sent into dangerous places or put to dangerous tasks of the risks of which he is ignorant, due care on the part of the master requires that he shall give the servant notice and put him on his guard. We abide by all these decisions, and new cases must be governed by them as the facts may require.
If the only question before us were whether it was prudent and safe to introduce and use the cars with the coupling arrangement now complained of, we should perhaps be compelled upon the evidence before us to decide that it was not. The preponderance of evidence that they are more dangerous than the single dead-woods is very decided, and makes us regret that we are without explanation as to what it was in the twenty years’ experience of the New York, Lake Erie & Western Bailroad Company that led the company to adopt this style of car. It is not likely that the consideration of safety escaped attention, because it should have had great if not controlling weight; but it must be admitted that the evidence presented in this record tends to establish the fact that all double dead-woods are more dangerous to the man called upon to couple them than are the single dead-woods, and that the form adopted by the New York, Lake Erie & Western is most dangerous of all. There is nevertheless some evidence the other way.
But if it be conceded the double dead-woods are so dangerous, the concession does not dispose of this case. This is a question of negligence. The charge is that defendant has been guilty of a breach of duty'to one of its servants in permitting the cars of the New York, Lake Erie & Western Railroad to come upon his own road, and to be handled and coupled by its switchmen, without warning them of the peculiar construction and without furnishing them with appliances to make the coupling safe. There is no dispute regarding the main facts bearing upon this question. The company owning these cars have many thousands of them in use, and probably several hundred are coupled together every day. No doubt accidents sometimes occur, for the act of coupling cars of any pattern is always hazardous; but the evidence of persons having actual knowledge does not show that they are more frequent on that road than on others. When a witness testifies from mere inspection, as one does, that the chances of injury are greater than the chances of escape, we have a right, and indeed are compelled, to receive his opinion with many allowances, and to suspect that he has either misspoken or used words without fully apprehending their meaning. If this opinion even distantly approached the truth, a single day’s destruction of life and limb from the use of these cars would startle the country, and be surely followed by desertion of laborers and quite as sorely by prohibitory legislation. Any form of car a railroad company may select for use must be one that with care can be coupled safely, or the company could not afford to operate its road by means of them. With needless exposure of its men to danger by the use of unsuitable cars, the company would inevitably subject itself to public odium and disfavor; casualties to property would be increased, and if it could succeed in manning its road with laborers, it must pay them wages increased by the risks of danger. These are patent facts, and they justify an inference when a particular form of car is deliberately chosen and adhered to, that it is believed by those who make use of it to be as safe as any other. It is no doubt true that a company may make serious mistakes in such a case. It is quite possible for a company to adhere unreasonably to something which has been thoroughly demonstrated to be dangerous; and the mere fact that it does so cannot be conclusive in its favor of the want of negligence. But on the other hand no railroad company, and no manufacturing or business establishment of any hind, is bound at its peril to make use only of the best implements, the best machinery and the safest methods. The State does not require it, and could not require it, without keeping such minute and constant supervision of private affairs, and interfering with such frequency as under all circumstances would be irritating and damaging, and in many cases would become intolerable. In the main the State must leave every man to manage his own business in his own way. If his way is not the best, but nevertheless others, with a full knowledge of what his way is, see fit to co-operate with him in it, the State cannot interfere to prevent, nor punish him in damages when the risks his servants voluntarily assume are followed by injuries. Hulett v. St. Louis, etc., R. R. Co. 67 Mo. 240; Lovejoy v. Boston, etc., R. R. Co. 125 Mass. 79.
But it is said that even if it be not negligence in another company to use these cars, it is negligence in defendant to receive them among other cars, and to send its switchmen to make up trains with them without giving them notice of the difference. The desirability of notice is manifest, but how it is to be given is not so plain. It appears that the company inspects every car offered to it by another for transportation, and marks for rejection all that are considered unsafe, and sets them aside; and it is said that the company should mark in the same or some similar way all the cars which do not ■couple like its own, and then brakemen would be put upon their guard. As coupling is required to be done at all hours of the day or night at all points on defendant’s line, and often under circumstances of great haste, the marking would need to be something the switchman would instantly perceive without groping about for it, and in respect to which there could be no confusion and no mistake. The best marking might perhaps be a placard of some sort at the end of each car, where it would readily attract the attention of the coupler ; and as there are several different kinds of car, so there would need to be as many different placards. The differences in these would be confusing and likely to lead to mistakes. But we have had produced for our inspection, on the argument, a model of the double dead-woods which caused the injury, and it seems impossible to give to the coupler any better or more effectual notification of their presence, and of the difference from those belonging to the defendants than their very form necessarily gives of itself. The difference is very marked and striking, and it is quite impossible to couple the double dead-woods, or to approach them for the purpose, with any degree of attention, without observing it. This is so whether the' coupling is done in the day-time or night-time; for in the night every switchman has his lantern with him, or should have it on all occasions. If therefore a switchman were to declare that he had attempted to couple the double dead-woods without noticing how they differed from the cars of defendant, the conclusion would be inevitable that he had gone heedlessly in the performance of a duty requiring great care, and that he had not allowed his eyes to inform him what was before him.
Moreover the business of the road was of itself a notification that many differences requiring attention in coupling were to be encountered by the switchmen and brakemen. The Michigan Central is a great common way for the cars of all the railroad companies of the country, and every man in the employ of the defendant, if he has ordinary intelligence, is perfectly cognizant of the fact. He knows, too, that the cars of the several railroad and transportation companies differ, and that at one time or another all these differences may appear in the cars he may be called upon to couple or uncouple. Every train is likely to have several kinds, and he cannot assume as he passes from one to another that the two will be alike; much less that the whole train will be. To notify him specially of the differences would not only be troublesome and expensive, and oftentimes, as above explained, confusing, but it would be a work of supererogation ; for any man capable intelligently of performing the duty would be no wiser after tbe notice than before; and a man. who would not heed the information the very nature and course of the business would impart to him, would be protected by no notice. The best notice is that which a man 'must of necessity see and which cannot confuse or mislead him; he needs no printed placard to announce a precipice when he stands before it.
It is said the defendant should have reduced the danger to a minimum by furnishing each man with what is known as a “stick” to assist him in coupling. Our information on this subject is too meager to enable us to determine what force there may be to this position when the facts are frilly shown. We do not know that any implement of the kind is in use by any company, or that the men would be willing to use it and keep it by them ready for use at all times if required to do so. No jury with the little information on the subject which this record gives could draw an inference ■of negligence from the failure to adopt this implement.
The primary fact that must rule this controversy is that the Michigan Central Railroad Company is compelled to receive and transport over its road all the varieties of freight cars which are offered to it • for the purpose and which are upon wheels adapted to its gauge. It is compelled to do so — First, because the necessities of commerce demand it. It cannot and would not be tolerated that cars loaded at New York for San Francisco, or at Boston for Chicago, should have their freight transferred from one car to another whenever they passed upon another road. Time would be lost, expense increased, injuries to freight made more numerous, and no corresponding advantage accrue to any one. It is compelled to do so, second, by its own interest. To attempt to stop every car offered to it at its own termini, that the freight might be transferred to its own vehicles, would be to drive away from its line a large portion of its traffic, and compel it to rely upon a local business for which it must increase its charges to make up if possible for what it would lose. But third, the statute itself requires it. It is provided by General Laws 1873, p. 99, that “every corporation owning a road in use shall, at reasonable times and for a reasonable compensation, draw over the same the merchandise and cars of any other corporation.” The necessities of commerce require this with such' imperative force that there could scarcely be a more flagrant breach of corporate duty than would be a refusal to obey this law; and the interference of the State to punish could hardly fail to be speedy and effectual.
It does not follow that laborers must sacrifice life or limb in order to meet this great public necessity. It is certain that there must be brakemen and switchmen, and that these must be called upon to perform the somewhat hazardous act of coupling cars, and of making up trains of cars of different constructions. But the act is dangerous — First, because inevitable accidents will sometimes occur; and, second, because even in the most exposed positions men will sometimes be wanting in ordinary prudence. But when accident or negligence intervenes, any business is dangerous; the difference in danger is only one of degree. There are more risks in operating a mill by steam than by water, but this does not prove the use of the steam engine to be negligence in the mill-owner. The same remark may be made of different cars; one construction of car may render necessary a higher degree of care in coupling than another calls for; but there is no ground whatever for imputing to this defendant, or to any other railroad company, legal negligence for that which was a necessity of its business, and which all persons in its employ must be presumed to have known was a necessity. Indianapolis, etc., R. R. Co. v. Flanigan 77 Ill. 365 ; Toledo, etc., R. R. Co. v. Black 88 Ill. 112 ; Baldwin v. Chicago, etc., R. R. Co. 50 Iowa 680.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Graves, J.
Sarah Scott propounded for probate an instrument purporting to be the last will of her father John Fink. Opposition was made by John Fink, the half brother, and by Mary Fink, decedent’s widow, and the step-mother of said John and Sarah. The Court of Probate admitted the instrument as decedent’s last will, and the contestants appealed from the decision. An issue seems to have been made up in the Circuit Court, but the record fails to explain its shape. Enough appears to indicate that proponent affirmed the instrument in question as the last will of the deceased John Fink, and that the contestants alleged revocation by means of a later will. The form given to the altercation is not important because it is manifest no one was misled. The contest was before a jury and they decided against proponent, and she then brought error.
The surrounding facts are not disputed. At the time of his death the decedent had been three times married. The contestant John was a child by the first wife, and the proponent Sarah a child by the second. There was no issue by the third. In 1869 the decedent removed with the second wife and their daughter Sarah to Williamston in Ingham county and there established his residence on a small jfiace of between seventeen and eighteen acres, the family consisting of the three. His entire estate was worth something more than $10,000 and was all personal except the little farm place just mentioned. Soon after he took up his residence in Williamston, and on the 15th of November, 1870, he made and published the will sought to be established. He brought it home from some place after it had been drawn and executed, and delivered it to his wife who read it and then passed it to her daughter, the proponent, to take care of. After providing for the payment of debts and expenses it purported to give his son, the contestant John, $300 and all the remainder of his property to his then wife, Anna Fink, for life, and remainder in fee to his daughter, the proponent Sarah.
He appointed proponent’s mother Anna sole executrix. He subsequently made another will containing similar pro visions. It was executed within a year or less after the first. The first will fixed the time for payment of the legacy to John at two years after the testator’s death, and the second one extended the time to three years, and also stated by way of explanation for not giving more to John, that the testator had previously helped him. The second will differed in no other respect from the first.
September 1st, 18Y5, Anna Fink, proponent’s mother, died. Shortly after that event decedent made and published a third will. It was drawn by Mr. Smith and the scheme was altered to meet the change which had taken place. The decedent took it home and showed it to his daughter, the proponent, and she read it ancl he placed it among his private papers. And on that occasion he burned the.second will. His daughter, the proponent, was named executrix in the third will. There was no controversy at the trial about the formalities of the first will. Had nothing occurred after its publication to impair it, it must have been regarded as its author’s last will. This is virtually conceded.
The proponent was sworn as a witness on the part of contestants, and she testified concerning the second and third wills. Indeed the entire history of the second will was derived from her. She also explained how her father brought home the third will, and how she examined it, and what its provisions were. She testified that she was named executrix; that three hundred dollars were given to her half brother and the remainder to her; that there were no other bequests, and that she cannot tell whether it contained a clause of revocation or not. She also mentioned that there had been rumors of the destruction of the third will. She did not swear it was still extant. On the contrary, she testified that she did not see it destroyed, and that all she knew about its destruction was, that after her father’s death the report went out that it was destroyed, but that she did not know from whom.
It is not unworthy of notice that the deposition of proponent established the existence of the third and latest will, and showed that its provisions were inconsistent with the first, and hence sufficient to work a revocation of it, and moreover, that so far as she knew, it was still in existence. At the conclusion of her evidence, therefore, the third will was presumptively on foot, and there was a prima facie case of revocation of the first. But the contestants proceeded with commendable fairness to explain all the facts.
In July, 1876, the decedent intermarried with the contestant, Mary, in Oswego county, New York, and she returned with him to "Williamston, where they resided together as husband and wife, until his death. When he went to New York, he carried his third will with his other papers, and showed it to her, and on his return to Williamston, and whilst looking over his papers, he took the will out and handed it to her with the request to put it in the stove and burn it, and she complied, and it was then burned. The proof was positive that it contained a clause of revocation. The testimony of the gentleman who drew it and of his law partner, who knew its contents when it was executed, was in some respects different from that of proponent in relation to its dispositions, but these variances afford no aid to her case on any theory.
That this third will was destroyed by its author is not disputed. The declarations made to his daughter, the proponent, on the occasion of his bringing home the third will and destroying the second, were adduced in evidence, as were also his declarations to his wife, the contestant Mary, on the occasion of requesting her to burn the third will. But the point in the case is whether the cancellation of the third will was sufficient to restore the first. The proponent insists that it was, and the contestants deny it.
There has been much difference of opinion on the question whether the revocation of a second will is of itself sufficient to revive the first. For the last century those maintaining that it is, argued that the second will is without force against the first unless it becomes effective by being allowed to survive the testator, and the opinion of Lord Mansfield in Harwood v. Goodright Cowper, 87, is cited as conclusive. That case originated in the Common Pleas, and is fully reported In 3 Wilson 497. There was a special verdict. No revocation was found, nor the existence of revocable words, nor what were the provisions of the second will or any of them. And the jury stated expressly that they did not find that the testator cancelled the second will, and that they were altogether ignorant as to what had become of it. The point in question was not in the case, and Lord Mansfield’s observations, as reported in Cowper, were purely dicta.
A little earlier, and in Easter term of the same year, the King’s Bench had the case of Burtenshaw v. Gilbert before it. Cowper 49. One Newenden made his will in 1759, in duplicate, giving one part to the scrivener to keep, and retaining the other himself. He observed that it did not suit him, and that he made it to keep his wife easy. His wife died. Thereafter, and in 1761, he produced the part of the old will in his possession, and made another will with different devises. He tore off his name and seal from the part which was present of the old will, and caused the names of the witnesses thereto to be cut off. He made some explanations to the scrivener, and placed the new will in his custody. Some changes ocrarred thereafter, and one of the objects of his bounty died. He sent for the second will, and after-wards for an attorney to draw another, who however did not reach him until he was too far gone to do anything. After his death one part of the first will and the second will were found together in a paper, both cancelled. The other part of the first will was found uncancelled in the testator’s room, with other deeds and papers. The question for the court was whether the first will was revoked. Lord Mansfield observed, among other things, that “ if the testator had died immediately after he made the new will, whether he had cancelled the former or not, it would have been revoked; because at the end of the second will, there is a declaration by which he revokes all former wills. Besides this he deliberately cancels that part of the will of 1759 which he had in his own possession. The facts are too many and too strong to admit of a question, but that, at the time of making the second will, the first was upon every principle of law clearly revoked, and can never be set np again but by a new will.” The court takes notice, it is true, of the act of mutilation of the one part of the old will, but the circumstance on which stress is laid is the existence of revocable words in the new will, and there is strong ground for inferring that the result would have been just the same if the act of spoliation of the one part of the old will had not been committed.
In Goodright on the demise of Glazier v. Glazier, reported in Burrow 2512, it does not appear that the second will contained a clause of revocation.
There seems to have been a material distinction, and on good ground, between the state of a former will after a second one merely inconsistent with it, and its state after a second one with a declaration expressly revoking it.
In the first case the only chance for the second to operate in revocation of the first, according to the prevalent theories of the courts, was by its coming to a head as an active will, which it could do only by surviving its author. Being the last expression of the decedent and at the same time practically inconsistent with the prior one, the intent to repeal the first by it was to be implied. In case, however, of its being recalled by the testator in his life-time, it could not, on the theory referred to, be taken to have had the effect to do away with its predecessor. Being cut off before having its dispositions of property awakened into life, it could have no affirmative operation through its dispositions upon the estate.
In the second case the written declaration is express and in plain terms immediate and absolute. It is a verbal act done solemnly and deliberately for present effect, and not an act contemplating that future circumstances are to determine whether after all it shall have any force. It is not a needful ingredient of the will. That is perfect without it. The addition of it is a mode of immediate cancellation of prior wills, and quite as unequivocal and unambiguous as many others within the statute whose meaning is open to no controversy. It operates at once, and does not apply as a mere contingent caveat against the objects at which it is aimed. It revokes tbem without reserve or qualification. ' And in •case the document with which it is connected is itself revoked, that fact can have no effect as a restoration and republication of former revoked wills.
It is only necessary to glance at the authorities to see that judicial opinion, as already suggested, is not harmonious in regard to this question. Much, no doubt, of the diversity may be traced to variety of legislation, but not all. Upon consideration, the doctrine of James v. Marvin, 3 Conn., 576; Boudinot v. Bradford 2 Dall. 266, and others holding the same views and ruling in accordance with what has just been expressed, appears to be most consonant with our system and with popular understanding, and at the same time the most reasonable and safe. Having reached this result, it is only necessary to add that the proponent has no occasion to complain of the rulings. She was not prejudiced.
The order of the circuit court should be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
Hart brought replevin against Mrs. Elliott and Charles C. Curtis for a building, and was allowed to recover, and she alleges that errors were committed. The building being personal property and capable of being moved from one locality to another the declaration and other proceedings in order to identify it described it as being on lot seven of block six of the city of Lansing, and in speaking in this manner about the place where the building stood, the time referred to when it was so situated was the time when the proceedings were instituted. The meaning is the same as though in each instance the reference had been express to the occasion of taking out the writ. The statement has no bearing on the site the building may have occupied at any other date, earlier or later.
Hart traced his title through a safe on justice’s execution. The judgment on which the execution issued was rendered by one Charles Campbell, a justice of the peace in the city of Lansing, in favor of Orlando Button and against Richard Elliott, and the sale was made to Button by á constable named Rogers. Hart bought of Button. The proceedings on the execution being offered in evidence, and it appearing that the certificate of the levy and the notice of sale each referred to a building on lot eight of block six instead of one on lot seven, as in the writ of replevin, the evidence was objected to on account of this difference. The constable was then allowed against objection to identify the property now in question as the same he sold on the execution.
The objection went upon the theory that the site spoken of in the action was an inherent part of the description and a permanent mark of the property. Of course the assumption was fallacious. The building being a mere chattel was liable to be shifted about from one lot to another, and at the time of the objection it had not been shown that no move had taken place subsequent to the levy and sale. On the contrary there was ground for inference that a change had occurred. According to Hart’s testimony given afterwards the statement in the levy and notice that the building was on lot eight was a mistake. It was on lot seven. But there was no mistake in regard to the building. The same erection which was levied on and sold to Button and by him transferred to Hart is the same sued for and described in this case. The parol testimony to identify it was not incomplete. Borland v. Stewart 4 Wend. 568; Jackson ex dem. Hunter v. Page id. 585. Had the property been a horse which the officer had mentioned as being in stall number 8 when in fact he was in the adjoining stall number I, no one, I imagine, would have supposed the mistake to be fatal or to be not explainable by parol. The facts here are no more favorable to the plaintiff in error.
