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Champlin, J.
Respondent was convicted in the Recorder’s court of the city of Detroit of knowingly and willfully assaulting Prank Lewis, a member of the Metropolitan Police department, by discharging at and towards him a revolver loaded, with cartridge and ball. It was charged that on the 22d day of December, 1883, respondent broke the public peace in the city of Detroit by wantonly discharging a revolver in one of the public streets, in the presence and hearing of Policeman Lewis, who, deeming it necessary as a means of preserving the public peace, and as-a means of preventing a further breach thereof on the part of respondent, arrested and took him in custody, and while on the way to the station the respondent committed the assault for which he was convicted. The record shows that the jury must have found the fact that the respondent, about eleven o’clock at night, wantonly discharged his revolver while in the public street, at the corner of Michigan Grand avenue and Randolph street. * The officer who made the arrest was standing on the opposite side of the avenue, and saw the flash and heard the report and saw the respondent and another man start and run up Randolph street to [Fort and across to] Brush street. The officer pursued and arrested respondent at this point. He had not been out of sight of the officer from the time he fired the shot until he overtook and arrested him. The Verdict of the jury is conclusive upon the facts that respondent wantonly discharged his revolver in the public street, and that he willfully committed the assault upon the officer while in his custody and under arrest for the offense. Two questions only are presented for our determination: First, Was it a breach of the public peace to wantonly discharge a revolver at the place named in the information under the circumstances shown by the evidence ? Second, Was the offense committed in the presence of the officer so as to authorize him to arrest respondent without written warrant from a magistrate ?
It was said in Galvin v. State 6 Cold. (Tenn.) 294. that “a breach of the peace is ‘a violation of public order, the offense of disturbing the public peace. An act of public indecorum is also a breach of the peace.’ ” The term “ breach of the peace ” is generic, and includes riotous and unlawful assemblies, riots, affrays, forcible entry and detainer, the wanton discharge of firearms so near the chamber of a sick person as to cause injury, the sending of challenges and provoking to fight, going armed in public without lawful occasion, in such manner as to alarm the public, and many other acts of a similar character. The wanton discharge of firearms in the public streets of a city is well calculated to alarm the public and cause them to be apprehensive of individual safety; and I think the Recorder was entirely correct when he instructed the jury that such act constituted a breach of the peace.
Was the offense committed .in the presence of the officer? If it was, he was authorized to make the arrest without a warrant. 1 think it was committed in his presence. The distance was the width of the avenue. He was in sight of the person discharging the pistol, and did not lose sight of him while pursuing to make the arrest. Had the shooting occurred in the daytime, no such question would be raised. A person’s presence does not depend upon whether he can be distinctly seen or discerned by another. An assemblage of persons in a room lighted with gas do not cease to be present when the gas is turned off and they are left in total darkness. The presence of the officer in this case was so apparent to respondent that he deemed it prudent to absent himself as soon as he discharged the revolver. The court instructed the jury, as matter of law, that when a pistol is fired off in the way the testimony tended to show this was, so the officer could see the flash of the pistol and hear the shot, and the person who fired the shot would have been in. sight if it had been light so he could have seen him, it was sufficiently m his presence in the meaning of the law. I think the charge was correct. If the person discharging the pistol had committed a homicide, and the officer had started for a magistrate to obtain a warrant, instead of immediately arresting him, and the offender had escaped, the officer would have justly been considered reprehensible for gross dereliction of duty.
The exceptions are overruled, and the Recorder advised to proceed to judgment.
Cooley, C. J. and Sherwood, J. concurred. | [
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Sherwood, J.
The action in this case is trover for the ■conversion of a satin delaine lounge contracted for by a Mrs. Lucy Hall, with the agreement that the title to the property ¡should remain in the plaintiff till paid for. The property was procured of the plaintiff at East Saginaw, and the contract price to be paid was twenty dollars. After Mrs. Hall had paid eight dollars on her contract she removed the lounge to Saginaw and sold it to the defendant, who, on demand therefor — which, we think, was sufficient — refused to comply, and the plaintiff brought this suit, first before a justice, ¡and obtained judgment. Defendant then appealed to the •circuit. On the trial there the plaintiff again had judgment, and the case is now before us on writ of error.