In filling up the blank execution the justice by an evident mistake neglected to insert the name of the county, and it did not contain the name of any township or- city. Parol evidence was admitted to prove that the execution was issued on the proper judgment and emanated from the justice who gave the judgment, and that the levy and sale were made pursuant to it. The execution was objected to as invalid and the parol testimony as incompetent.
The wi'it was not void. It was issued on a lawful judgment by the proper officer and in due time, and was made returnable within sixty days. It described the judgment and required the officer to collect it. The only material defect was the omission of the name of the county, and this was a clerical irregularity apparent on the face of the writ, and which in the case of a justice’s execution, and as against a stranger to it resisting the claim of a puz’chaser under it, was curable by parol evidence. Perkins v. Spaulding 2 Mich. 157; Stewart v. Stocker 13 S. & R. 199; Lewis v. Avery 8 Vt. 289 ; Morgan v. Evans 72 Ill. 586 ; Blaine v. The Ship Charles Carter 4 Cranch 328; Webster v. Farley 6 Blackf. 163; Lessee of Matthews v. Thompson 3 Ohio 272; Douglas v. McCoy 5 Ohio 523; Phelps v. Ball 1 Johns. Cas. 31; Inman v. Griswold 1 Cow. 199; Ross v. Luther 4 Cow. 158; Porter v. Goodman 1 Cow. 413; M’Intyre v. Rowan 3 Johns. 144; People v. Dunning 1 Wend. 16; Stone v. Martin 2 Den. 185; Dominick v. Eacker 3 Barb. 17; Park v. Church 5 How. Pr. 381; Pierce v. Alsop 3 Barb. Ch. 184; Averill v. Wilson 4 Barb. 180; Berry v. Riley 2 Barb. 307; Peck v. Tiffany 2 Comst. 451; Bacon v. Cropsey 3 Seld. 195; Holmes v. Williams 3 Cai. 98; Lyon v. Fish 20 Ohio 100.
How the case znight stand in a direct controversy between the parties to the executiozz is a question which does not arise. The contest here is between, one holding under the execution sale and one deriving title by a purchase from the execution debtor prior to the levy. The execution defendant has made no objection to the execution, and if he does not see fit to eozzzplain of the zz'regularity, there seems to be no ground under the authorities, of which several are cited, on which the plaintiff in error could be heard to do so. The jury negatived her title, and her position on the record is that of one holding without right and opposing Hart’s title on the ground of an irregularity in the execution which is part of his title, and of which irregularity the execution debtor is not minded to complain.
"What has been said disposes of the case. There is nothing to warrant interference with the judgment and it must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
Gould sold Baughman certain merchandise together with a small parcel of land for $1000. The lot was surrounded by a fence and there was a dwelling-house, a well and considerable ornamental shrubbery. ' It was represented by Gould that the lot included all the territory enclosed, and this representation was made by him and received by Baughman in perfect good faith. Both supposed it to be true, and Baughman in assenting to the purchase and in agreeing to terms relied upon it. The purchase of the goods and of the real estate was an entire transaction, although the price of $650 was assigned to the latter. When the parties adjusted the general consideration there was a balance of $151.40 still to be provided for, and Baughman gave his note for it. It was subsequently ascertained that the representation made by Gould was incorrect and that part of the land within the enclosure belonged to another; that a small portion of the house was beyond the line and that the well and part of the shrubbery were wholly so.
Under these circumstances Gould brought this action upon the note, and Baughman claimed to recover damages for the misrepresentation made relative to the premises. ■ But under the judge’s rulings the jury found in Gould’s favor and refused to allow anything on account of the misrepresentation.
Two points arise upon the charge: First, the circuit judge instructed the jury that there could be no recoupment unless Gould knew his representation was false or, at least, had means of .knowledge that it was so superior to any possessed by Baughman; second, that in case the note was given in part' payment for goods and land together it would not be competent to allow damages for the misrepresentation concerning the land.
, ¥e are not able to assent to either of these propositions. For the purpose of recoupment it is quite immaterial whether, as a question of morals, Gould was or was not at fault. The right to recoup was not dependent on it. There being in fact a misrepresentation, though made innocently, its deceptive influence was as effective, and the consequences to Baughman as serious in respect to actual damage as though it had proceeded from a vicious purpose. The result was a fraud on Baughman, in contemplation of law, and it entitled him to contend in Gould’s action for the purchase money that the damage should be thrown on the latter. Converse v. Blumrich 14 Mich. 108; Steinbach v. Hill 25 Mich. 78; Webster v. Bailey 31 Mich. 36; Starkweather v. Benjamin 32 Mich. 305.
The circumstance that the misrepresentation was confined to the real estate whilst the consideration of the note included some part of the purchase price of both merchandise and realty is of no importance. There was but one trade and the consideration from Baughman was not apportioned. The object of the suit is to enforce performance of Baughman’s share of the trade, and the claim of recoupment is founded on actionable conduct on the part of Gould in his share of it. The case seems to be within well-settled rules, and there is no occasion to cite authorities.
Judgment should be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Graves, J.
The complainant filed 'this bill under the statute to compel defendant to release a claim alleged to be set up by him to certain premises in her ownership and possession. Comp. L. § 5072. In the course of his answer he denied having made any claim and stated that as far as the mortgage specified in the bill was concerned he had always been willing to release all claim under it on request, and that he made no claim to any of the land on the strength of the mortgage, or the foreclosure thereof or the sheriffs deed. He nevertheless admitted that he had refused to quit-claim his interest for the reason that he held an indedependent title. The court below granted the relief author ized by the statute and allowed costs to complainant. Her right to the land as against defendant appears on this record to be unquestionable, and there is nothing to dispute about except costs, and when the terms of the statute are applied to the attitude of the parties and the circumstances of the case there is small chance for controversy on that question.
The statute says : “ If the complainant shall establish his title to such lands, the defendant shall be decreed to release to the complainant all claim thereto, and pay costs, unless the defendant shall, by his answer, disclaim all title to such lands and give a release to the complainant, in which case costs shall be awarded as the court may deem just.”
The statements of non-claim in this answer are not a disclaimer of all title, and were not so intended. On the contrary there is a distinct assertion of title adverse to that of complainant, and the proofs are all against him. The complainant has a perfect case under the statate, and the conditions are wanting to invest the court with any discretion on the question of costs.
The decree should be affirmed with costs.
The other Justices concurred.
G-raves, J.
The only difference between this case and Ellison v. Kittridge is that in this a disclaimer of title appears in the answer. The defendant neither gave nor tendered a release; but on the contrary he took a contentious position and adhered to it. That he gave lawful occasion for . complainant to file the bill appears conclusively. He obtained a satisfied mortgage on this and other lands and including premises which had been quit-claimed to himself, and went through the form of a statutory foreclosure, followed by a deed in his favor from the sheriff. There was no record evidence that the mortgage had been paid, and his proceedings created an apparent right to complainant’s land. He claims the foreclosure was a proper expedient to fortify or clear up the title to his narcel and that of complainant and others, and lie insisted on his foreclosure as against complainant and the others unless they would pay him what he regarded as a proper proportion of his alleged expense.
The provision in § 5072 for giving the court discretion in decreeing costs supposes the defendant to have gone- far enough to justify complainant in filing the bill, and, consequently, far enough to make it just, in the event of his disclaiming title, to require him to take the further step and accompany his disclaimer with a release of all title to the complainant.
The disclaimer and release are the statutory preliminaries to the right to apply discretion to the question of costs, and before the defendant can ask favor under this clause of the statute he must perform these preliminaries, and if any expense is involved he must bear it. No difference is made in this respect between the cost of disclaimer and the cost of release. "What the court may do concerning these items when it comes to exercise its discretion is another question. Having given ground for the bill the law offers the defendant opportunity to apply for favor on the terms of disclaiming and releasing. The complainant is not put to terms, and is under no duty or obligation to tender or pay for a release. The defendant is the only one to be benefited, and he must do what is necessary to permit the court to entertain an appeal to its discretion. No part of that burden belongs to the complainant. In the present case no release has been offered by the defendant, and his disclaimer alone is not sufficient to warrant stepping from the imperative provision to the discretionary one.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
The court below, after hearing the evidence, directed a verdict for defendant, and the general question is whether the plaintiff is entitled to complain of this ruling.
Margaret Hack otherwise called Margaret Taufkirch died in March, 1870, and the plaintiff was appointed administrator in August, 1880. As shown by his testimony the plaintiff’s case presents in substance the following state of facts.
In 1863 decedent placed $1276 in defendant’s hands and received his note therefor; that she drew the amount down to $910; that in the summer of 1868 she fell into a state of dementia bordering on idiocy, and that whilst she was in that condition an arrangement was made by defendant with her by which he was to deed to her a house and lot on Sherman street in Detroit for the $910 remaining in his hands, the property being fairly worth that amount; that on the fourth of January, 1869, and in accordance with this arrangement, the defendant executed the deed and acknowledged it before Eugene Fecht and then delivered it to that gentleman to be by him delivered to decedent, and the note held by decedent for the money was returned to defendant; that the deed was placed on record and decedent, together with two of her children and Mr. and Mrs. Cuff, immediately proceeded to occupy the place, the latter acting as decedent’s nurse ; that after some few weeks decedent wanted to return to her former residence, and on this account such occupation was discontinued; that at her death in 1870 she left three children her sole heirs-at-law, and that two of them subsequently deeded their interest, more or less, to the defendant for a money consideration which he paid. There are some other incidents but they are not important on this inquiry.
The action is claimed to be for the recovery of the residue of the old deposit, and plaintiff’s counsel has ingeniously arrayed' the facts and has sought to place the defendant in the attitude of a debtor who is called on to make proof of payment by means of a regular transfer of land. The defendant, it is argued, must acquit himself by satisfactory proof of payment and hence must show that the transfer of the house and lot in exchange for the $910 was binding on the decedent. But this is scarcely a just theory. The plaintiff has found it to be impossible to get his case before the court without showing a state of facts not in unison with such view. When all refinements and all technicality are put aside, it seems to be the meaning of the proceeding to evade all questions of liability respecting the re-establishment of rights and interests as they were prior to the giving of the deed, and by means, of an action at law simultaneously avoid the conveyance and compel the defendant to refund the consideration.
In passing it occurs to observe that any attempts to deal with a transaction of this nature and which is complicated by such incidents as are here manifest, in an ordinary suit at law, must be attended by very serious difficulties, and that in case of the existence of any substantial cause for judicial interference it might be well to consider whether the remedy would not have to be sought in a court of equity where all persons interested could be made parties and all rights and liabilities be equitably and safely adjusted. For the purpose of this review the decedent’s state of imbecility, as represented by the plaintiff must be admitted.
The first point requiring notice relates to the delivery of the deed; and in regard to this it is argued that, if the facts are viewed apart from the circumstance that decedent was imbecile, the law will not consider them as amounting to a delivery. Upon this question the authorities are decisive against the plaintiff. Hosley v. Holmes 27 Mich. 416; Latham v. Udell 38 Mich. 238; Gardner v. Collins 3 Mas. 398; Gould v. Day 94 U. S. 405; Church v. Gilman 15 Wend. 656; The Lady Superior of the Cong. Nunnery of Montreal v. McNamara 3 Barb. Ch. 375; Concord Bank v. Bellis 10 Cush. 276; Regan v. Howe 121 Mass. 424; Hastings v. Merriam 117 Mass. 245; Buffum v. Green 5 N. H. 71; Merrills v. Swift 18 Conn. 257; Frost v. Peacock 4 Edw. Ch. 678; Tompkins v. Wheeler 16 Pet. 106; Tibbals. v. Jacobs 31 Conn. 428; Jones v. Swayze 42 N. J. L. 279 ; Mitchell v. Ryan 3 Ohio St. 377; Berry v. Anderson 22 Ind. 36, 39; Kingsbury v. Burnside 58 Ill. 310; Robinson v. Gould 26 Iowa 89; Kerr v. Birnie 25 Ark. 225; Farrar v. Bridges 5 Humph. 411; Wesson v. Stephens 2 Ired. Eq. 557; Doe v. Knight 5 B. & C. 671.
It is next contended that the deed was prevented from taking effect in consequence of the want of proper understanding by decedent to make an intelligent acceptance. The final meaning and effect of this argument is that an idiot or lunatic cannot take at all by deed. Such- must be the result if an intelligent acceptance by the donee or grantee is necessary for the vesting of the title when the gift or grant runs to one in that condition. But the law is otherwise. Lord Coke says that “ a man of non-sane memory may, without the consent of any other, purchase lands ” (lib. 1, c. 1, § 1, 2b) and that “persons deformed having human shape, ideots, madmen, lepers, deafe, dumbe, and blinde, minors, and all other reasonable creatures, have power to purchase and retaine lands or tenements,” (3b;) and see 2 Bl. Com. 291; 1 Stephen’s Com. 441, 442; 2 Broom & Had. Com. (Am. ed.) 714; 2 Washb. R. P. (1st ed.) 567; 3 Bac. Ab. Idiots and Lunaticks, D; Touchstone, Feoffment, 204; Grant, 235. Alluding to this, Chief Justice Shaw observed that a good conveyance could be made by a deed-poll to a lunatic although the grantee would be under a legal disability to make a conveyance, and that the delivery to a third person unconditionally for the use of the grantee would give effect to the deed. Concord Bank v. Bellis, supra.
The rule of course may not apply to an instrument which goes further and assumes to impose a burden, liability or obligation on the grantee, and there is no occasion to inquire whether a deed would operate in case the incapable grantee were under guardianship. The transaction in question is the simple case of a deed-poll lawfully delivered to a third person unconditionally for the use of decedent and followed by circumstances inclining towards actual acceptance. The objection that the deed was wholly void is substantially answered by what has been said. It could not be so, and at the same time take effect as a conveyance. The authorities last cited are sufficient. The rale contended for would cause great hardship as well as mischief. A gift or grant unfettered by any condition, and however just and beneficial in itself (not being for necessaries) would, if made to a person not capable of expressing acceptance by intelligent action, be nugatory and totally unavailable to him. No grant or gift except for necessaries could vest in such a person in the absence of trust or guardianship.
The general rule is that transactions whicli are not necessarily binding are yet to be considered as standing until regularly assailed by some one whose position or interests entitle him in the view of policy or justice to assail them, and the cases where transactions are regarded as having no force at all as between any persons or any parties for any time whatever, are comparatively few and the present is not one. The title vested in decedent and at her death descended to her heirs, and admitting, though not deciding, that she might have maintained an action of this kind had she regained understanding, or that her guardian as lawful manager of her property and interests, in case one had been appointed, might have done so, and in each case on the ground that the action prosecuted by such a plaintiff to regain the consideration would in itself be a waiver or rejection of the grant, the circumstances are now wholly different. It will be conceded probably that the right to have back the money cannot exist, unless the transaction, which at the utmost is only voidable and not void, is actually avoided.
No one can at the same time insist that a contract is in force and is not in force, nor recover on a basis which his proceedings contradict; and whilst a voidable transaction remains unavoided it operates as one that is binding; and no action that contemplates it as one which has been avoided can be maintained. The result is that if the arrangement with decedent has been suffered to remain, which is a fact unquestioned, and if this action has no force to avoid it, a complete denial is necessarily implied of all right to recover what is sued for. Is there, then, any efficacy in this case to avoid that arrangement? The answer is obvious. The administrator has no power either directly or indirectly to waive the conveyance. The law casts the right on the heirs who have the title by descent (Coke on Litt. 25, and Bac. Ab. sivpra) two of whom seem to have dealt with the premises in a manner wholly at variance with any right of avoidance.
An administrator has no commission from the law to intervene and by his election unsettle the landed possessions held by the heirs through inheritance, on the specific ground that the ancestor, at tlie time when the property vested in him, was not of sound mind. Neither is it his province to proceed in disregard of the fact whether the heirs have or have not elected to abide by the grant, and sue to reclaim the purchase money.
As something has been said about the defendant’s mode of dealing with the two heirs in obtaining their deeds it may be proper to observe that whether he acted fairly and justly therein does not concern the administrator and is not a question to be adjudicated in this action. Whatever grievance the heirs may have in that regard must be redressed on their complaint. • •
While disagreeing with the plaintiff we do not fail to recognize the skill displayed by his counsel.
Judgment must be affirmed with costs.
Mabston, C. J. and Coolev, J. concurred.
Campbell, J. did not sit in this case. | [
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Marston, C. J.
The complainant and defendant are brothers, and, prior to 1869, they owned certain real estate in common and were engaged in keeping a saloon in East Saginaw. The complainant had become indebted as an indorser, and was also liable on certain paper which he claims was fraudulently obtained, and to avoid payment of this last, he made an absolute conveyance of certain real and personal property to the defendant, and a written agreement was at the same time executed, under which'.the grantee was to pay certain debts against the complainant in consideration of the conveyances made. The complainant now claims that there was a farther agreement made between the defendant and himself, that he, the complainant, should retain his interest in the saloon ; that the defendant out of the profits and proceeds of the property was to pay the debts of the complainant, except the notes fraudulently .obtained, and that upon payment thereof, the defendant should then reconvey to complainant his interest in the property. The bill was filed in this case for an accounting and for leave to redeem. It is almost needless to say that the defendant claims that the conveyance to him was absolute ; that lie was not to reconvey when the debts were paid, and that complainant had no interest in the business carried on by him. The case was heard upon pleadings and proofs and the bill dismissed.
All the writings introduced in evidence sustain the defendant’s theory. The oral evidence introduced on the part of the complainant, standing alone, is not of that clear and satisfactory character which would justify a court in granting the relief prayed for.
After the conveyance was made certain- creditors of the complainant levied upon the property and then filed a bill in chancery to have the conveyance set aside as fraudulent as against creditors. The complainant put in an answer, and was examined as a witness in that case, and also the defendant. The transaction was then by them proven to the satisfaction of the creditors to have been bona fide, and the proceedings were abandoned. No pretence was then made by this complainant that-, he had any interest in the property, or that it was at any time or under any circumstances to be reconveyed to him. If valid then, it has not changed since
We need not discuss the questions raised at length.
The decree must be affirmed with costs.
Campbell and Graves, JJ. concurred: Cooley, J. did not sit in this case. | [
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] |
Graves, J.
August 2d, 1876, the complainants filed this bill to restrain the defendant from keeping a dam below their premises on Farmer’s Creek in Hadley, Lapeer county. The defendant answered on the 12th, and proofs were subsequently taken at great length. In January last the case was heard on the merits, and after taking time to consider, the court on March 2d dismissed the bill with costs. The precise grounds of dismissal are not explained in the record. An appeal was then taken on the part of complainants. King seems to have transferred his interest to a Mr. Tubbs since the commencement of the suit.
The premises described as belonging to Watkins, and being those chiefly exposed, were originally, with others now claimed by Pierson, possessed by the late William Hart who purchased and settled on them in 1835. The premises said to be owned by Mr. Cobb abut on the west, but being higher up and more remote are far less in danger. The general features of the place are such as are often met with. There ■seems to be a marl or hard-pan basin of irregular outline and •containing between two and three hundred acres, and nearly filled with muck and bog except a distant point at the north where there is a smíjll area of open water called Duck Lake. On the west side of this little pond and also at the northwest extremity or arm of the basin is a fringe of tamarack trees. The rest, with the exception of two or three small islands of timber, is what is called open marsh.
Several small streams approaching from different quarters and draining a considerable part of the township of Hadley pour their waters into this reservoir. One stream forms the outlet of the little lake. The most important courses are two, now known as Hamlin and Beden creeks. The marsh narrows at the east end nearly to a point and the surplus waters are there voided through an outlet which is not deep enough to empty the basin and not wide enough, in case of an unusual accumulation, to prevent an overflow. There seems to be a rim which prevents the free passage of the water in the outlet and causes at certain stages what are called ripples. Several rods below where the water leaves the marsh the outlet is crossed by the main street of the village of Hadley, and the stream is spanned by a bridge, and a short distance further down is the dam in question. A small pond is formed embracing from six to ten acres and extending from the dam to a point a little way above the bridge.
In recent years and including a part of the interval since the institution of the suit, the complainants and Mr. Tubbs have made several ditches in the marsh, and in some places new channels have been constructed for the natural courses, making the passages shorter and the beds narrower and deeper. At the time the suit was commenced the dam had been maintained on the same site about thirty years. The witnesses differed in their recollection as to the precise year in which it was first put up. The exact time is not important. It was then erected by a man by the name of Fortune, and it seems that it was agreed between him and William Hart at that time that he should have the right to set the water back to a certain point, and that Hart in 1859 com plained that Fortune ceased to regard the agreement and was raising the water above the point established. The consequence was that Ilart brought an action in the circuit court for the alleged unlawful flowing. But the case was taken out of court and the controversy submitted to the determination of five neighbors, and they made a decision in which all acquiesced.
They selected a stump situated in the pond near the mill to serve as a fixed gauge of the height the water should not exceed. This high-water mark, as the witnesses call it, was either the top of the stump or a shoulder cut in about eight inches below the top, and on this point the evidence is utterly conflicting. The complainants’ witnesses who testify on the subject, describe the mark as a place in the side of the stump about eight inches below the top, and those of defendant, including the two arbitrators sworn, say the top of the stump was to be the water mark. Some attention at the time of the arbitration seems to have been given to a place in the outlet of the marsh spoken of as a rapid or “ ripple.” But the witnesses differ about that. Those for the complainants fix it at a point about due south of the old log house of William Ilart, and those for defendant between thirty and forty rods further up the outlet. The difficulty of identification is much enhanced by the fact that a new channel has been made opposite the old one at the point indicated by complainants’ witnesses. Much is said about the depth of water at the “ripple” at different times, and the depth given in case of the mill pond being at the high-water mai*k fixed by the arbitrators at the stump, and the true position of the ripple is chiefly important as bearing on the value of these comparisons. A comparison or an offer of one which contemplates the ripple as at a place directly south of the site of the old log house can be of little, if any, value if the facts are not sufficient to fix it there and show that the other is not the true locality. It does not appear from the case that the arbitrators designated the ripple, whether situated at one spot or the other, as a mark for high water.
The claim for an abatement of the dam on the ground of its being a source of disease is not supported by tbe evidence, and moreover the case in that view of it is not urged.
The complainants’ proofs are very full to the effect that their premises are not injured or liable to be injured by the dam unless the water is raised higher than the mark which the arbitrators fixed. Their position seems to be however that in this they mean the mark as they insist the arbitrators placed it, some eight inches below the top of the stump, and they contend that defendant has been accustomed to raise the water to the top of the stump. As the defendant claims that the arbitrators madó that the limit, he no doubt has generally raised the water to it. But whether the line designated by the arbitrators was on a level with the top of the stump or with a point eight inches lower, or whether those preceding defendant were governed by the one or the other, the implication is very strong that complainants regarded the -limit which was actually applied as* one which gave no cause for complaint, and this state of accord seems to have continued for more than ten years subsequent to the arbitration. Again, it is a part of the case made by complainants’ evidence that Fortune and those succeeding him down to the time of defendant, habitually observed the decision of the arbitrators, and that during their holding the back flow was not injurious. And on the other hand the defendant makes proof that during his holding the water has been raised no higher at the stump than it was by his predecessors.
The defence contends further that the opening at the bridge is not sufficiently capacious, and that if the dam were wholly pulled down the bridge would hinder the watér from passing off faster than at present. The ditching is also mentioned as largely contributing to the conditions to which complainants object. It is said to“ have been so designed and executed as to derange the natural circulation and disturb the balance between the inflow and outflow to the detriment of the latter, and it is claimed also that a portion of the ditches have been suffered to form bars in some places and choke up in others. In reply to these considerations it is contended by complainants that their evidence proves that the objectionable conditions are directly owing to the state of water in the pond. That every change there is immediately followed by a corresponding change on the marsh.
It is unnecessary to pursue the various facts and contending views. The essence of the controversy is whether complainants are right in their claim that the defendant raises the water above the old mark originally assented to and which the arbitrators caused to be indicated permanently on the stump. .Because if they are not correct in this, and the defendant does not exceed the old limit, there is no foundation in the case for equitable interference. Indeed this may be regarded as virtually conceded. The actual extent of usé formerly acknowledged to be right, seems not to be controverted. The alleged grievance is that it is exceeded. Coming then to the substantial question — is the state of the proofs such as to justify the Court in reversing the decree below and in proceeding to grant a decree here in favor of complainants? A thorough examination and re-examination of the record leads to an answer in the negative. No solid ground of definite relief can be deduced from the proceedings. At least there is no such distinct and certain showing as would warrant the Court in setting aside the decision of the circuit judge and in giving a decree against the defendant.
There are two or three questions of fact, which, in case it were necessary to have them settled, might with great propriety be submitted to a jury, and after much consideration it is thought best to make the dismissal without prejudice to any future proceedings at law, nor to any proceedings in equity in case the facts shall have been decided by a jury adversely to the defendant. The defendant will recover his costs.
The other Justices concurred. | [
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] |
Marston, C. J.
Cries sued Harrington in assumpsit, declaring, specially. Upon the trial he gave evidence tending to prove that in April, 1878, he entered into an agreement with Harrington, by which he, Gies and his wife, should work for defendant one year, upon his farm, taking care of the farm-house, boarding men, and also to give defendant the use of a cow owned by the plaintiff. Defendant was to furnish all needed supplies for the house and pay plaintiff $180. It was farther claimed by plaintiff that at the expiration of six months from the time they commenced work the defendant, without good and sufficient cause, discharged them.
The principal objections urged in this court are, that there was a variance between the declaration and proofs, and that
■ the husband could not sue in his own name and recover for the services of his wife.
We find no material variance between the declaration and the proofs. All that was alleged was proved, or at least evidence given tending to prove it. In reference to the second objection, the wife does not seem to have made any separate claim. The husband had a right to enter into a contract to work -hiinself and to furnish labor of any other person, whether his wife or not, and if he performed on his part, we see no reason why he should not be permitted to recover. His wife made no claim against the defendant, but appeared as a witness on the trial in corroboration and support of her husband’s claim, thus ratifying his agreement if any ratification was necessary.
The court fairly and clearly, submitted to the jury the question whether defendant was justified in discharging the plaintiff and also whether plaintiff made reasonable effort to obtain other employment.
The plaintiff after leaving defendant’s employ and within the' year performed some services upon his own land, and this the defendant sought to inquire into and have the value thereof deducted from the plaintiff’s claim. If the plaintiff made an effort to obtain employment in the vicinity where he resided and failed, he was under no obligation to remain idle, and if he performed some labor for himself he coaid not be charged with the value thereof.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
For the purpose of completing an arrangement with one John Dilley, jr., to act as agent for the plaintiff corporation in vending its farm implements, one of its agents, Mr. Maltby, reduced the understanding to writing in the form of an agreement between the company and Dilley, and the latter signed it, and Maltby as agent signed the name of the company. At this stage of the transaction the defend ant, by a written undertaking indorsed thereon, agreed to guaranty Dilley’s performance.
This suit was brought on that guaranty and the circuit judge directed a verdict for the defendant.
The writing signed by Dilley contained a provision that it should not be in force until approved and countersigned by the plaintiffs manager, Mr. MofEet,* and Maltby, subsequent to the guaranty, sent the paper forward for his approval and countersign. He withheld his approval from it as it then was, and in the shape it bore when the defendant became surety, and proceeded to introduce certain changes. Having made such alterations as he thought proper, he approved and countersigned it in its new form and sent it back. The declaration counted on it as thus altered and amended by the plaintiffs manager, and. laid the undertaking of defendant as a guaranty of Dilley’s performance thereof. According to the writing between Dilley and the company before the alteration, and as it stood at the time the defendant became surety, the company was to supply Dilley with new machines and there was no provision for his taking any others. But amongst the chánges, introduced by MofEet, there was one binding Dilley to take certain old machines in the hands of a former agent and which had been left over from the previous season.
The chief question is whether this alteration was material; because if it was, there are two reasons at least against disturbing the judgment — Fvrst, the contract proved is not the same as the contract alleged; second, the alterations of the principal agreement not having been consented to, nor ratified by defendant, operated to release .him, even though Dilley, the principal, may have assented.
That the alteration referred to was material is considered clear. If we read the guaranty as though it contained the principal writing in the form it bore before it was changed, and again read it as though it embraced the document as altered, we cannot fail to see that the obligation imported by the terms is not the same in both. By the- alteration the arrangement is made to apply to a new subject-matter and the consideration secured to the company for its own undertaking is changed and increased. As the paper was first framed the defendant could not be held for anything done by Dilley respecting the old machines, because the arrangement as written did not extend to them. But the meaning of the addition made by Moffet is to include them and as a Consequence to enlarge the liability of the defendant. The case appears so plain on principles which are familiar that we do not deem it needful to enlarge upon it or to cite authorities.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Complainant filed his bill to quiet title to certain lands claimed under an execution sale under a judgment rendered against the Detroit & Milwaukee Kailway Company. A tax title is also set up, but it is not important, because if the lands were not at the time the tax was assessed the property of the Detroit & Milwaukee Kailway Company they were not taxable. No dispute is made by counsel concerning the regularity of the execution sale, and therefore, for present purposes, it may be assumed to be valid, although, for the reason mentioned, we have not examined into it.
If the property belonged to the railway company, it was because it devolved upon the corporation under act No. 126 of the Laws of 1857 (Laws 1857, p. 346) disposing of the congressional land grant to Michigan in aid of railroads. The facts, therefore, require to be referred to somewhat specially.
The Detroit & Milwaukee Kailway Company was a chartered corporation, and not organized under general laws. Its railway extended from Detroit through Owosso, and was to terminate at Grand Haven. It was, at the time of the state law of 1857, finished some distance west of Owosso, and it was in 1858 or 1859 completed to Grand Haven. It was under mortgages by the foreclosure of which the road and appurtenances passed in 1860 to another company.
In 1856, Congress passed a law whereby there was granted to the State of Michigan, conditionally, the right to appropriate alternate sections within a certain distance from the lines of certain railroads projected between given points, with a right to select other lands within a broader range to make up deficiencies caused by private rights or government appropriations. Among the roads to be built were men tioned roads from Grand Haven and Pere Marquette to Mint, and thence to Port Huron. U. S. Laws 1855-6, pp. 19, 20.
The Act of Congress in giving this privilege to the State made the lands subject to disposal by the legislature “ for the purpose aforesaid, and no other.” These purposes were that the lands should “ be exclusively applied to the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever.”
The law further enacted that the lands “ shall be disposed of by said State only in manner following, that is to say: That a quantity of land not exceeding 120 sections, for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold; and when the Governor of the State shall certify to the Secretary of the Interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not to exceed 120 sections for each of said roads having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles of each of said roads may be sold; and so from time to time until said roads are completed; and if any of said roads are not completed within ten years, no further sales shall be made, and the lands unsold shall revei’t to the Hnited States.”
Instead of selling the lands and using the proceeds, the State adopted the policy of allotting the lines to companies, and letting them have the lands as they earned them. In 1857 the statute first referred to was passed to take immediate effect from February 14th, and the principal questions in the case depend on the effect of this law, and action under it.
It will be perceived that the lands were so appropriated by Congress, that each twenty miles of road had set apart for it lands lying opposite to it so far as not already sold, and that in disposing of the lands they could not be sold except in portions of twenty miles in boundary. But the State could sell such a tract not exceeding 120 sections in the outset, but thereafter was confined to such sales as twenty miles lengths of road were completed and certified by the Governor to the Secretary of the Interior. Provision was thus made whereby the United States authorities were to have constant knowledge of the progress of the work, and of the lands that remained and belonged to the government at the end of ten years, when the surplus was released from the appropriation.
The State law of 1857 (Laws 1857 p. 346) undertook to dispose of the land grants — as already suggested — not by selling the lands directly and building roads, but by setting them apart for the benefit of several railroads already projected or in process of construction. In doing this the original statute reserved from appropriation until the completion of the roads, a portion which the State itself could have used. While the Act of Congress contemplated that the State might act directly, yet the State Constitution stood in the way, and limited the power of the State in a manner which required attention in applying all of this legislation. By section 9 of article 14 of the Constitution it is ordained that “ the State shall not be a party to or interested in any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.” The result of this restriction and of the Act of Congress, is that in dealing with this fund, the State — although having very broad discretionary powers —was nevertheless acting in some respects, as a trustee, and this trust relation is important in construing the action in dispute on this record.
The State by the act referred to accepted the congressional grant, and all the restrictions and the terms and conditions contained in the Act of Congress. It then proceeded to vest “fully and completely” in various railroad companies “so much of the aforesaid lands, franchises, rights, powers and privileges, as are or may be granted and conferred, in pursuance of said Act of Congress, to aid in the construction of” such of the roads as covered specified lines provided for in the grant. The lines from Grand Haven to Flint and from Flint to Port Huron, were divided at Owosso, the Detroit & Milwaukee Railway Company taking the western division, and the Port Huron & Milwaukee Railway Company the eastern. The section making this apportionment contained at its close this important clause: “All and each of the several railroad companies mentioned in this section shall be subject to all the conditions, restrictions and obligations imposed upon them by this act, as hereinafter provided.”
Most of these conditions are unimportant in determining the present cause, and may be passed over briefly. Those of more immediate moment will be referred to separately.
To provide for the completion of the work directions were given concerning the quality of the structures, the use of them in accordance with the conditions of the grant, the preparation of maps to fix the line of selection, and'various specific restrictions belonging chiefly to State policy. Some of these as well as others became important, especially in connection with the fact that while the Detroit & Milwaukee Railway Company, and some others, were chartered companies, not subject to legislative discretion, most of the companies were organized under general laws, which could be changed without the consent of the companies.
By section 5 it was provided that “ each and every one of said railroad companies is required, by a vote of a majority of the directors thereof, to accept the lands, franchises, rights, powers and privileges hereinbefore conferred, which acceptance shall be embodied in a written instrument, signed by the president, and attested by the secretary and corporate seal of said company; and in such acceptance, each of said companies shall severally assent and agree to the provisions and requirements of this act, which acceptance shall be filed in the office of the Secretary of State of Michigan, within sixty days after the passage of this act.”
By section 8 a board of control was provided for, “ whose duty it shall be to manage and dispose of such lands in aid of the construction of the aforesaid railroads, in the manner in this act provided, and to do any and all other acts necessary and proper respecting the construction and building of said railroads, which shall be prescribed by law.” No subse quent legislation concerning this board is relevant here except the extension of its existence, which was at first limited, and the legislation of 1863 and 1865, which in continuing the board expressly ratified and confirmed all its official action theretofore had under the act of 1857. Laws 1863 p. 283 ; Laws 1865 p. 669.
Section 7 authorized each railroad company after the completion of twenty continuous miles, and after the Governor had certified to the Secretary of the interior such completion, “ then and not before ” to sell sixty sections of land included in any continuous twenty miles, and so on until its entire completion and the acceptance of the same by the board of control herein provided, when and not before, it might sell the remainder.
Section 11 is as follows: “ Should either of said railroad companies fail to accept said lands on the terms of this act, within sixty days, or fail to make the survey and maps by the first day of December next, or fail to construct its entire line of road or any part thereof, in the time and manner required, in such case said board of control shall have the power, and it is hereby made their duty, to declare said lands, so far as they have not been sold in good faith, forfeited to the State, and said board of control are hereby required to confer said lands upon some other competent party, under the general regulations and restrictions of this act.”
Section 12 declares that “ All of said railroad companies shall at all times and in all matters, be subject to the laws of this State, and to such rules and regulations as may from time to time be enacted and provided by the Legislature of the State of Michigan, in regard to the management and disposition of the said lands, not inconsistent with the provisions of this act, and the Act of Congress making said grant of land to this State, and they shall be entitled to all the immunities and privileges conferred by said laws: Provided, that nothing herein contained shall be so construed as to relinquish the right of the State to any specific tax imposed upon any railroad company within this State.”
At this time the Detroit & Milwaukee Railway Company was subject' to a tax of one per cent, on its capital stock paid in, in lieu of all other taxes.
By section 20, a tax was levied of one per cent, on the cost of each road and of its equipments and appurtenances, and provision was made for an additional tax of not more than two per cent, on gross earnings, but the Detroit & Milwaukee and Port Huron & Milwaukee Railway Companies were to be allowed a diminution of the two per cent, tax in proportion to their diminished share of lands as compared with other companies. This was becatise these roads ran through a part of the State containing a smaller amount of unsold lands.
The Detroit & Milwaukee Railway Company on the 11th of April 1857, and within the 60 days specified, filed a document adopted by the directors and signed by the president and secretary under the corporate seal, accepting all of the act of 1857 except section 12, which was declared to be in contravention of its charter, and section 20, which provided for taxation. Against these there was also a protest, and distinct refusal of assent.
On the 26th of August, 1857, the Board of Control declared by resolution that the company had not in accordance with the statute accepted the grant and agreed to the provisions of the act, and had filed no such acceptance in the office of the Secretary of State; and thereupon declared the lands forfeited to, and revested in the State.
The directors of the company never thereafter made any other resolution of acceptance, and the company never applied to the Governor or the Board to accept their road as built in accordance with the act, and no certificate was ever filed on behalf of the corporation by the Governor with the Secretary of the Interior to that effect. There was never any corporate action thereafter asserting or claiming any rights under the grant.
The only claim by complainants that is exposed to make a difference is under certain amendatory acts of the legislature passed in 1859 and 1863, and the further claim that by the act of 1857 a title was vested in the railroad companies in the shape of fee-simple only, forfeitable on condition subsequent, and that such forfeiture could only be declared judicially.
The law of 1859 contained two sections. The first purported to amend section 7 of the act of 1857, by changing “sixty” to “one hundred and 'twenty” as the number of sections to be earned by each twenty miles of road. The second section limited taxation to 1 per cent, on capital stock paid in.
There was nothing in this amendment which was designed to change any other part of the act of 1857. It did not repeal the section which required an assent to be filed in 60 days by the companies named in the act, and could only apply to companies that had, or should, become subject to its provisions. If designed — as it may have been in fact, although no court can so declare as matter of law — to conciliate particular companies, it could only do so as an inducement to future conduct, and not as a retrospective removal of disabilities. The Board of Control might perhaps find it easier to secure the building of some of the designated roads. But the Legislature could not and did not attempt to reach any company without a lawful acceptance by its directors and officers.
It is also to be noticed that this statute of 1859 did not change section 12 of the statute of 1857 which the Detroit & Milwaukee Kailway Company had made their principal ground of refusal, as bringing the chartered rights of the company further under legislative • control than they were willing to place them.