The testimony shows the plaintiff contracted to Mrs. Hall “the lounge; that he had a book-keeper by the name of Fox who sometimes acted as his salesman, and in little matters ‘had some discretion; that about the time Mrs. Hall was moving the lounge to Saginaw, Fox informed the plaintiff of what she was doing and the plaintiff gave him special orders to collect the money or get the goods and it does not appear he ever gave' Fox any other authority. Fox then called on Mrs. Hall and notified her of the balance yet due. She said .she knew it; that she was about to start a boarding-house in the city of Saginaw, and if he would let her take the lounge •over there she would pay the balance the following week. The plaintiff consented to this arrangement but did not know that Mrs. Hall had sold the lounge until after defendant had bought it, and that he never consented to her selling it. And as soon as he learned she had sold it to defendant he informed him of plaintiff’s title to the property, and that he wanted the amount due upon it, or the property. The testimony is •conflicting as to the last three facts stated.
There was no sufficient testimony in the ease upon which to base the defendant’s first and second requests to charge,, and they were properly refused. The sale to defendant was-made by Mrs. Hall before plaintiff knew anything about it, and the same is true as to the knowledge of Fox, if his testimony is to be believed; but whether true or not, he certainly,, under his special instruction, occupied no'position to limit the plaintiff by his claimed neglect to give information to-defendant. ¥e find no error under the other assignments. The charge of the circuit judge was fair, and, upon the facts-as they appear in the record, very proper to be given.
The law and the facts are clearly with the plaintiff, and
The judgment must be affirmed.
The other Justices concurred. | [
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Sharpe, J.
This is a chancery action to impress a lien upon certain real estate. On January 16, 1952, plaintiff, Hermie Ooley, filed a bill of complaint in the circuit court of Van Burén county. Plaintiff’s bill of complaint and her testimony alleges that on and prior to December 23, 1949, Gorden J. Miller and Lucile Miller, his wife, were the owners of a parcel of real estate in Van Burén county which was subject to a mortgage, which mortgage had been foreclosed in equity and sold on September 3, 1949; that plaintiff is and has been a resident of Chicago, Illinois, and has known defendant Edward Collins for a period of about 8 years; that she and Edward Collins spent a few days with the Millers at their home and place of business during the Thanksgiving period of 1949; that while visiting the Millers she learned of the mortgage, its foreclosure, and sale; that on this occasion she told the Millers and Collins that she had about $17,000 which she was willing to advance in order to redeem the premises from the foreclosure sale; that the Millers told her that if she advanced that amount they would give her a warranty deed of the premises, subject to a contract of repurchase in 1 year; that she obtained a cashier’s check by the use of her own funds in the sum of $17,510, made payable to Gorden Miller; that the draft was delivered to Edward Collins who took it to the Millers, and the mortgage was redeemed on December 23, 1949; that Collins and the Millers conspired together to cheat and defraud plaintiff, and in furtherance of said plan did on December 23, 1949, cause a warranty deed to be executed by the Millers to Edward Collins, which deed was recorded in the office of the register of deeds; that on February 17, 1950, Edward Collins entered into a contract of sale with Carl A. Anderson, Jr., and Alice Anderson, and on said day executed a warranty deed to the Andersons which was recorded on February 21, 1950; that on or about August 12, 1950, Edward Collins conveyed said premises to Joseph T. Pawlowski and Olga M. Pawlowski, husband and wife, by quitclaim deed, and assigned to the defendantsPawlowski his interest in the so-called Anderson contract; that on or about February 18, 1950, Edward Collins paid to plaintiff the sum of $5,000,. and that no other part of said indebtedness has been paid; that upon said premises is located a tavern, a restaurant, and a number of cottages.
The Millers filed an answer to plaintiff’s bill of complaint in which they admit they redeemed the premises with the cashier’s check furnished by plaintiff, but deny that they had any part in the scheme-to defraud plaintiff.
Joseph T. Pawlowski filed an answer to plaintiff’s-bill of complaint in which he denies that he or his wife had any knowledge as to any plan or scheme-of Edward Collins to defraud plaintiff, and that at the time he and Olga M. Pawlowski, his wife, acquired their interest in the premises they had no knowledge or information that plaintiff had or claimed any interest in the premises.
Defendants Carl A. Anderson, Jr., and Alice K. Anderson, his wife, also filed an answer to plaintiff’s, bill of complaint in which they deny that they knew of or took part in any scheme to defraud plaintiff, and that at the time of acquiring their interest in the premises they had no knowledge that plaintiff had or claimed any interest in the premises.
The record shows that defendant Edward Collins-was not personally served with summons, nor did he-enter his appearance in the case. It appears that Edward Collins left the State of Michigan on or about August 18, 1950. It also appears that on the day plaintiff’s bill of complaint was filed, plaintiff’s attorney filed an affidavit reciting that defendantsPawlowski were nonresidents of the State of Michi gan, but resided in the State of Indiana, and that it could not be ascertained in what State or country-defendant Edward Collins resided. Based on this affidavit, an order of publication was entered and published in a newspaper in Van Burén county for the required publication, in which order defendant Edward Collins was named as a defendant. It also appears that on or about February 18, 1950, defendant Collins paid plaintiff the sum of $5,000, and also about that time the further sum of $700, which $700 was reborrowed by Collins and the Millers a few months later.