The law of 1863 (Laws 1863, p. 284) provided that such of the railroad companies mentioned in the act of 1857 as had finished twenty miles of road should have the full time allowed by the acts of Congress to finish their lines, and all forfeitures incurred by such companies under the laws of this State were thereby waived. Special provision was made for some particular roads.
The original act had declared forfeitures unless twenty miles should be finished in each year, and unless the whole roads should be finished in seven years. Eoads in the Upper Peninsula, and some particular roads, were made subject to special provisions. The Act of Congress gave ten years for completing the road, and made no provision for less than the whole, except that land was only earned in twenty-mile sections.
It is quite plain that the object of the act of 1863 was merely to aid such companies as had accepted the conditions of the act of 1857, but had delayed finishing their roads.
So far as the claim is coneeivned that these companies without acceptance obtained titles in fee, we think it has no legal basis. We have held and we have no doubt that such companies as accepted the statute, obtained thereby rights which could not be destroyed except by their own neglect. Johnson v. Ballou, 28 Mich. 379; Att'y Genl. v. Lake Superior Ship Canal Co.32 Mich. 233.
But the title of the State was itself subject to some conditions before a complete and absolute right could exist in any of these lands except the first 120 sections, and the State never transferred to any of the railroad companies the right to any lands not to be earned by building their roads. Under the Act of Congress the State could not sell any of these lands until the Governor had certified to the Secretary of the Interior that the appropriate twenty miles had been completed. While, therefore, the State could, as we have held in the cases cited, make such disposition in such manner as it saw fit of the lands granted, it could onty be for the purposes and on the conditions prescribed by Congress. These conditions are all distinctly embodied in the statute of 1857. Not only did the State, as it was bound to do, impose these conditions, but it refused to allow any company to take the lands at all without a distinct and express act of acceptance.
This acceptance was the only act whereby any of these companies was brought into contract relations with the State at all. The law did not assume to force the grant upon any company, and the contract could not bind either party until both assented to the same agreements and conditions.
There is no occasion to discuss the other questions raised on a different theory. It is enough for ou-r present purposes to say that common-law rules cannot override statutes, and that the State, while acting within the Constitution, can impose its own conditions on its own grants.
We think no title vested in the Railway Company, and that the bill was properly dismissed.
The deci’ee must be affirmed with costs.
Makston, C. J. and Graves, J. concurred.
Cooley, J. did not sit in this case. | [
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] |
Marston, C. J.
March 1st, 1876, John Krebs mortgaged certain goods and chattels to Chester B. Smith, who, April 8th following, assigned the debt and mortgage to Henderson, Smith & Co., defendants in error. March 29, 1876, Krebs sold his interest in the property, subject to the mortgage, to Henry Martins. McLaughlin, as deputy sheriff, by virtue of an execution against Martins, levied (upon the property May 15th, 1877. The mortgage to Smith was duly filed, and on the day of the levy, Smith, one of the defendants, made and filed an affidavit showing the amount due on the mortgage. There was evidence introduced tending to show that Martins abandoned or turned the property over to defendants. The time this was done does not clearly appear, and is, in the present aspect of the case, perhaps immaterial. The court excluded the defense because notice thereof was not given with the plea of the general issue. Fry v. Soper 39 Mich. 727.
I think there is no injustice in requiring notice of such a defense to be given. It affords to the plaintiff an opportunity to make an examination before trial of the validity of the judgment and proceedings relied upon, and distinctions drawn between cases where such notice must be given and where it need not be, only tend to confusion.
My brethren are of a different opinion, however, and think this case differs from Fry v. Soper. In that case the assignment by the attachment debtors to Soper was attacked as fraudulent, while in the present case it is only the interest of the mortgagor that is sought to be reached, and the rights of defendants under the mortgage to Smith assigned to them, are not questioned, and these defendants cannot be prejudiced by the levy and are not entitled to such notice.
The judgment must, therefore, be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Graves, J.
On the 24th of January, 1879, the complainant obtained a verdict against defendant in the sum of $1000 in a suit for libel. He procured an order staying proceedings thirty days, but after the termination of the stay and on March 25th judgment was entered on the verdict. It appears that in 1840 he became grantee of a farm of sixty two and a half acres in the township of Ypsilanti and in 1865 the grantee of a house and lot in the city of Ypsilanti; and that both pieces of property stood as his on the records of the register of deeds until the 18th of February, 1879. On that day, however, and whilst the stay of proceedings was running, two quit-claim deeds from him to his wife, the defendant Esther, being one for each parcel, were placed on record. The deed of the city lot was dated March 7, 1871, was witnessed by Thomas Ninde and Ohauncy P. Worden and acknowledged before Judge Ninde the next day, March 8,1871. The deed of the farm was dated March 28, 1873, was witnessed by James Arnold and by Mr. Babbitt, now one of complainant’s counsel, and was acknowledged before the latter gentleman on the same day. March 4, 1879, Mrs. Day conveyed the whole property to their son, the defendant 'William Day, who on the 22d mortgaged the same witlf other lands to Daniel Forbes for $3000. May 5, 1879, complainant sued out an execution on her judgment returnable the first Tuesday of August, and on the day of its issue the sheriff levied on the house and lot and the sixty-two and a half acres, and filed the usual notice in the office .of the register of deeds. On the 3d of July, 1879, and whilst the-execution was still running, complainant brought this bill' to assist it.
We notice that it contains some matters which are only appropriate where the object is to reach classes of property that are not liable to seizure on execution, but there was no foundation of course for anything pf that kind. The execution being still out and active at the time the suit was commenced, no necessity was legally apparent for seeking through equity to discover and subject to the judgment any nonleviable interests. Smith v. Thompson Walk. Ch. 1; Williams v. Hubbard id. 28; Tyler v. Peatt 30 Mich. 63.
The bill charged that no delivery of the deeds to Mrs. Day was made prior to the verdict; and that they and also her deed to William were entirely devoid of consideration, and were in fact given and received with the intent to prevent collection of the verdict. The defendants answered and fully denied these allegations, and both parties proceeded to adduce testimony at great length. The circuit judge came to the conclusion that in respect to the farm the case was made out, but not so in regard to the city lot, and he decreed accordingly. The complainant acquiesced, but the defendants took an appeal to this court.
It thus appears that the city lot is not a subject of discussion in this Court, and that the controversy is only whether the two deeds given for the farm ought to be put out of the way of complainant’s execution, and the only essential issue on this inquiry is a very narrow one. It was naturally a part of complainant’s case to contend that there was no delivery of the deed from defendant Hiram until her right had attached to question its good faith, and she accordingly charged that delivery was withheld until after the verdict, and it is needless to go further than this question. It was an obvious consequence of the position of complainant that she had the burden of proof and was bound to support her allegations by satisfactory evidence. Darling v. Hurst 39 Mich. 765. And the record shows with what diligence and ability the learned counsel labored to satisfy the requirement.
There is little scope for investigation, and a minute discussion of the testimony would not be profitable. A careful examination of the record with the aid received from counsel has led us to a result which we consider indubitable. On the part of the defense we have positive statements that delivery was actually made in 1873, and also other statements by way of corroboration. The case in evidence for complainant contains statements of declarations and admissions of the different defendants made at various times and under various circumstances tending to negative the idea that the deed was considered as having taken full effect, and besides these items there are incidents tending to create belief that the elder Day and wife did not regard the title as having passed at any time prior to the verdict. But when this testimony is sifted, and full allowance is made for the elements of fallibility in that part of it relied upon to prove admissions and declarations made casually in conversation in former years, we are quite unable to regard it as having much value on the point at issue. 1 Greenl. Ev. § 200 ; Pawling v. United States 4 Cranch 219.
Some portion of defendant’s testimony is exposed to the same consideration. Moreover, the most material oral evidence on that side is not derived from impartial sources. It comes from parties or persons closely related, and in- view of the history and surroundings of the case this fact must necessarily have influence. On the whole we repose our chief confidence in the natural and legal import and significance of certain incontestable facts. That the deed was in truth exe cuted and acknowledged on the 28th of March, 1873, and that the grantor immediately carried it to his residence where the grantee was, cannot be questioned. That it was in readiness for delivery, and that delivery was entirely practicable, is certain, and it is equally certain that a delivery actually took place either at that time or at some other on or before the 18th of February, 1879, and the further fact must be admitted that no occurrence is proved to have taken place at any time near the date of the deed to frustrate or hinder delivery. Now in all cases of this class, whatever physical disposition of the instrument may have been made, the fundamental inquiry is whether the minds of the parties were agreed in regarding the deed as presently the deed of the grantee, and without any condition or reserve. And as this is a suit in equity the court must conduct this inquiry, and make the proper deductions from the circumstances, and the opinion formed is that the facts just noticed are sufficient to authorize the inference that the union of minds required to effectuate delivery really occurred on the 28th of March, 1873. The following authorities explain the subject, and support the view taken : Doe v. Knight 5 B. & C. 671; Clavering v. Clavering 2 Vern. 473; Exton v. Scott 6 Sim. 31; Fletcher v. Fletcher 4 Hare 67; Brown v. Brown 1 W. & M. 325; Scrugham v. Wood 15 Wend. 545; Brinckerhoff v. Lawrence 2 Sandf. Ch. 400 406 ; Dempsey v. Tylee 3 Duer 73 95, 96; Roosevelt v. Carow 6 Barb. 190; McLean v. Button 19 Barb. 450; Moore v. Hazelton 9 Allen 102.
Having thus found on the facts mentioned a ease of prima facie delivery long prior to the verdict, it remains to observe that the complainant has not succeeded, by virtue of the other evidence pro and con, in making out a case entitled to weigh against it. No doubt the question on the delivery of the deed of the house and lot is a plainer one, and so far as the result is concerned, was correctly disposed of. This reference is made to that part of the case because the parties seem to have taken it for granted that the determination against the complainant, though not appealed from, was yet open and a subject for discussion.
Several topics noticed by counsel are not material, and call for no remarks.
It follows from wbat has been said, that the decree must be reversed, and the bill be dismissed, and that defendants will be entitled to the costs of both courts.
The other Justices concurred. | [
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Campbell, J.
Ratlrs sued out an attachment and garnishee process against John Kraft as debtor and Frederick Kraft as garnishee, on June 27,1879, returnable July 7,1879. The officer having the writ served it on the garnishee and returned it not found as to the principal defendant on the day of its issue.
On the return day the garnishee appeared, but the principal defendant did not. Mr. Loud appeared as an attorney and moved to quash the proceedings for the illegality of the return. This'was overruled. The garnishee’s answer showed that he had nothing in his hands, except a draft payable to the order of defendant’s wife, and which, therefore, belonged to her in law and corfid be collected only on her order.
After the motion to quash was decided and an adjournment had been made, the justice allowed the officer to change his return ex parte and without any showing, by dating it July 2d, and averring he had not been able to find defend ant, and had served a copy of the writ on the 27th of June on the garnishee.
James LL. Pound, for the motion.
Judgment was thereafter rendered on the adjourned day, plaintiff proving his account, and the justice as he returns basing his judgment on the garnishee’s disclosure.
The return is somewhat ambiguous on several matters, but we have no doubt the justice treated it as a case of attachment not personally served. No plea was ever put in, and the motions made and denied would have been senseless if there had been any appearance by the principal defendant.
As the writ was actually returned into the hands of the justice on the day of the issue, and never left his custody, the amended return even if good on its face — which it was not — could not have been allowed to give jurisdiction. There is no pretense that a writ returned not served as soon as issued, can be of any validity to bind a party. Withington v. Southworth 26 Mich. 381; Nicolls v. Lawrence 30 Mich. 395. Neither was the garnishee’s disclosure evidence that any liability existed in him on which a responsibility could attach. The circuit court so held.
The proceedings were void and should have been vacated. The judgment of the circuit court affirming the principal judgment must be reversed with costs of both courts.
The other Justices concurred.
Afterwards, at the January term, 1881, the defendant in error moved for a re-hearing and a modification of the judgment, and urged that costs should not have been awarded against him. Submitted and denied January 4, 1881.
The Court said they could hear no argument on the merits, which could only come up on the re-hearing, if granted. They denied the motion, as, in deciding the case, they had considered the questions raised. They also held that a question of the re-taxation of costs could not be raised on a motion for a modification of judgment. | [
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Graves, J.
McNaughton brought an action of ejectment against the railroad company for certain premises in Jackson and the usual plea to the merits was regularly interposed. Subsequently and after the lapse of a term the company by leave of the court introduced a new plea which set up a conveyance by the plaintiff, after the last continuance, of all his estate in the premises to Mary B. McNaughton. The plea prayed judgment that the plaintiff be not allowed to further maintain the action. The plaintiff filed a general demurrer to the plea and demanded judgment for the premises and the railroad company joined in the- demurrer. The circuit court sustained the demurrer and entered final judgment that the plaintiff recover in fee, that being the estate claimed in the declaration. The case comes up on a writ of error brought by the railroad company.
Formerly ejectment was a mere possessory action which concluded no one either as to the title or possession exclusive of the period between the day of the demise and the recovery. The very party defeated might immediately bring a new action and litigate relative to the possession as often as he thought proper. In the form which it acquired later the machinery of the action was made to embrace a series of legal fictions in the place of certain of its early actualities. The real claimant was supposed to have entered on the land and there made a lease, and thereupon to have retired leaving his lessee in possession under the demise and that the person previously in possession or some casual ejector came'thereupon and expelled, ejected or ousted him. These supposed proceedings were necessary to' satisfy the theory of the action, and being assumed, a ground was presented for inquiring into the right of possession, the contest being in form between a fictitious lessee and the ejector, but in substance and effect between the lessor, the real claimant, and the true tenant or adverse holder. This mere glance is hardly sufficient to conYey a distinct idea of the nature of the former action. But a full explanation would be tedious and the case does not call for it. The learning of the bar will supply everything.
It was a part of the same system of law, which still prevails in New York and in most of the other states, that a conveyance by a party out of possession and during the existence of an adverse possession against him, w¿s void. This principle was not allowed, however, to operate against the actual or ideal lease by the real claimant in ejectment. But wherever it obtains it is an insuperable obstacle’to a conveyance by the plaintiff in ejectment. A mere release has not been considered as within the rule. The decisions can only be understood by reading them in the light of the law relating to real property and of the procedure for its recovery where they are made
Where a general demurrer was put in to a plea puis darrein, continuance, setting up that one of the two separate lessors had released to the defendant, the court, in sustaining the demurrer, observed that as long as the remedy by ejectment was held a legal fiction and not a mere equitable remedy it seemed impossible to maintain the plea which was in effect that, after the lessor had made a lease and parted with his interest to the lessee, he made a release of the lessee’s interest. Doe ex dem Byne v. Brewer 2 Chitty 323.
In Robinson v. Campbell 3 Wheat. 212, the lessor conveyed pending the action. The deed was offered in evidence and refused, and the question was saved by an exception. The court said,' although an action of ejectment is founded on fictions, yet to certain purposes it is considered in the same manner as if the whole proceedings were real; for all the purposes of the suit the lease is to be deemed a real possessory title. If it expire during the pendency of the suit the plaintiff cannot recover his term at law without procuring it to be enlarged by the court, and can proceed only for antecedent damages. In the present case the lease is to be deemed as a good subsisting lease, and the conveyance by the plaintiff’s lessor during the pendency of the suit could only operate upon his reversionary interest, and consequently could not extinguish the prior lease. The existence of such a lease is a fiction ; but it is upheld for the purposes of justice, and there is no pretense that it works any injustice in this case. See also Jackson v. Bell 19 Johns. 169; Jackson v. Leggett 7 Wend. 377 ; Hubbard v Trustees 2 J. J. Marsh. 81.
The rule for invalidating a conveyance in case the grantor is not in possession, and the premises are held adversely by some one other than the grantee, is not in force in Texas (Lee v. Salinas 15 Texas 495) nor in Ohio (Lessee of Hall v. Ashby and Craven 9 Ohio [Ham.] 96), and it is not in force here. Comp. Laws, § 4209. The Supreme Court of Texas held on full consideration, in the case cited, that conveyance by the plaintiff pendente lite was not an interruption of the suit, and in Lessee of Damson v. Porter, the Supreme Court of Ohio decided that a deed by the lessor of the plaintiff, made after suit was brought, was not evidence to defeat recovery by the plaintiff (2 Ohio [Ham.] 304), and the ruling was subsequently approved in McChesney's Lessee v. Wainwright 5 Ohio (Ham.) 452.
Our statute has substantially superseded the old action of ejectment with its fictions and wearisome forms (§§ 6208, 6209), and has given under the same name a much broader and more potent remedy. As marked out by the Legislature it has the effectiveness of a real action. It is a proceeding to try titles as well as to determine who has the right of possession. It is made applicable to cases where formerly a writ of right was the appointed remedy, and it is the only action for the determination of titles to land.
The common law made it a general rule that the judgment in a real action should be rendered upon the title as it was at the date of the writ (Hooper v. Bridgewater 102 Mass. 512;, and according to the statute the question on the trial in our ejectment is, whether the plaintiff had a right to recover at the time of the commencement of the suit (§ 6206), and the right of possession to be established is referred to the same time. § (5226.
The verdict must in all cases specify the estate or right belonging to the plaintiff, whether it be in fee or for life or otherwise (§ 6231, subd. 7), and in case the plaintiff’s estate expires after the commencement of the suit and before trial} he is still entitled to judgment for his damages. § 6232. In providing for the termination of the plaintiff’s right or title the transfer of it is not intended. This clause contemplates those cases where terms and rights expire or come to an end and not to cases where the right or title is simply passed from one to another. The provision had its origin in New Yorlc where the law was against a transfer.
The judgznent is made operative upon the title as against the defeated party and all others claiming from, throzzgh or under him by title accruing after the commencement of such action, unless in case of a new trial. §§ 6238, 6239. It relates, therefore, to tlie comznencement of the action. An alienation by the defendant after the commenceznent of the szzit, if he was in possession, or in receipt of the profits, is not allowed to bar or delay proceedings. § 6392.
In view of the nature of the action as it exists here, and considei’ing the force and bearing of the provisions specially referred to, it seezns impossible to carry out the statute, and at the same time constrae the plaintiff’s conveyance pendente lite as a bar to the further prosecution of the suit. It is possible that eventualities may disclose embari’assments which are not so evident now. But, be that as it may, the meaning of the action, as we find it, is too strong for the plea, and the judgment must be affirmed with costs. The case will take the usual direction to enable the company to sue for a new trial under the statute, and to allow such other proceedings to be had as may be proper in the court below.
The other Justices concurred. | [
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] |
Marston, C. J.
This case comes before us upon a very unsatisfactory record. The defendant levied upon certain property by virtue of an execution against James Richardson, the husband of the plaintiff, and recovered a judgment for the full amount of his lien. James Richardson had in 1876 leased a farm from James Johnsonj under which one-half the stock and crops raised thereon belonged to Johnson. James Richardson on December 23, 1878, gave to James Johnson a chattel mortgage upon his, Richardson’s half, to secure the payment of $593. December 23, 1878, Richardson and Johnson had a settlement. Richardson sold to Johnson his interest in the property, and at the same time Johnson leased the farm upon similar terms to Mrs. Richardson, the plaintiff, sold her the property, and took back a mortgage thereon for $593.20, due in one year. There was no change in the possession of the farm and James Richardson continued to cultivate it as before. Certain crops were grown thereon while Mrs. Richardson held the lease, and, although the date of the levy is not given, it was upon the crops thus raised, and upon some of the personal property conveyed to her by Johnson, that the levy was made.