The cause came on for trial, at which time plaintiff testified:
“I had met the Millers that summer, but we were invited to their home for Thanksgiving dinner in the fall of 1949. I went to their home at that time. We stayed all night. By we, I mean Ed Collins and myself. This home is out at Sister Lakes and the ■dinner was given at the Rendezvous and that night we spent the night in their home. This was near the Rendezvous.
“Q. On that visit, did you have any conversation with Mr. and Mrs. Miller concerning this Rendezvous property ?,
“A. Well, I had heard that they had this mortgage against it and Ed had told me all about it because he was better acquainted with the Millers than I was. And when we were there at Thanksgiving, they had just a short period of time to make up this —to get this mortgage straightened out and I thought it was a nice place to— * * *
“A. Well, the Millers were very much upset and so we were talking it over and I said well, I had $17,000 but that wouldn’t be enough to cover this mortgage. And Mr. Miller said, well, perhaps they could get the rest somewhere else in the meantime. And that was all for that time.
“And then he made an agreement to come to my apartment about 2 weeks later when Mr. and Mrs. Miller visited my place and when this agreement was made. * * *
“A. Well, Mr. Miller had stated that he would give me a warranty deed on the property and that Collins — Ed Collins — he was going to go up there and run the place in the meantime and I was going to remain in Chicago until they got set. * * *
“Q. Just tell us what was said about Miller’s repurchasing the property.
“A. After the period of a year, they could buy it back. # * *
“After the redemption from this foreclosure, Collins went into a business adventure. He went to Seymour, Indiana, with the Millers for a period of about 2 months and then that fell through. And then they went to Indiana to South Bend and they were operating until the fall of the year. They were operating a cafe. They operated the cafe up until the time Collins left. Between the redemption from this foreclosure and when Collins left the Millers and Collins were in business together. * * *
“Q. Now, prior to that, had you had any telephone communications with Mr. Miller ?
“A. Well, as quick as Collins had left, he kept calling me several times a day and wanting to know where he went and I hadn’t seen him and she was telling me that he was — that he had made a quitclaim deed with Mr. Pawlowski and naturally I didn’t know anything about it because I hadn’t seen him.
“Q. But Mrs. Miller called you on the phone and told you that Collins was dealing with Pawlowski,, is that right?
“A Tbfit’s rio-bt * * *
' “Q'. You offered Mr. Miller $17,510?
“A. Yes.
“Q. To a man you hardly knew before, isn’t that right?
“A. Well, with an agreement that I should get the warranty deed. * * *
“I did not agree to give this money to Mr. Collins. I went to the bank with Mr. Collins and got a cashier’s check for $17,510. Mr. Collins was there with me at that time. I gave the check to Edward Collins. I never saw the check again, not until I saw the photo static copy. I do know what Mr. Collins did with it. I was not there when he disposed of it, but the Millers were in here shortly after that and had told me about the agreement that was made.”
On cross-examination plaintiff testified:
“I have never met Mrs. Anderson. I have never met Mr. Carl Anderson. I never saw them before today in court. I had never seen them at a,ll at any time. At the time Mr. Anderson purchased this property involved in this suit I knew of the transaction. I never went to see Mr. Anderson about it. I never went to see Mrs. Anderson about it.”
Joseph J. Nagle, a witness for plaintiff, testified:
“My name is Joseph J. Nagle. I reside in Chicago, Illinois. My occupation is lawyer. I am acquainted with Mrs. Ooley. She is a client of mine. I am acquainted with Gorden Miller. In the summer of 1950 I learned of this transaction of Mrs. Ooley’s with Miller and Collins.
“After I learned of that transaction I had a conversation with Gorden Miller in South Bend, Indiana, at his cafe. Collins was not there. The date was August 31, 1950. I discussed this transaction with Mr. Miller at that time.
“Q. Will you tell us what the conversation was?
“A. Well, I inquired into what took place as to this deal. I asked him all the questions I possibly could and I asked him about this check and what happened on that redemption.
“He said Collins came up there with the money— with this cheek and they redeemed their property at that time. And during the conversation he said he talked to Collins and he said, ‘Now, I appreciate what Mrs. Ooley has done for me, saving my property, and I want to make out a warranty deed to Mrs. Ooley to my property.’