Mrs. Richardson claimed that some of the property levied upon not only belonged to her but that her husband never had any interest therein, and the jury seems to have so found. She also claimed that one undivided half of the other property levied upon was that of Johnson, in wlxich her husband had no interest at any time, and that as to the undivided half which she acquired from her husband through Johnson the amount of the chattel mortgage should be deducted, and the defendant be entitled to a judgment for the balance only, if anything.
It is almost needless to add, after what has been said, that the sheriff claimed that the sale from James Richardson to Johnson and by the latter to Mrs. Richardson were fraudulent and void as to the creditors of James Richardson. Under the evidence and the verdict the jury must have found the mortgage given by James Richardson to Johnson not genuine, as such questions were submitted to the jury, although not a particle of evidence can be found, or even a claim made, questioning that instrument.
We need not go beyond this, at present. For this error the judgment must be revei’sed with costs and a new trial ordered.
The other Justices concurred. | [
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Marston, C. J.
The law in recognizing the incapacity of infants to enter into certain contracts and declaring such contracts voidable does so for the infant’s protection. Their contracts are not void but voidable, and it is for the infant to avoid the contract or ratify it, and not within the power of a stranger — certainly not of a wrong-doer — to set up the infant’s incapacity to contract as a protection to himself. The contract, though voidable at the option of the infant, is valid as to third parties who are strangers to both parties to the contract, and not claiming under either.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Marston, C. J.
The decree of tbe court below dismissing the bill of complaint was unquestionably correct. The testimony of complainant’s witnesses, standing alone, would fall far short of establishing a case sufficient to justify a court in severing the marriage relation between these parties. The testimony we need not discuss. Much of it bears no relation to the issue and is disgusting in character.
The decree must be affirmed.
The other Justices concurred. | [
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Marston, C. J.
The plaintiff below brought ejectment to recover the possession of certain real estate, claiming title thereto under an execution sale against Mary L. Waldron. The plaintiff farther undertook to show that the defendants were in possession under sundry mesne conveyances from Mrs. Waldron, and that they were not, nor were any of the parties through whom they claimed, bona fide purchasers.
It appeared that Mrs. Waldron conveyed the premises to her daughter, Mary J. Gale, September 23d, 1876, and that this deed was recorded July 16, 1877. Mrs. Gale conveyed to Martha E. Orr July 31, 1877, and Mrs. Gale, being then a minor, after becoming of age, and on April 25, 1878, again conveyed to Mrs. Orr. These deeds were recorded May 17, 1878.
The judgment under which plaintiff claimed was rendered November 17, 1876. Execution issued thereon November 24 and a levy made the same day; sale made thereunder June 1, 1877, and the sheriff’s certificate thereof, dated June 4, 1877, was recorded the same day, in accordance with the provisions of Act 123, Pub. Acts 1875, p. 154.
It will thus be seen that this certificate was recorded previous to the purchase by Mrs. Orr, and it therefore becomes important to ascertain whether such record was constructive notice of Mrs. Bearss’ rights acquired under the execution sale.
In Columbia Bank v. Jacobs 10 Mich. 349, it was held that an attaching creditor was not a purchaser within the meaning of the registry laws, and that filing a copy of the attachment, with a description of the real estate levied on, in the office of the register of deeds, would not be constructive notice to subsequent purchasers. This was followed and applied under somewhat different circumstances in Millar v. Babcock 25 Mich. 138 and Campau v. Barnard id. 381.
When this case was submitted I was quite strongly of opinion that the same construction must be given the act of 1875, because it does not in express terms declare that such record of the sheriff’s certificate shall be constructive notice, while it does point out and declare the purposes for which it may be used. A more careful examination however satisfies me that such record must be considered and held to be constructive notice.
The statute relating to deeds and conveyances and the recording thereof, does not in explicit terms, declare that the record of such conveyances shall be constructive notice to subsequent purchasers, but such has ever been held to be the legal effect and operation thereof. The statute does declare that conveyances not recorded shall be void as to subsequent purchasers, etc., in good faith. The argument advanced against the record of the sheriff’s certificates being constructive notice is, that the general laws relating to the recording of conveyances can not be held applicable to a statute subsequently passed unless so declared, and that the recording of the certificate should be given no greater or other force than the filing thei’eof under the old law would have, except as otherwise provided in the amendment.
If the Legislature had originally in specific terms, declared that the record should be constructive notice, or in subsequent legislation providing for the recording of instruments, had so declared, and we found the omission in the act of 1875 for the first Júme, the argument advanced would be very strong.
Perhaps this has been done in the section relating to the record of defective instruments, § 4253; but that such has not generally been considered necessary an examination of §§ 4254-4265, inclusive, will show ; and yet I think few if any would claim that the record in these sections provided for or authorized, would not be constructive notice. The act of 1875 is in the same general language and in my opinion should have the same force and effect.
The terms “ purchaser ” and “ conveyance” are broadly defined in §§ 4236, 4237, and certainly a party who has purchased at an execution sale, is entitled to protection between the date of the sale and the time when he can receive and record his sheriff’s deed. He has something more than a mere lien upon the land: he has in effect, by a satisfaction of the execution to the extent of his bid, if the execution creditor purchases, paid for the land, and if a stranger has actually paid for it, and in either event, as he cannot obtain possession, is entitled to the protection which the registry laws aim to give parties. In my opinion they then become purchasers within the meaning of our laws, even although they have not received a deed of the premises. I do not understand the case of Columbia Bank v. Jacobs as holding that the person bidding off the property at an execution sale would not be a purchaser, until he had received a sheriff’s deed, although so stated in Millar v. Babcock, even if such questions were material in either case.
I am therefore of opinion that the record of the sheriff’s certificate was constructive notice of the interest which Mrs. Bearss acquired as a purchaser at the sheriff’s sale, and that Mrs. Orr was bound thereby.
While the above was considered the most important ques tion in the case, yet a number of others were raised, which may be noticed very briefly.
It appears that the property had been advertised by the sheriff, sold and bid in by the plaintiff in the execution, but owing to an error in the notice this sale was abandoned. The error was in the date of the time fixed for the sale. The sale was made in March, 1877, but in the published notice of the sale, the time advertised for the sale to take place was March, 1876. It may be that the mistake was not fatal, but it was abandoned and there is nothing in the case tending to show that the execution debtor was. prejudiced in this, or that the subsequent sale could be held void in consequence thereof.
It also appeared that two executions issued the same day, one directed to the sheriff of Tuscola county, and what was called an alias to the sheriff of Huron county. The lands in question are situate in Tuscola and were sold under the execution issued to the sheriff of that county. No return has been made by the sheriff of Huron. It is claimed that two executions could not legally be issued at the same time under act 105, Sess. Laws 1847, p. 172, and that if effect could be given to either, it must be to the one sent to Huron, as the execution debtor had personal property in that county, and farther that the return made by the sheriff of Tuscola does not show that the debtor had no personal property upon which he could levy, and that unless such was the fact he could not levy on the real estate. The issuing of two executions, while irregular, would not render the sale made, when attacked in this case, void; neither would the omission. of the officer to set forth in his return a want of personal property be fatal. It may very fairly be presumed that the officer performed his duty, and without saying what the effect would be should the contrary appear on the trial, it is sufficient, for the present case, that no attempt was made to show that the execution debtor did have any goods and chattels in Tuscola county, and the officer was not bound to make search beyond his bailiwick. This renders immaterial the objections taken to the testimony of Sengra and others as to the property in Huron county or value of the same, although proof of what the property actually sold for would be competent as tending to show the value thereof.
Several questions were raised as to defendant’s want of notice of facts tending to show the conveyance from Mrs. Waldron to her daughter, Mrs. Gale, was fraudulent. The plaintiff having succeeded in recording the sheriff’s certificate prior to the record of any of the conveyances from Mrs. Waldron or her grantees, she is presumed to be entitled to recover until the contrary appears, and the burthen of proof would be upon the defendants to show that they were bona fide purchasers, or that they derived title from a bona fide purchaser. Godfroy v. Disbrow Walk. Ch. 260; Shotwell v. Harrison 22 Mich. 410. The defendants evidently proceeded upon the theory that the burthen was upon the plaintiff to prove that they were not. We shall not therefore enter upon a discussion of the questions raised upon this branch of the case, as they also had constructive notice of the record of the sheriff's certificate and upon a new trial the questions are likely to assume a different aspect.
We. discover no error in the record. The judgment must be affirmed with costs, and the record remanded for further proceedings under the statute.
The other Justices concurred.
Revised Statutes of 1846, ch. 106, sec. 10 is as follows: Executions, whether against the body, or against the property of any party, may be issued at the same time, to sheriffs of different counties, but no execution against the body of any party shall issue, while there is an execution against his property not returned, nor shall an execution against the property of any party be issued, while there is an execution against his body unreturned, unless by order of the court.
Act 105 of 1847 “ to amend the Revised Statutes of 1846 ” provides in sec. 13, p. 172, “that chapter one hundred and six, section ten, he so amended that but one execution shall issue at the same time.”
No attempt is made in the compilation of 1857 (§ 4448) or of 1871 (§ 6084) to incorporate the amendment with the original statute; it is introduced in a foot note to the section, which remains as originally worded, except that in the Compiled Laws of 1857, the words at the same time are italicized also. | [
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Graves, J.
March 15, 1879, Charles E. Mason sent by the American Express Company from Detroit a package of $800 consigned to the plaintiff at Alpena. The defendant was then sheriff of Alpena county and held for collection an execution from the circuit court of that county in favor of Bradford & Cady and against said Mason and one Luce for $632.82, and as the wagon of the-express messenger was in front of the postoffice in Alpena on its way to the express office the defendant discovered the package lying on the seat by the driver and immediately seized it on the execution. This was in the afternoon of the 19th of Max-ch. He opened the package the next morning and applied so much as necessary of the contents to satisfy the execution, and offered the remainder to the plaintiff who refused to accept less than the whole amoxmt and immediately brought replevin.
No seizure was effected on the writ of replevin, and under the rulings of the circuit judge the plaintiff failed to recover. He complains that errors were committed to his prejudice. The objections stated are very numerous but many of them are irrelevant, and most of the others are so plainly-without merit that they are not pressed.
It is expedient to bear in mind the relations of the parties and the character of the action. It is not between the consignor and consignee nor between either of them and the carrier. Neither is it founded on the contract for carriage. But it is a case of replevin where the consignee has brought suit as owner for the possession against a stranger who has dispossessed the carrier. The action is avowedly based on the right of property and possession.
Mason & Luce carried on business at Alpena, and the plaintiff, as he testified, did “ pretty much all of the office business and a great deal of outside business.” He was their agent. There was evidence tending to show that he had advanced from time to time for the concern during the preceding winter something more than $800, and that it was arranged between him and Mason that the latter should send him the money by express to repay such advances, and that the package in question was forwarded pursuant to that arrangement. There was also evidence tending to show that the money was forwarded to be received by the plaintiff as the agent of Mason & Luce, and. not as his money, and other evidence tending to negative his ownership.
From what has been said it is qnite apparent that the question made prominent in the plaintiff’s brief relative to the defendant’s right to seize money on execution when in the charge of an express company and in the course of being carried from the consignor to the consignee is in no manner involved and-is altogether immaterial. The controversy is not between the execution debtor, or one in his shoes, and the officer. The position taken and maintained by the plaintiff is that on the consignment and dispatch of the money it became his property and was at his risk. He insists that it belonged to him exclusively at the time the defendant made the seizure, and the establishment of this proposition he makes essential to his recovery.
Now if he did not own it, the question of its liability to execution is unimportant. Iiis want of interest is fatal on his own theory. On the other hand if he did own it, the question is equally uncalled for. Because the only execution connected' with the transaction was not against him nor leviable on his property. Therefore the point concerning the legal practicability of taking money on execution whilst in such custody is to be laid out of the case. The event of the action could in no manner be influenced by it. As already observed the vital question which the jury had to settle was whether, at the time the defendant seized it, the money did or did not belong to the plaintiff. But in order to reach a conclusion on that inquiry it was necessary they should consider not only the evidence by the plaintiff that he was the owner, and the evidence of others of his admissions that he was'not; but also the circumstantial grounds of inference-That the package was dispatched as the money of Mason, and in order that it should be received by the plaintiff and disbursed in his character of agent in the affairs of Mason & Luce.
If the latter explanation was found to be the true one the necessary consequence was that it indirectly but conclusively negatived the plaintiff’s ownership and right of action. It was no less the duty of the jury to judge for themselves in regard to the credit of witnesses than it was to look into their own minds for the state of belief which was generated by the facts and circumstances. There was nothing to which the law had assigned a fixed evidentiary effect, and which was consequently removed out of the sphere of moral reasoning. Without withholding from the jury anything pertinent, the judge explained the claims made on each side, and submitted the case on the only issues which were involved in it.
The main part of the charge was as follows:
“ The defendant’s theory of this case is that on account of the relations which existed between Mason, Luce & Co. at the time of making this affidavit in replevin, and for sometime previous to that time, that this money was not sent at that time for tbe purpose of paying Nicholson, but was sent for the purpose of being used in the business of the firm, in paying off the men; and they offer in evidence the admissions and declarations of Nicholson, as bearing on the probabilities of the case as to whether Nicholson was really the owner of that money at the time when he brought this action of replevin, or whether it belonged to Mason, Luce & Co.
“ The whole testimony in the case goes to you together, gentlemen. You will consider it all for what you deem it to be worth, and after having fully considered the evidence in all its bearings in the case, you will then ascertain what impression this testimony, taken as a whole, has made on your minds. If the impression made on your minds by the testimony in this case, taken as a whole, is that Mr. Nicholson, at the time he swore out this affidavit in replevin, was the owner of the money, that it was really sent to him by Mason for the purpose of paying the debt which Mason, Luce & Co. owed him, then he will recover in this action, in the manner in which I will hereafter state. If, however, you think the probabilities are the other way, then he will not recover anything in this action. For the purpose of informing you further in regard to the law of this case, as I understand it, I will give you some of the requests to charge.
“ But before giving you the requests I will give you the law upon one of the points in the case.
“If the jury find that Mason was owing plaintiff and it was understood between them that Mason should express or send this money to him for the purpose of paying the debt which was then owing by Mason, Luce & Co. to Nicholson, and that Nicholson so understood it and assented to it being sent by express in the manner in which it was sent for the purpose of paying the Nicholson debt, and the jury find that it was thus sent, the jury will find for the plaintiff.”
It seems to be claimed that as there was evidence for the plaintiff, and Mason & Luce were owing the plaintiff an amount equal to or exceeding the money sent, and that it was agreed between Masón and the plaintiff that it should be sent by express, and that the package in question was dispatched to the plaintiff’s address accordingly, it was conclusive on the defendant that the money belonged to the plaintiff.
Here, as elsewhere in the case, the issue made by the plaintiff is to be kept in mind. As before stated he rests his right to recover on the ground of ownership. And on this issue it was certainly competent to disprove his title, and as one mode of doing so it was competent to show that the money was owned by Mason or by Mason & Luce. If by either it was not the plaintiff’s money and his action of replevin for it was not maintainable on his own theory. This seems not to be questioned, but the point relates to the proper mode of proving their ownership and to what is claimed to be the exclusive nature of certain indicia of title. The objection seems to be that the form given to the transaction by Mason and the plaintiff was, as between the plaintiff and defendant, absolutely controlling and decisive that the plaintiff was in fact the owner.
Whatever the effect might have been in a controversy between the plaintiff and Mason, or in one between the carrier and either of them, it is a great mistake to suppose it was necessarily conclusive in this action against Dyer. He was not concluded by the appearance which they had given to the business, but was wholly at liberty to satisfy the jury, if he could, that what was set up as a transfer of Mason’s property in the money to the plaintiff was nothing more than a dispatch of the funds by Mason to the plaintiff as his agent, in order that they might be disbursed by the latter in the business and for the use of the principal. There is no question about the rule. 2 Whar. Ev. § 923 and notes.
A further consideration must be noticed. The objection assumes that the version given by Mason and the plaintiff was binding on the jury, and that nothing remained except to infer from it conclusively that the plaintiff owned the money. Of course there is no warrant for any such theory. There was evidence directly opposed to their claim that the package belonged to the plaintiff, and there were surrounding circumstances of ah unfavorable tendency which might naturally have influence.
The observations of Mr. Justice Cooley in Moliter v. Robinson have a close application. He said: “ The jury were under no obligation to believe the plaintiff’s statement, and unless it convinced their reason, they were entirely at liberty to reject it altogether. They must take the evidence with all its surroundings; and often otlier things which go to characterize a transaction are more convincing than positive evidence of any single witness, especially if an interested witness.” 40 Mich. 200. Mr. Mason’s connection with the case does not avert the principle.
Several criticisms are urged against the portion of the charge quoted; but they are not approved. They either proceed' on misconception or rest on verbal refinements which have no importance. The charge was adapted to the facts, and on the whole was fair and the jury could not have been misled by it.
A suggestion appears in ,the brief that if the money belonged to Root, as the plaintiff said it did, according to the testimony of one or two witnesses, the action was still maintainable by Nicholson in his character of consignee. It is a sufficient answer that this would be to allow him to take contradictory positions and to prevail finally upon a ground which he has never taken but has virtually repudiated throughout. To repeat what has been noticed more than once already, his case, as maintained by his own oath and that of- his chief witness Mr. Mason, is that he sues as exclusive owner of the entire interest. It is needless to say more on this point and there is nothing further that demands discussion.
The exceptions to evidence noticed in the brief have no merit. Whether the jury decided wisely is not a matter of inquiry here. They must have found that the package was not the property of the plaintiff, and that is decisive.
There being no error the judgment should be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
This proceeding was taken to enforce a mechanic’s lien. The steps to institute the lien were pur sued under the law as it existed when the Act of May 31, 1879, was adopted; but the suit was brought under the latter statute. The circuit judge after hearing on pleadings and evidence dismissed the petition and the petitioner appealed.
Several questions possessing interest are presented. There is one, however, which is paramount and controlling. It relates to an objection which is insurmountable, and the other points therefore cease to be material.
The lien is asserted as one arising out of the execution of a contract by the petitioner for putting up a dwelling-house for respondent on her lot in the city of Ann Arbor, and he sets forth the contract and. alleges performance and the failure of respondent to pay the consideration, and prays a sale of the property.
The point of defense to which attention has been suggested is that from a date long prior to the contract down to the present time the lot has been the respondent’s homestead, and as such exempt, and she contends it is exempt from these proceedings. The petitioner admits the fact that for many years and up to this time the lot has been-her homestead, but he insists that it is bound notwithstanding, by this proceeding. His exact position is that the transaction enures as a lawful mortgage on the premises and is hence within the exception contained in the constitutional provision for the exemption of a homestead. Article xvi., § 2.
The case is to be decided on the particular facts and the question is brought within very narrow bounds.
The petitioner set down in writing a list of the particulars of a dwelling-house with brief descriptions of materials and of the style and quality of the work, and added what the price would be. The parties appended and subscribed a brief statement of their agreement to such plan and specifications, and that the price should be paid in a given manner. Such was the written agreement. No other writing was made. There was no reference to any site for the building. The writing was silent on the subject. On its face it was as capable of application to the putting up of a building on one site as on another. Hence the identification of the intended place, if indeed any was understood as fixed upon, was left entirely in parol. And there is no evidence that the respondent contemplated as matter of fact the creation of a charge on any real estate.
For the purpose of the case it may be granted that the effect of the mechanic’s lien law, where it is applicable, is to create a species of statute mortgage, whether the contract is written or unwritten and even though the land-holder may not have intended in point of fact to charge his estate; and that in case the contract is written and duly signed and describes the premises to be affected,- it will attach and bind even though the place is a homestead. But granting all this, it remains to inquire whether a contract wholly blank in regard to the premises to be built on or affected, is a valid basis on which to establish a lien or statute mortgage by adverse proceedings against what was a homestead at the time of the contract and has so continued. The court is clearly of opinion that it is not.
At common law a mortgage could not be partly in writing and partly in parol, and it has always been deemed necessary that some kind of description of the premises intended to be encumbered should be in writing, and unless there are provisions which are very distinct and very positive to the contrary, the courts will decline to recognize the power to impose charges on real estate by oral agreemént. West v. Laraway 28 Mich. 464; Wilson v. Jones 46 Md. 349.
"When the Constitution was formed, a mechanic’s lien could not be created on real estate unless there was a complete contract in writing, signed, acknowledged and recorded (Kev. Stat. 1846, ch. 126), and the exception contained in the second section of the article on exemptions in favor of mortgages lawfully obtained, was framed in view of the established rule at law that a mortgage, including the description of the premises, must be in writing. The qualification of the exception is very decisive. The mortgage which the exception from the exemption permits must be one that is not only lawfully obtained, but one that is signed by the wife if the maker is a married man. The mortgage then which is referred to and intended by the Constitution is a written mortgage — a mortgage which may be signed, and therefore one whose signing would be suitable and regular as an act to attest the assent of the parties to the imposition of the burden on designated premises.
By no ingenuity can the contract relied on be brought within this description. It cannot therefore be allowed to operate adversely to the homestead exemption. It is practicable to bring many reasons to the support of this view, but it is not supposed to be necessary to extend the opinion.
The decree must be affirmed with costs.
The other Justices concurred, | [
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] |
Cooley, J.
The bill in this case is filed by two large stockholders in The Bessemer Iron Company against the company and two of the three directors, Charles M. Wheeler and James II. King, the principal purpose of which appears to be to compel Wheeler and King to assign to the company a lease which they had obtained in their own names from the Teal Lake Iron Mining Co., of certain lands for mining purposes. The equity set up in the bill as entitling the Bessemer Iron Company to this lease is found in the fact that that company had itself had a prior lease of the same lands for the same purposes, which the defendants Wheeler and King had suffered to be forfeited in violation of their duty as officers of the company and with the dishonest purpose— which they had carried out — of obtaining one in their own names and for their exclusive benefit. Neither of the leases is set out in the bill, but it is stated that they differed in this respect, that the royalty upon the ore mined was fifty cents per ton under the first lease and but forty cents per ton under the second lease. In the view we take of the case it does not become important to give further particulars of the bill.
The defendants demurred, assigning for cause the nonjoinder of proper parties and the want of equity. The court sustained the dermirrer upon the ground that the Teal Lake Iron Mining Co., and also the remaing stockholders of the Bessemer Iron Company were necessary parties, but gave complainants leave to amend. This permission not being embraced, the bill was dismissed, but without prejudice.
I. It was certainly proper that all the stockholders of the Bessemer Iron Co. should be made parties. The bill charged the officers with dishonest management, and sought to take advantage, for the benefit of the corporation, of a contract they had made in their own names. But upon the facts stated in the bill, this contract was not, and never had been, the property of the corporation; and if the corporation had the right to elect to demand an assignment, it had also the right to decline. The election in such a case could not be made by a portion of the stockholders only, but must be a corporate act. It could not therefore have been made in this suit. There may be reasons sometimes, to excuse failure to bring in all the stockholders; but when they exist they should be stated. None are given in this bill.
II. The Teal Lake Iron Mining Co. should have been made a party. If the prayer of the bill should be granted, the company would be given a tenant which it has not consented to accept. As already stated, the terms of its lease are not given, and it may contain provisions which would preclude its assignment to the Bessemer Iron Co. It may contain other provisions which would require attention for the protection of the lessor’s interest in any transfer, and we cannot assume without having the lease before us, that the lessees have the right to make an assignment regardless of the lessor’s will, and that no legal interest of the lessor will be affected thereby. The presumption' is that the landlord is interested in being heard when the question is who is to be his tenant. And the presumption is especially strong in' this case, for the Teal Lake Company is charged in the bill with having connived with Wheeler and King to deprive the Bessemer Company of its lease in order that a new one‘might be given to these parties. If such connivance existed the Teal Lake Company must have had some inducement; and as the royalty was actually reduced, it is reasonable to infer that the new lease must have been more advantageous to the lessor than the old in some other particular. Men do not plan and carry out dishonest schemes with the end in view to reduce their returns from their property with no compensation therefor.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
The doubt I have had in this case has sprung from that section of the statute which provides that “ when a judgment shall be recovered for a debt secured by mortgage of real estate, or for any part of such debt, it shall not be lawful for the sheriff or other officer to sell the equity of redemption of the mortgagor, his heirs or assigns, in such estate, by virtue of any execution upon such judgment.” Comp. L., § 4667. I have had some question whether a conveyance of the equity of redemption could be fraudulent as against the mortgage creditor while this statute was in force. [Reflection has satisfied me, however, that a sale of growing crops on mortgaged land is not forbidden by this statute. It is only the equity of redemption in the land that cannot be sold on execution; and while it is quite true that the growing crops are a part of the realty, yet for the purposes of levy and sale on execution they are suffered to be treated as personalty. Comp.. L., § 6100. And while reasons may be suggested why a sale should not be suffered when the judgment was for a debt secured by mortgage on the land where the crops grew, there are also reasons in its favor. It would certainly save expense in many cases, especially when the mortgage debt is small.
But whatever may have been the reasons influencing the legislature, it is certain that in enacting this statute they have not, m terms, prohibited the-sale of anything which may be sold as personalty, and I am not satisfied that they have intended to do so. The verdict finds in effect that the transfer of the land was colorable merely, without actual change of possession, and the crop raised was therefore subject to sale unless a sale is forbidden by statute. Not finding that such is the case, I am of opinion that the judgment should be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Plaintiffs in error brought ejectment for a cemetery in the city of East Saginaw, which had been conveyed to them in 1854 in trust for cemetery purposes for the township of Buena Yista. The uses declared in the deed were “ in trust for the use of the township as a place of burial for the dead, and to be used by said board and said township as a cemetery and for cemetery purposes, and for no other purposes whatever.” In case any of the land should be sold for other purposes, such portion was to revert.
In 1859 the city of East Saginaw was incorporated out of a part of the township, and made to include the cemetery. Subsequently the city undertook to assert, ownership over the cemetery, and for several years, and until this suit was begun, claimed the exclusive right and control over it, disposing of burial rights, and managing it as city property.
The court below, upon a finding showing these facts, gave judgment for the defendants.
There can be no doubt that ejectment will lie by the trustees for a cemetery when they hold the legal title. Their position is analogous to that of the holder of the fee of a parish church-yard, where the burial places, although held by right, are not regarded as inconsistent with a legal title in the whole church-yard in the person or corporation vested with the trust. And where, as in this case, the defendant has assumed and exercises exclusive control, it is equally plain that there has been such an ouster as gives a cause of action. The only important question therefore relates to the ownership of the title. It has never been conveyed away in fact, and the only ground set up as a substitute for a conveyance is the supposed effect of the division of the old township of Buena Yista, whereby the cemetery fell within the city limits.
The statute relied on is the one relating to the division of townships, whereby it is declared that when a township is divided, and contains a burying-ground, it shall belong to the township in which it lies after the division. Comp. L. § 766.
This section is found in a chapter relating entirely to the division of townships. The previous sections provide for the manner in which the property and liabilities shall be apportioned, and adequate provision is made for such an apportionment. The sixth section declares that these previous arrangements shall not apply to burying-grounds, which, as before stated, are made to belong to that one of the town divisions in which they lie.
It is not claimed that this statute refers to cities by name, but it is insisted that the setting apart of a city is equivalent to the division'of a township, and comes within the same rules.
It is very clear that the legal identity of a township remains unchanged after division, so far as corporate existence is concerned, unless otherwise provided by law. Our statutes have not extinguished the corporation known as the township of Buena Yista. Its authority as a township does not extend over the city, but its property remains unless divested.
The chapter on the division of towns contains no provision whatever for any division of property, except between the townships created or continued as such by the division. The whole machinery provided for adjusting their respective interests is township machinery. There is nothing in the statute which divests a township of any rights in favor of a city, or provides any means for apportioning property or debts between city and township. And the reason for this is obvious. The whole system of township laws is uniform. It is all governed by general laws. It may very well be regarded as safe and discreet to leave the arrangements on a division to town authorities, who are all on the same footing and vested with the same powers and duties. But cities are not so created. Each has its own charter, and its boundaries, powers and rights as well as responsibilities have always been fixed in every case by special legislation. Unless the act creating the city, or some other áct relating to city matters, contains some provision concerning the transfer or distribution of township rights or responsibilities, the township cannot be affected by the city incorporation in any of its property relations. It is quite unimportant to consider the extent of legislative power in such matters, when no such power has been asserted.
•The charter of East Saginaw contains a grant of power to the city to purchase cemetery grounds, but it confers no title to those already vested in the township from which its territory was carved out. Section 6 (Comp. L. § 766), does not stand by itself as a statute relating to burial grounds, but is by its terms applicable as creating an exception to the previous rules which without that exception would require burying grounds to be included among the property apportioned. It only applies to such divisions as under the previous sections give occasion for an apportionment by township boards. Every township is expected under our laws to have a burying ground, and this statute simply provides that where there is one, it shall belong, on a division of the old township, to the town where it lies. But there is nothing in the charter of East Saginaw which adopts this rule, or which is inconsistent with the continued ownership of this tract by the township. The charter expressly authorizes the city to procure burying grounds beyond its own borders. It may procure them in Buena Yista or anywhere else. The same legislature that incorporated East Saginaw expressly changed the old statute so as to allow a township if necessary to procure a cemetery elsewhere. Laws 1869, p. 396 (Comp. L. § 1696). It is manifest that section 166 was merely designed to prevent the confusion that might arise if the division of a township were to subject the cemeteries to division or disturbance; and was not meant to preclude a township from retaining its property beyond its own limits where not directly covered by some law reaching the case. The law of 1859 certainly indicates that no such general policy prevails now.
There being no statute applying, to cities in general, or to this city in particular, the rules applicable to townships, the common law rule, must prevail, which leaves the property of a corporation unaffected by such changes as leave its corporate character in existence, and do not destroy its corporate identity. There is no common law rule which can transfer property from one corporation to another without grant.
It follows that the plaintiff is entitled to recover the premises from the defendant. The judgment below must be reversed and judgment must be given for the plaintiff as owner in fee, with costs of both courts.
The other Justices concurred. | [
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] |
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals. The Court of Appeals clearly erred by holding that the defendant was entitled to a new trial as a result of the ineffective assistance of trial counsel for the reasons stated by Judge WILDER in his partial concurrence. People v Jones, unpublished opinion per curiam of the Court of Appeals, issued August 12, 2008 (Docket No. 276690), at 2 (Wilder, J., concurring in part and concurring in the judgment). We remand this case to the Court of Appeals for consideration of whether the midtrial amendment of the information entitles defendant to a new trial. We do not retain jurisdiction. Court of Appeals No. 276690.
Kelly, C.J., and Cavanagh, J. We would deny leave to appeal. | [
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] |
Court of Appeals No. 283733.
Hathaway, J., did not participate. | [
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] |
Court of Appeals No. 287211.
Hathaway, J., did not participate. | [
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] |
Court of Appeals No. 279122.
Kelly, C.J., and Hathaway, J. We would grant leave to appeal. | [
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Leave to Appeal Granted January 28, 2009:
The parties shall include among the issues to be briefed: (1) whether People v Dunbar, 264 Mich App 240 (2004), was correctly decided; (2) whether trial courts are required to consider a defendant’s ability to repay attorney fees as articulated in Dunbar before ordering the defendant to commence reimbursement of attorney fees pursuant to MCL 769.1k; (3) whether Dunbar correctly held that a challenge to an order for repayment of attorney fees may be premature until collection efforts have begun; (4) what standards should govern a trial court’s determination whether a defendant should be responsible for the repayment of attorney fees and when repayment should begin, including what consideration, if any, should be given to a defendant’s other financial obligations (such as restitution or child support), or a defendant’s incarceration; and (5) whether imposing a 20 percent late fee pursuant to MCL 600.4803(1) constitutes an impermissible collection effort or sanction for nonpayment or provides a means of enforcement that exposes a defendant to more severe collection practices than the ordinary civil debtor. See Dunbar, supra at 253.
The Clerk of the Court is directed to place this case on the April 2009 session calendar for argument and submission. Appellant’s brief and appendix must be filed no later than March 2, 2009, and appellee’s brief and appendix, if appellee chooses to submit an appendix, must be filed no later than March 27, 2009.
The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae, to be filed no later than April 2,2009. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae, to be filed no later than April 2, 2009. Court of Appeals No. 282579. | [
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Court of Appeals No. 280424. | [
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] |
Court of Appeals No. 273576. | [
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] |
Court of Appeals No. 283725. | [
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Court of Appeals No. 275215.
Kelly, C.J., and Cavanagh and Markman, JJ. We would grant the motion for reconsideration and would grant leave to appeal for the reasons set forth in Justice Markman’s dissenting statement in People v Kircher, 483 Mich 986 (2009). | [
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] |
Court of Appeals No. 278537. | [
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] |
Court of Appeals No. 284641.
Hathaway, J., did not participate. | [
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Court of Appeals No. 284523. | [
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] |
Court of Appeals No. 286715.
Hathaway, J., did not participate. | [
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Court of Appeals No. 277812. | [
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] |
Court of Appeals No. 278661. | [
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The defendant’s motion for relief from judgment is prohibited by MCR 6.502(G). The application is also subject to dismissal because the defendant’s application for leave to appeal was not filed with the Court of Appeals within 12 months of the March 5, 2007, order of the circuit court, as required by MCR 7.205(F)(3). Court of Appeals No. 286842. | [
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] |
Court of Appeals No. 286566.
Hathaway, J., did not participate. | [
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] |
The defendant’s motion for relief from judgment is prohibited by MCR 6.502(G). Court of Appeals No. 285785. | [
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] |
Court of Appeals No. 288459. | [
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] |
Court of Appeals No. 284140. | [
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Court of Appeals No. 284584. | [
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] |
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 284050. | [
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Leave to Appeal Denied April 1, 2009:
Court of Appeals No. 269838. | [
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] |
Court of Appeals No. 278093. | [
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Superintending Control Denied March 23, 2009: | [
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] |
Court of Appeals No. 276473. | [
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Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we vacate the sentence of the Saginaw Circuit Court, and we remand this case to the trial court for resentencing. Under MCL 769.1(3), the trial court must conduct a hearing at a juvenile’s sentencing to determine whether to impose a sentence that commits the juvenile to an institution or agency described in the Youth Rehabilitation Services Act, 1974 PA 150, MCL 803.301 et seq., or to impose an adult sentence. If the prosecutor and the defendant agree, the sentencing court may waive the hearing requirements of MCL 769.1(3). If the hearing is waived, the court may place the juvenile on probation and commit the juvenile to an institution or agency described in the Youth Rehabilitation Services Act, but the court is barred from imposing any other sentence provided by law for an adult offender. MCL 769.1(4). Here, the hearing required by MCL 769.1(3) was waived, but an adult sentence was imposed, contrary to the provisions of MCL 769.1(4). We do not retain jurisdiction. Court of Appeals No. 287028. | [
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Orders Granting Oral Argument in Cases Pending on Application for Leave to Appeal April 24, 2009:
We direct the clerk to schedule oral argument on whether to grant the application or take other peremptory-action. MCR 7.302(G)(1). The parties may file supplemental briefs within 42 days of the date of this order, but they should not submit mere restatements of their application papers. Court of Appeals No. 278665. | [
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Court of Appeals No. 280796.
Weaver, J. I would direct that oral argument be heard on the application for leave to appeal. | [
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] |
Court of Appeals No. 279672. | [
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] |
Court of Appeals No. 272367. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 284698. | [
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The defendant’s motion for relief from judgment is prohibited by MCR 6.502(G). Court of Appeals No. 284907. | [
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] |
Leave to Appeal Denied June 10, 2009:
Court of Appeals No. 274099.
Kelly, C.J. I would grant leave to appeal. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285907. | [
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Rehearing Denied April 3, 2009:
Court of Appeals No. 267191.
Kelly, C.J., and Weaver and Hathaway, JJ. We would grant rehearing.
CAVANAGH, J. did not participate due to a familial relationship with counsel of record. | [
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] |
Leave to Appeal Denied March 18, 2008:
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 279507. | [
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] |
Court of Appeals No. 282428. | [
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] |
Court of Appeals No. 276574. | [
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] |
Court of Appeals No. 287337. | [
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] |
Court of Appeals No. 287376. | [
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Court of Appeals No. 275985. | [
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] |
CAVANAGH, J.
This case presents us with several questions regarding the process by which Michigan trial courts impose attorney fees on convicted criminal defendants who have used court-appointed attorneys. Specifically, we first asked whether People v Dunbar, 264 Mich App 240; 690 NW2d 476 (2004), correctly decided that, before imposing a fee for a court-appointed attorney, a trial court must make a presentence articulation of its conclusion that the defendant has a foreseeable ability to pay the fee. We conclude that Dunbar was incorrect to the extent that it required a court to conduct an ability-to-pay analysis before imposing a fee for a court-appointed attorney, and we hold that such an analysis is only required once the imposition of the fee is enforced. Further, we hold that once an ability-to-pay assessment is triggered, the court must consider whether the defendant remains indigent and whether repayment would cause manifest hardship. Finally, we conclude that remittance orders of prisoner funds, under MCL 769.1/, generally obviate the need for an ability-to-pay assessment with relation to defendants sentenced to a term of imprisonment because the statute is structured to only take monies from prisoners who are presumed to be nonindigent.
I. FACTS AND PROCEDURE
Before May 4, 2006, defendant, Harvey E. Jackson, did odd jobs around the home of an acquaintance, Cosma Agrusa. On that day, however, defendant broke into Agrusa’s home and assaulted her. He then gathered various pieces of Agrusa’s property, pulled the telephone line from the wall, and left the home. Eventually, defendant was charged with several crimes for these actions. As a result of his indigency, defendant was given court-appointed counsel, who negotiated a plea with the prosecutor. Hence, defendant pleaded nolo contendere to first-degree home invasion, assault with intent to rob while unarmed, and tampering with telephone lines. On December 14, 2006, defendant was sentenced to an eight-year minimum prison term, which was in accordance with the plea agreement. In addition, the trial court imposed various costs and fines, including $725 for “Initial Defense Costs,” i.e., his court-appointed attorney’s fee. The trial court did not articulate whether it evaluated defendant’s foreseeable ability to pay the attorney fee. Defendant then began serving his prison term.
On January 17, 2007, the trial court issued an order to remit prisoner funds for fines, costs, and assessments. This order allowed the Department of Corrections to begin taking money from defendant’s prisoner account to satisfy the various fees and costs imposed by the trial court.
Defendant requested appellate counsel, and the State Appellate Defender Office (SADO) was appointed. On defendant’s behalf, SADO moved the trial court to correct defendant’s sentence, arguing (among other things) that the trial court incorrectly imposed the attorney fee without considering defendant’s ability to pay it. The trial court denied the motion, and SADO filed a delayed application for leave to appeal in the Court of Appeals. The Court of Appeals denied leave to appeal for lack of merit. SADO requested leave to appeal in this Court, and we granted leave. People v Jackson, 483 Mich 884 (2009).
II. STANDARD OP REVIEW
Defendant challenges the constitutionality of the procedure used to impose and enforce a fee for his court-appointed attorney. This presents a question of constitutional law, which is reviewed de novo. Sidun v Wayne Co Treasurer, 481 Mich 503, 508; 751 NW2d 453 (2008).
III. ANALYSIS
In this case, defendant relies on People v Dunbar to contend that his constitutional rights were violated when the trial court imposed a fee on him for his court-appointed attorney without expressly contemplating his foreseeable ability to pay the fee. To evaluate this claim we must assess (a) the United States Supreme Court’s opinions on other states’ attempts to recoup fees for court-appointed attorneys; (b) Dunbar’s interpretation of those opinions; (c) Michigan’s recoupment procedure for fees for court-appointed attorneys; (d) the validity of Dunbar’s presentence ability-to-pay rule, and (e) the constitutionality of Michigan’s recoupment procedure for attorney fees.
A. THE UNITED STATES SUPREME COURT’S OPINIONS ON RECOUPMENT PROCEDURES FOR FEES FOR COURT-APPOINTED ATTORNEYS
In 1963 the United States Supreme Court delivered its seminal decision in Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), which held that the Sixth Amendment of the United States Constitution requires that all criminal defendants be afforded legal counsel during trial. This constitutional requirement applies to the states, and it requires them to provide legal counsel to indigent criminal defendants who request an attorney. Id. at 342-345. Since Gideon, numerous states have instituted various procedures in an effort to recoup the costs of providing indigent defendants with legal counsel. Some defendants have challenged the propriety of specific recoupment procedures, which has given the United States Supreme Court occasion to evaluate the constitutionality of those procedures.
First, in James v Strange, 407 US 128; 92 S Ct 2027; 32 L Ed 2d 600 (1972), the Court held that a Kansas statute requiring payment of fees for court-appointed attorneys was unconstitutional because it did not give defendants who owed the state a debt the same debtor exemptions that civil debtors received under the state’s laws. Specifically, a defendant who owed the state of Kansas for his court-appointed attorney could only exempt his homestead from collection, whereas the normal civil debtor had a host of other exemptions. Id. at 130-131. James held that the difference in the laws’ application to indigent defendants and other civil debtors violated equal protection principles. Id. at 140-142.
Second, in Fuller v Oregon, 417 US 40; 94 S Ct 2116; 40 L Ed 2d 642 (1974), the Court reviewed a recoupment statute that gave the trial court the discretion to impose a fee for a court-appointed attorney only when the defendant was convicted and, at the time of sentencing, adjudged to have a foreseeable ability to pay the fee. Id. at 44-45. The recoupment statute also allowed the defendant the opportunity to request a remission of the earlier-imposed fee when payment would impose a manifest hardship. Id. at 45-46. The statute also proscribed punishing the defendant for lack of payment, unless he was able to pay but simply refused. Id. The Court took special notice that the statute was “quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation.” Id. at 46. Further, “those [defendants] upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no ‘manifest hardship’ will result.” Id.
The Fuller Court did not accept the defendant’s claim that the statute violated equal protection requirements because the statute was objectively rational and was not based on invidious discrimination. Id. at 46-50. The Court also rejected the defendant’s claim that the statute infringed his constitutional right to counsel, noting that “[t]he fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel.” Id. at 53. Accordingly, Fuller affirmed the constitutionality of Oregon’s recoupment statute. Id. at 54.
Finally, in Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983), the Court considered a trial court’s decision to revoke a defendant’s probation, and remand him to prison, for his inability to pay a fine, which was imposed as part of his probation sentence. Id. at 662. Relying on notions of due process and fundamental fairness, the Court held that in order to punish a defendant for “failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay.” Id. at 672. “If the [defendant] willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation ....” Id. But simply punishing a defendant for his lack of payment, without analyzing his fault in the lack of payment, “would deprive [him] of his ... freedom simply because, through no fault of his own, he cannot pay the fine.” Id. at 672-673. “Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. at 673.
B. PEOPLE v DUNBAR'S INTERPRETATION OF JAMES, FULLER, AND BEARDEN
In Dunbar, our Court of Appeals was faced with a criminal defendant’s argument that a trial court could not impose a fee for a court-appointed attorney without indicating that it had assessed his present and future capacity to pay the fee. Dunbar, 264 Mich App at 251. At the time, Michigan had no legislation regarding a trial court’s imposition of a fee for a court-appointed attorney. Therefore, the Dunbar Court looked to James, Fuller, and Bearden for direction. Specifically, Dunbar noted that these three United States Supreme Court cases were discussed by the court in Alexander v Johnson, 742 F2d 117 (CA 4, 1984). Dunbar found Alexander's, discussion of the cases to be persuasive. In fact, Dunbar expressly adopted the following portion from the Alexander decision:
“Although there is no single model to which all state repayment programs must conform, the Supreme Court has carefully identified the basic features separating a constitutionally acceptable recoupment or restitution program from one that is fatally defective. See Fuller v Oregon, 417 US [40, 47-54; 94 S Ct 2116; 40 L Ed 2d 642 (1974)]; James v Strange, 407 US [128, 135-139; 92 S Ct 2027; 32 L Ed 2d 600 (1972)]. See also Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983). In James, the first of the three decisions bearing on this question, the Supreme Court emphasized that the indigent accepting court-appointed counsel could not be subjected to more severe collection practices than other civil debtors without running afoul of the equal protection clause. In Fuller, decided two years later, the Court offered important clarifications of the developing law in this area by upholding an Oregon reimbursement plan that required an indigent to repay court-appointed counsel fees as a condition of probation. The Oregon approach, the Court explained, contained none of the invidious collection practices condemned in James, provided an array of procedural and substantive safeguards designed to preserve the indigent’s basic right to counsel, and authorized reimbursement from the defendant only when he could afford to pay without substantial hardship. Finally, in Bearden, decided nearly a decade later, the Court added a new gloss to the general jurisprudence in this area by ruling that an inmate violating any monetary requirement of his probation or restitution regimen cannot be imprisoned if his non-compliance results from poverty alone.
“From the Supreme Court’s pronouncements in James, Fuller, and Bearden, five basic features of a constitutionally acceptable attorney’s fees reimbursement program emerge. First, the program under all circumstances must guarantee the indigent defendant’s fundamental right to counsel without cumbersome procedural obstacles designed to determine whether he is entitled to court-appointed representation. Second, the state’s decision to impose the burden of repayment must not be made without providing him notice of the contemplated action and a meaningful opportunity to be heard. Third, the entity deciding whether to require repayment must take cognizance of the individual’s resources, the other demands on his own and family’s finances, and the hardships he or his family will endure if repayment is required. The purpose of this inquiry is to assure repayment is not required as long as he remains indigent. Fourth, the defendant accepting court-appointed counsel cannot be exposed to more severe collection practices than the ordinary civil debtor. Fifth, the indigent defendant ordered to repay his attorney’s fees as a condition of work-release, parole, or probation cannot be imprisoned for failing to extinguish his debt as long as his default is attributable to his poverty, not his contumacy.” [Dunbar, 264 Mich at 252-254, quoting Alexander, 742 F2d at 124.]
Relying on this analysis, Dunbar held that, before a trial court may impose a fee on a defendant for his court-appointed attorney, it must consider the defendant’s ability to pay the fee. Dunbar, 264 Mich App at 254-255. Dunbar also held that the ability-to-pay inquiry does not require the trial court to make “a specific finding on the record regarding [the defendant’s] ability to pay,” “unless the defendant specifically objects to the reimbursement amount at the time it is ordered . . . .” Id. at 254. “However, [in any context,] the court does need to provide some indication of consideration, such as noting that it reviewed the financial and employment sections of the defendant’s presentence investigation report or, even more generally, a statement that it considered the defendant’s ability to pay.” Id. at 254-255, citing People v Grant, 455 Mich 221, 242, 243 n 30; 565 NW2d 389 (1997). And “[t]he amount ordered to be reimbursed for court-appointed attorney fees should bear a relation to the defendant’s foreseeable ability to pay.” Id. at 255. Finally, “[a] defendant’s apparent inability to pay at the time of sentencing is not necessarily indicative of the propriety of requiring reimbursement because a defendant’s capacity for future earnings may also be considered.” Id., citing Grant, 455 Mich at 242 n 27.
In essence, Dunbar adopted the five elements articulated in Alexander, and it required that they all be met before a trial court could impose a fee for a court-appointed attorney as part of a defendant’s sentence. Dunbar then went further and expanded the third Alexander element by requiring trial courts to make a presentence articulation regarding a defendant’s foreseeable ability to pay the fee. We generally refer to this holding as Dunbar’s “ability-to-pay rule.”
C. MICHIGAN’S RECOUPMENT PROCEDURE FOR FEES FOR COURT-APPOINTED ATTORNEYS
Soon after Dunbar, our Legislature promulgated MCL 769.1k and MCL 769.1l. These statutes give Michigan trial courts the power to both impose a fee for a court-appointed attorney as part of a defendant’s sentence and to enforce that imposition against an imprisoned defendant. MCL 769.1k allows imposition of such fee. It states, in pertinent part:
(1) If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute:
(b) The court may impose any or all of the following:
(iii) The expenses of providing legal assistance to the defendant.
Notably, this power to impose the fee is not limited by reference to a defendant’s ability to pay.
MCL 769.1Z allows trial courts to recoup the costs imposed under § lk by authorizing the Department of Corrections to take funds from a prisoner’s prison account. This statute also operates irrespective of a defendant’s ability to pay. It states, in pertinent part:
If a prisoner under the jurisdiction of the department of corrections has been ordered to pay any sum of money as described in section lk and the department of corrections receives an order from the court on a form prescribed by the state court administrative office, the department of corrections shall deduct 50% of the funds received by the prisoner in a month over $50.00 and promptly forward a payment to the court as provided in the order when the amount exceeds $100.00, or the entire amount if the prisoner is paroled, is transferred to community programs, or is discharged on the maximum sentenced[ ]
D. THE VALIDITY OF DUNBAR’S ABILITY-TO-PAY RULE AND THE CONSTITUTIONALITY OF MICHIGAN’S RECOUPMENT PROCEDURE FOR FEES FOR COURT-APPOINTED ATTORNEYS
In this case, the trial court relied on § lk to impose on defendant a fee for his court-appointed attorney. The trial court then relied on § 1Z to enforce the imposition of the attorney fee by directing the Department of Corrections to remit funds from defendant’s prisoner account. If this case presented a banal question of statutory application, the trial court’s actions would be summarily affirmed because they are authorized by the above-mentioned statutes. However, defendant claims that these statutes unconstitutionally infringed his Sixth Amendment right to counsel. Accordingly, this case presents a more nuanced constitutional question regarding a criminal defendant’s right to counsel.
Dunbar’s ability-to-pay rule clearly requires the trial court to (1) conduct a presentence analysis of a defendant’s foreseeable ability to pay the fee for his court-appointed attorney and (2) make some articulation of that analysis. Yet, § lk allows for the imposition of a fee for a court-appointed attorney irrespective of a defendant’s ability to pay, and § 1Z allows the trial court to order that a prisoner’s prison account be reduced to satisfy costs imposed under § lk. This is usually accomplished by a remittance order, which also does not require an ability-to-pay analysis. Consequently, Dunbar’s ability-to-pay rule conflicts with the statutes regarding the proper method for a court to impose the attorney fee. This case requires us to resolve this conflict because the trial court here did not articulate an analysis of defendant’s foreseeable ability to pay. Thus, we must adjudge the validity of Dunbar’s ability-to-pay rule and the constitutionality of Michigan’s statutory procedure for recouping fees for court-appointed attorneys.
Dunbar surveyed the United States Supreme Court opinions and it accepted Alexander’s articulation of the five elements that a recoupment procedure for fees for court-appointed attorneys must meet. Dunbar’s ability-to-pay rule derives from the third Alexander element, which states that
“the entity deciding whether to require repayment must take cognizance of the individual’s resources, the other demands on his own and family’s finances, and the hardships he or his family will endure if repayment is required. The purpose of this inquiry is to assure repayment is not required as long as he remains indigent.” [Dunbar, 264 Mich App at 253, quoting Alexander, 742 F2d at 124.]
We accept this element’s articulation of a constitutional requirement. But Dunbar’s ability-to-pay rule is an extension of this rule. Indeed, while the element requires that a truly indigent defendant never be required to pay the fee, the element never mandates that this indigency analysis take place before imposing the fee. Nonetheless, we must still analyze whether Dunbar’s ability-to-pay rule is constitutionally required. For several reasons, we conclude that it is not.
The germane United States Supreme Court opinions do not require a presentence ability-to-pay assessment. James had nothing to do with a defendant’s ability to pay; it dealt with an equal protection issue. Bearden required an ability-to-pay assessment, but it only required such an assessment before the defendant was imprisoned for defaulting on a probation condition to pay costs. The defendant here has never had his sentence changed, increased, or amended because of his inability to pay a fee for his court-appointed attorney. Fuller comes the closest to supporting Dunbar’s ability-to-pay rule because it dealt with an Oregon statute that required an ability-to-pay assessment before imposition of the fee. Thus, the Dunbar ability-to-pay rule is arguably an importation of the Oregon procedure for our trial courts. But, in Fuller, the Court only said that Oregon’s statutory structure was constitutionally valid; it did not adopt the Oregon procedure as the constitutional standard. Indeed, Fuller’s holding is limited to why the Oregon statute was constitutional. In other words, Fuller did not say that a postsentence, pre-enforcement ability-to-pay assessment would be unconstitutional. This limited interpretation of Fuller also comports with the United States Supreme Court’s consistent resistance to deliver broad, overarching holdings applicable to each and every recoupment procedure for fees for court-appointed attorneys. Therefore, this triad of constitutional cases does not mandate Dunbar’s presentence ability-to-pay rule.
Dunbar also erroneously supported its ability-to-pay rule by citing our decision in People v Grant, supra. See Dunbar, 264 Mich App at 255, citing Grant, 455 Mich at 242, 242 n 27, 243 n 30. In Grant, we analyzed the restitution provision of the Crime Victim’s Rights Act, MCL 780.767. At that time, the statute allowed a court to require a convicted defendant to pay restitution to the victim, but the statute required the court to “consider ... the financial resources and earning ability of the defendant, the financial needs of the defendant and the defendant’s dependents, and such other factors as the court considers appropriate.” Thus, Grant dealt with an ability-to-pay analysis that was expressly required by our Legislature. In this case, the applicable statute, MCL 769.1k, does not require any ability-to-pay analysis before imposing a fee for a court-appointed attorney. Unlike Grant’s statutorily based ability-to-pay analysis, Dunbar’s ability-to-pay rule is premised solely on constitutional grounds. Yet, Grant made no reference to any constitutional requirement for such an analysis. Thus, Dunbar wrongly relied on Grant to support its ability-to-pay rule.
Further, Dunbar’s ability-to-pay rule frustrates the Legislature’s legitimate interest in recouping fees for court-appointed attorneys from defendants who eventually gain the ability to pay those fees. Fuller expressly noted that, despite pretrial indigency, a criminal defendant is not forever immune from being required to pay the state for the cost of his court-appointed attorney, assuming he eventually gains the ability to pay. And we have expressed our approval of this legitimate governmental purpose of recouping the costs of court-appointed counsel from criminal defendants. Davis v Oakland Circuit Judge, 383 Mich 717, 720; 178 NW2d 920 (1970). Yet, under Dunbar, the trial court, and thus the state of Michigan, is forced to make a forever-binding presentence guess whether a particular defendant will ever gain the ability to pay the fee. Despite our deepest wishes to the contrary, no judge is so clairvoyant, and the state should not be forever precluded from seeking repayment from a defendant who has later gained the ability to pay, simply because at the time of sentencing it wrongly concluded that the defendant would never rise above indi-gency.
Thus, we conclude that Dunbar was incorrect to the extent that it held that criminal defendants have a constitutional right to an assessment of their ability to pay before the imposition of a fee for a court-appointed attorney. With no constitutional mandate, Dunbar's presentence ability-to-pay rule must yield to the Legislature’s contrary intent that no such analysis is required at sentencing. See MCL 769.1k and 769.1Z.
We also note that, when considering an ability-to-pay analysis, there is a substantive difference between the imposition of a fee and the enforcement of that fee. This is supported by our reasoning in People v Music, 428 Mich 356; 408 NW2d 795 (1987). In Music we were analyzing a statute, MCL 771.3(5)(a), that allowed the trial court to order restitution and payment of costs as part of a probation sentence. Id. at 358. The statute, however, provided:
The court shall not require a probationer to pay restitution or costs unless the probationer is or will be able to pay them during the term of probation. In determining the amount and method of payment of restitution and costs, the court shall take into account the financial resources of the probationer and the nature of the burden that payment of restitution or costs will impose, with due regard to his or her other obligations.[ ]
The defendant in Music argued that the trial court erred in imposing costs on him without establishing his ability to pay them. Music, 428 Mich at 358. We held that when a defendant is statutorily entitled to an ability-to-pay assessment, that assessment is not required when the fee or cost is imposed; instead, that assessment is only required at the time payment is required, i.e., when the imposition is enforced. Hence, for purposes of an ability-to-pay analysis, we have recognized a substantive difference between the impo sition of a fee and the enforcement of that imposition. It matters not that the ability-to-pay assessment in Music was required by statute, whereas it is based on the United State Supreme Court’s analysis in Fuller in the instant context. What is of import is that defendants in both contexts are entitled to an ability-to-pay assessment at some point in time; therefore, the distinction between fee imposition and fee enforcement is equally applicable to both contexts. Accordingly, like the defendant in Music, the instant defendant is not entitled to an ability-to-pay assessment until the imposition of the fee is enforced.
Our decision today does not affect the minimal due process requirements that entitle a defendant to notice and an opportunity to be heard regarding the enforcement of earlier imposed costs and fees. Indeed, whenever a trial court attempts to enforce its imposition of a fee for a court-appointed attorney under MCL 769.1k, the defendant must be advised of this enforcement action and be given an opportunity to contest the enforcement on the basis of his indigency. Thus, trial courts should not entertain defendants’ ability-to-pay-based challenges to the imposition of fees until enforcement of that imposition has begun. Even Dunbar recognized that these pre-enforcement challenges would be premature. Nonetheless, once enforcement of the fee imposition has begun, and a defendant has made a timely objection based on his claimed inability to pay, the trial courts should evaluate the defendant’s ability to pay. The operative question for any such evaluation will be whether a defendant is indigent and unable to pay at that time or whether forced payment would work a manifest hardship on the defendant at that time.
Currently, the factors set forth in MCR 6.005(B) are used to determine whether a defendant’s pretrial indi-gency entitles him to a court-appointed attorney. While these factors might be an adequate gauge of the indigency of a parolee or probationer, they are largely irrelevant in relation to imprisoned individuals. We acknowledge that the trial courts require guidance, such as that provided in MCR 6.005(B), to determine whether a defendant is indigent when the court enters a posttrial order to enforce an attorney fee recoupment order. In fact, this Court is currently considering the adoption of guidelines specific to the determination of indigency for purposes of imposing and enforcing an obligation to pay the cost of a court-appointed attorney as part of ADM File No. 2008-23. In the meantime, trial courts should focus on whether the defendant’s indi-gency has ended and whether payment at the level ordered would cause manifest hardship.
E. THE CONSTITUTIONALITY OF MICHIGAN’S RECOUPMENT PROCEDURE FOR FEES FOR COURT-APPOINTED ATTORNEYS
Despite our conclusion that Dunbar’s ability-to-pay rule is not constitutionally mandated, we must still evaluate defendant’s contention that Michigan’s re-coupment procedure for fees for court-appointed attorneys is unconstitutional. Defendant initially claims that MCL 769.1k is unconstitutional when trial courts apply it to impose a fee for a court-appointed attorney without conducting a presentence ability-to-pay analysis. We disagree because, as noted earlier, there is no constitutionally required ability-to-pay analysis until the fee is actually enforced.
Defendant also argues that MCL 769.1Z is unconstitutional because it is an enforcement of the imposition of a fee for a court-appointed attorney, yet it does not require an ability-to-pay analysis. Defendant correctly notes that when a prisoner, like himself, has had a fee for a court-appointed attorney imposed on him, § 1Z allows a trial court to order the Department of Corrections to “deduct 50% of the funds received by the prisoner in a month over $50.00 and promptly forward a payment to the court as provided in the order when the amount exceeds $100.00 . . ..” We acknowledge that this procedure is an enforcement of the fee without an ability-to-pay assessment. But we decline to hold that this enforcement procedure is unconstitutional, because the statute’s monetary calculations necessarily conduct a preliminary, general ability-to-pay assessment before the prisoner’s funds are taken.
The ability-to-pay analysis should not be confused with the underlying constitutional tenet; it is merely a procedure used to ensure compliance with the constitutional precept that no indigent defendant must be forced to pay. In other words, as long as it does not require indigent defendants to pay a fee, a procedure that enforces the fee is not unconstitutional simply because it does not require an ability-to-pay analysis. Indeed, the true issue is always indigency, no matter what test is used to evaluate the issue. And application of § lZ’s calculative procedure necessarily only applies to prisoners who have an apparent ability to pay.
MCL 769.1Z inherently calculates a prisoner’s general ability to pay and, in effect, creates a statutory presumption of nonindigency. The provision only allows the garnishment of a prisoner’s account if the balance exceeds $50. Although this amount would be insufficient to sustain a defendant living among the general populace, it is uncontested that a prisoner’s “living expenses” are nil, as the prisoner is clothed, sheltered, fed, and has all his medical needs provided by the state. The funds left to the prisoner on a monthly basis are more than adequate to cover the prisoner’s other minimal expenses and obligations without causing manifest hardship. Thus, we conclude that § lZ’s application makes a legitimate presumption that the prisoner is not indigent.
We acknowledge that one’s indigency is an individualized assessment and that § li’s presumption does not result from a full individualized analysis of a prisoner’s indigency. Accordingly, if a prisoner believes that his unique individual financial circumstances rebut § l/’s presumption of nonindigency, he may petition the court to reduce or eliminate the amount that the remittance order requires him to pay. However, because we adjudge a prisoner’s indigency at the time of enforcement on the basis of manifest hardship and because a prisoner is being provided all significant life necessities by the state, we caution that the imprisoned defendant bears a heavy burden of establishing his extraordinary financial circumstances. While we do not attempt to lay out an extensive formal structure by which trial courts are to review these claims, we do direct that they be guided by MCL 771.3(6)(b), which controls the similar situation in which a probationer seeks remission of costs owed. Specifically, when reviewing a prisoner’s claim, lower courts must receive the prisoner’s petition and any proofs of his unique and extraordinary financial circumstances. Further, the lower courts should only hold that a prisoner’s individual circumstances warrant amending or reducing the remittance order when, in its discretion, it determines that enforcement would work a manifest hardship on the prisoner or his immediate family. The trial courts are under no obligation to hold any formal proceedings. They are only required to amend the remittance order when § lZ’s presumption of nonindigency is rebutted with evidence that enforcement would impose a manifest hardship on the prisoner or his immediate family. Beyond these basic parameters, we leave it to the trial courts, in their sound discretion, to decide how to adjudicate a prisoner’s claim that his individual circumstances rebut § lZ’s presumption of nonindigency.
Finally, we had initially intended to decide the constitutionality of a trial court’s imposing a 20 percent late fee pursuant to MCL 600.4803(1). People v Jackson, 483 Mich 884 (2009). Section 4803(1) clearly allows imposition of this 20 percent late fee on outstanding balances of fees that the trial court imposed on a defendant, which includes the fee for a court-appointed attorney. However, after further re view, we decline to answer this question here because the trial court did not impose this late fee on defendant, and there is no indication that it ever will. Thus, at this point, the issue is not ripe.
IV CONCLUSION AND APPLICATION
Dunbar wrongly held that a trial court is required to assess a convicted defendant’s ability to pay before imposing a fee for a court-appointed attorney. The ability-to-pay assessment is only necessary when that imposition is enforced and the defendant contests his ability to pay. This ability-to-pay assessment is initially obviated under MCL 769.1Z, in relation to imprisoned defendants, because the procedure in this provision creates a presumption that the prisoner is not indigent.
In this case, the trial court did not err by imposing the fee for his court-appointed attorney without conducting an ability-to-pay analysis. Further, it did not err by issuing the remittance order under MCL 769.11 because defendant is presumed to be nonindigent if his prisoner account is only reduced by 50 percent of the amount over $50. However, if he contests his ability to pay that amount, he may ask the trial court to amend or revoke the remittance order, at which point the trial court must decide whether defendant’s claim of extraor dinary financial circumstances rebuts the statutory presumption of his nonindigency. Accordingly, the trial court is affirmed.
We do not retain jurisdiction.
Kelly, C.J., and Weaver, Corrigan, Young, Markman, and Hathaway, JJ., concurred with CAVANAGH, J.
MCL 750.110a(2).
MCL 750.88.
MCL 750.540.
As a condition to receiving both trial and appellate counsel, defendant was required to sign forms provided by the county that acknowledged defendant’s obligation to reimburse the county for the cost of his court-appointed attorneys and the associated court costs. These forms also noted that if defendant was unable to pay these costs in full, he would be required to enter a reimbursement plan in accordance with his ability to pay. The forms also noted that the 20 percent late fee under MCL 600.4801 and MCL 600.4803 may be imposed for fees that were not paid within 56 days of their due date. However, the trial court never imposed any fees associated with defendant’s appellate counsel, and it never imposed the statutory late fee.
The parties contest whether defendant’s claim of error was preserved, which would affect the standard of review relating to defendant’s entitlement to relief. However, we decline to decide that issue because our conclusion that the trial court did not err obviates the need to address the preservation issue.
Defendants sentenced to probation may also be subject to an attorney-fee recoupment order. As a condition of probation, a defendant may be ordered to pay the cost of “providing legal assistance” during the prosecution of his case. MCL 771.3(2)(c); MCL 771.3(5). Unlike MCL 769.11, MCL 771.3 includes provisions, consistent with the statutory requirements outlined in Fuller, expressly requiring the court to consider the defendant’s ability to pay at the time of enforcement and before basing a revocation of probation on a failure to pay:
(6) If the court imposes costs under subsection (2) as part of a sentence of probation, all of the following apply:
(a) The court shall not require a probationer to pay costs under subsection (2) unless the probationer is or will be able to pay them during the term of probation. In determining the amount and method of payment of costs under subsection (2), the court shall take into account the probationer’s financial resources and the nature of the burden that payment of costs will impose, with due regard to his or her other obligations.
(b) A probationer who is required to pay costs under subsection (l)(g) or (2)(c) and who is not in willful default of the payment of the costs may petition the sentencing judge or his or her successor at any time for a remission of the payment of any unpaid portion of those costs. If the court determines that payment of the amount due will impose a manifest hardship on the probationer or his or her immediate family, the court may remit all or part of the amount due in costs or modify the method of payment.
(8) If a probationer is ordered to pay costs as part of a sentence of probation, compliance with that order shall be a condition of probation. The court may revoke probation if the probationer fails to comply with the order and if the probationer has not made a good faith effort to comply with the order. In determining whether to revoke probation, the court shall consider the probationer’s employment status, earning ability, and financial resources, the willfulness of the probationer’s failure to pay, and any other special circumstances that may have a bearing on the probationer’s ability to pay....
While the Legislature has provided for an ability-to-pay assessment before revoking a prisoner’s parole on the basis of a failure to pay restitution and state costs, MCL 791.240a(ll), it has not enacted any similar provisions relevant to a parolee’s obligation to pay the fees of court-appointed counsel. Based solely on the statutes relevant to parolees, just like under the statutes relevant to imprisoned individuals, parolees would be subject to enforcement of attorney-fee recoupment orders irrespective of their ability to pay. Accordingly, the ability-to-pay analysis based on Fuller and outlined in this opinion would apply equally to parolees and prisoners.
See US Const, Am VI.
In the past, we have declined to answer this question. See People v Trapp, 482 Mich 1044 (2008) (denying leave to appeal). Irrespective of the bases for our earlier declination, we are now resolved to settle this nettlesome issue. Because we now overrule Dunbar, and because the Court in People v Trapp, 280 Mich App 598; 760 NW2d 791 (2008), relied on Dunbar, we also overrule Trapp to the extent it contradicts our decision today.
Fuller did not say that all other recoupment procedures must comply with the Oregon statute’s requirements. Instead it simply upheld the statute because it
merely provides that a convicted person who later becomes able to pay for his counsel may be required to do so. Oregon’s legislation is tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship. [Fuller, 417 US at 54.]
In James, the Court stated that “[i]t is ... apparent that state recoupment laws and procedures differ significantly in their particulars. Given the wide differences in the features of these statutes, any broadside pronouncement on their general validity would be inappropriate.” James, 407 US at 133. Further, in Fuller, the Court stated, “ ‘We do not inquire whether this statute is wise or desirable. Misguided laws may nonetheless be constitutional.’ ” Fuller, 417 US at 49, quoting James, 407 US at 133.
Since that time, the statute has been amended to remove this assessment of the defendant’s financial resources. Currently, the statute states: “In determining the amount of restitution to order under section 16, the court shall consider the amount of the loss sustained by any victim as a result of the offense.” MCL 780.767(1).
See Justice Corrigan’s dissenting statement in People v Carter, 480 Mich 1063, 1071 n 10 (2008), which discussed the Dunbar Court’s improper reliance on Grant.
See James, 407 US at 141 (recognizing that “state recoupment statutes [for fees for court-appointed attorneys] may betoken legitimate state interests”).
A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship. [Fuller, 417 US at 63-54.]
Dunbar recognized this in its concession that “[a] defendant’s apparent inability to pay at the time of sentencing is not necessarily indicative of the propriety of requiring reimbursement because a defendant’s capacity for future earnings may also be considered.” Id. at 255.
As indicated earlier the substance of this provision is now located at MCL 771.3(6)(a).
We stated:
“The statutory limitations on the court’s discretion to require these payments, however, are directed at the court’s ability to force payment through probation revocation. The statutory language allows for the imposition of restitution or costs. It then continues that if restitution or costs are imposed the court may not require payment unless the probationer is able to pay. Thus the statute makes a distinction between imposition and payment. While a court must comply with the limitations [i.e., establishing a defendant’s ability to pay] in requiring payment of costs or restitution as a probation condition, the limitations are not directed at requiring a court to hold a hearing or make findings on the record at the time costs and restitution are imposed.” [Music, 428 Mich at 360, quoting People v Music, 157 Mich App 375, 379-380; 403 NW2d 143 (1987).]
We note that strictly legal challenges to the imposition of fees and costs under MCL 769.1k (i.e., challenges that are not based on indigency, such as the statute not applying) must be preserved when the trial court imposes the fee. If not challenged at that point, the claim of error will be seen as unpreserved.
“We note that, in most cases, challenges to the reimbursement order will be premature if the defendant has not been required to commence repayment.” Dunbar, 264 Mich App at 256.
While some cases may require a formal hearing for this analysis, others clearly will not. In either situation, the trial courts must exercise sound discretion in fairly and properly adjudicating a defendant’s challenge to his ability to pay.
The court rule requires that the trial court assess the following factors in deciding whether a defendant is indigent:
(1) present employment, earning capacity and living expenses;
(2) outstanding debts and liabilities, secured and unsecured;
(3) whether the defendant has qualified for and is receiving any form of public assistance;
(4) availability and convertibility, without undue financial hardship to the defendant and the defendant’s dependents, of any personal or real property owned; and
(5) any other circumstances that would impair the ability to pay a lawyer’s fee as would ordinarily be required to retain competent counsel.
The ability to post bond for pretrial release does not make the defendant ineligible for appointment of a lawyer. [MCR 6.005(B).]
See Justice CORRIGAN’S statements in People v Banks, 482 Mich 1051, 1052 (2008) (Corrigan, J., concurring), and People v McCaa, 481 Mich 939, 941 (2008) (CORRIGAN, J., dissenting), which contained similar arguments.
We acknowledge that a more formal construct is desirable for this issue. But until a statute or court rule is promulgated to give such formal direction, we conclude that the probation code gives adequate guidance in its handling of an analogous situation. When a probationer claims “manifest hardship” in a request to remit what is owed to the state, the probation code commands:
A probationer who is required to pay costs . .. and who is not in willful default of the payment of the costs may petition the sentencing judge or his or her successor at any time for a remission of the payment of any unpaid portion of those costs. If the court determines that payment of the amount due will impose a manifest hardship on the probationer or his or her immediate family, the court may remit all or part of the amount due in costs or modify the method of payment. [MCL 771.3(6)(b).]
The defendant in this case may malm an argument of manifest hardship under this opinion’s new rule if he chooses, and the trial court should receive it as if it had been made when the fee was enforced.
Defendant also takes exception to the trial court’s procedure of requiring criminal defendants, as a condition to obtaining court-appointed counsel, to sign a form acknowledging that they may be required to pay the applicable costs. We note that, in Fuller, 417 US at 51-52, the United States Supreme Court held that an attorney-fee recoupment scheme did not unconstitutionally “chill” the defendant’s right to counsel. The Court specifically stated: “The fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel.” Id. at 53.
The provision states:
A person who fails to pay a penalty, fee, or costs in full within 56 days after that amount is due and owing is subject to a late penalty equal to 20% of the amount owed. The court shall inform a person subject to a penalty, fee, or costs that the late penalty will be applied to any amount that continues to be unpaid 56 days after the amount is due and owing. Penalties, fees, and costs are due and owing at the time they are ordered unless the court directs otherwise. The court shall order a specific date on which the penalties, fees, and costs are due and owing. If the court authorizes delayed or installment payments of a penalty, fee, or costs, the court shall inform the person of the date on which, or time schedule under which, the penally, fee, or costs, or portion of the penalty, fee, or costs, will be due and owing. A late penalty may be waived by the court upon the request of the person subject to the late penalty. [MCL 600.4803(1).] | [
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Summary Disposition June 10, 2009:
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. See Scarsella v Poliak, 461 Mich 547, 549 (2000). We further order that the trial court proceedings are stayed pending the completion of this appeal. On motion of a party or on its own motion, the Court of Appeals may modify, set aside, or place conditions on the stay if it appears that the appeal is not being vigorously prosecuted or if other appropriate grounds appear. Court of Appeals No. 289513. | [
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] |
Leave to Appeal Denied July 15, 2009:
Court of Appeals No. 287028. | [
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] |
Court of Appeals No. 288321. | [
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Leave to Appeal Denied March 23, 2009:
Court of Appeals No. 280254.
Hathaway, J. (not participating). I recuse myself and will not be participating in this case because my law clerk was a witness in this case. See MCR 2.003(B); Code of Judicial Conduct, Canon 2 (stating that “[a] judge must avoid all impropriety and appearance of impropriety”). | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 284453. | [
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Court of Appeals No. 285406.
Hathaway, J., did not participate. | [
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The parties shall address: (1) whether intentionally accessing and viewing child sexually abusive material on the Internet constitutes “knowing possession” of such material under MCL 750.145c(4); and (2) whether the presence of automatically created “temporary internet files” on a computer hard drive may amount to “knowing possession” of child sexually abusive material or may he circumstantial evidence that defendant “knowingly possessed” such material in the past.
The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issue presented in this case may move the Court for permission to file briefs amicus curiae. Court of Appeals Nos. 278531 and 277925. | [
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] |
Court of Appeals No. 286191. | [
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] |
Court of Appeals Nos. 281587 and 283361. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285537. | [
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Court of Appeals No. 278809. | [
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Court of Appeals No. 276769. | [
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Leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we affirm the April 1, 2008, Court of Appeals judgment that “transmission costs” may be recovered through a power supply cost recovery (PSCR) clause on different grounds. The Court of Appeals followed the binding decision of In re Detroit Edison Application, 276 Mich App 216, 229 (2007), which held that “[p]ayments made by Edison for transmission costs ... are necessarily ‘transportation costs,’ and therefore are properly recoverable in a PSCR clause.” See MCR 7.215(J)(1). Electric utilities can recover two types of power supply costs through a PSCR clause: (1) “booked costs, including transportation costs, reclamation costs, and disposal and reprocessing costs, of fuel burned by the utility for electric generation;” or (2) “booked costs of purchased and net interchanged power transactions.” MCL 460.6j(1)(a). The Court of Appeals interpretation does not give any meaning to the limitation that the “transportation costs” must be those “of fuel burned by the utility for electric generation.” (Emphasis added.) However, the second clause, “booked costs of purchased and net interchanged power transactions,” is a technical phrase that has acquired a “peculiar and appropriate” meaning in the regulation of electric utilities to include “transmission costs” charged by third parties. MCL 8.3a; see In re Wisconsin Electric Power Co, unpublished opinion and order of the Public Service Commission, issued September 16,2002 (Case No. U-12725), at 16. Accordingly, it “shall be construed and understood according to such peculiar and appropriate meaning,” MCL 8.3a, and the PSC did not err in permitting Consumers Energy Company to recover transmission costs through its PSCR clause. The Court of Appeals affirmance of the PSC decision is thus affirmed on this alternate ground. Court of Appeals No. 261747. | [
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