“And he also said he talked to Collins and Collins said he had got all the papers all made up in advance. He said Collins said, ‘Well, I got all the papers all made up in advance and I want you to give me the warranty deed here and I will transfer it over to Mrs. Ooley when I get hack to Chicago.’ ”
At the close of plaintiff’s evidence, defendants Andersons’ attorney made a motion to dismiss plaintiff’s hill of complaint as to the Andersons, for the reason that there was no fraud claimed against these defendants. The court reserved decision on this motion.
Gforden Miller, one of the defendants, testified:
“On this Thanksgiving day visit my mortgage difficulties were discussed. She (plaintiff) informed me that she had some money. I say that she said she would give the money to Collins to help clear up the mortgage foreclosure. Collins was in no way interested in that property at that time. He at that time had no difficulty over any mortgage foreclosure. The difficulty with the mortgage was entirely mine. * * *
“There was no agreement whatever for any kind of security for any payment discussed at that meeting. I never discussed any matter of security so far as this money was concerned.”
The trial court held that in view of the fact that personal service had not been made on Collins, and because no appearance was made in his behalf, a judgment could not be rendered against Collins. In an opinion the trial court stated:
“Plaintiff claims a certain snm of money is dne her, and prays that the court require that the defendants come to a just and true accounting with plaintiff concerning the sums due her from said defendants and each of them, and that said defendants be decreed to pay plaintiff such sums as might be found to be due. The testimony offered in this case does not permit this court to enter any such decree for accounting, and the testimony relating to the interest, right and title of the defendants in and to the real estate certainly is not sufficient to warrant the entry of any decree for the establishment and foreclosure of a lien based on a constructive trust.”
A decree was entered, which provided:
“1. The plaintiff is not entitled to an accounting with the defendants concerning any money alleged to be due the plaintiff from the defendants or any of them;
“2. That no sum of money is due from the defendants or any of them to the plaintiff;
“3. That plaintiff is not entitled to a lien upon that real estate situated in the township of Keeler, Van Burén county, Michigan described as:
“Lots 6 and 7 of Heilds Sister Lakes Subdivision, according to the recorded plat thereof, being a subdivision of Section 32, Town 4 South, Range 15 West, according to the Government Survey thereof;
“4. That the plaintiff is not entitled to have a receiver appointed to take charge of said land and premises or to collect the rents and profits therefrom.
“5. That the plaintiff is entitled to no relief whatsoever in this cause.”
Plaintiff appeals and urges that the trial court was in error in holding that the evidence failed to establish an indebtedness from Miller and wife to plaintiff. In support of this claim plaintiff urges that the Millers knew the source of the money that was used to redeem the premises. It should be noted that plaintiff testified the Millers borrowed from her and agreed to convey to her. Plaintiff’s testimony is supported by her witness, Joseph Nagle, who testified that in August, 1950, Gforden Miller told him that the deed ran to Collins instead of plaintiff because Collins was to transfer the property to plaintiff in Chicago. G-orden Miller testified that he borrowed the money from Collins and not from plaintiff, and that he did not know where Collins got the money. He also testified that plaintiff had a warrant issued against Collins for embezzlement, and when she discovered that Collins could not be found, she then for the first time claimed that she loaned the money to the Millers.
It clearly appears that a question of fact is presented upon the issue of whether plaintiff loaned the money to Collins or to the Millers.
In Minasian v. Boyce, 340 Mich 438, 441, this Court said:
“Notwithstanding the rule that chancery appeals are heard on the record de novo, we are always mindful of the advantage possessed by the trial judge in hearing and observing the witnesses and, therefore, accord much weight to his findings.”
We find no convincing reason for reversing the trial court upon this issue.
Plaintiff also urges that she is entitled to a lien on the premises involved to secure repayment of the indebtedness. In support of this claim plaintiff urges that Collins was acting as her agent; that he violated his relationship as her agent, and took title in his own name rather than in the name of his principal. Plaintiff assumes that the Millers knew that she had advanced the money to redeem the property, and that the deed to the property was to be made out to plaintiff.
While it is true that a constructive trust may be impressed upon property, without a showing of fraud, where such trust is necessary to do equity or to prevent unjust enrichment, see Dighy v. Thor-son, 319 Mich 524, yet such constructive trust will not be imposed upon property owned by parties who have in no way contributed to the reasons for imposing a constructive trust. In our opinion no valid reasons have been advanced for imposing a constructive trust upon the property as against the Millers.
Plaintiff also urges that a lien should be placed upon the premises as against the defendants Pawlowski and Anderson. The theory advanced by plaintiff is that on August 12, 1950, defendants Pawlowski took a quitclaim deed from defendant Collins covering this property, and took an assignment of Collins’ interest in the Andersons’ land contract and notice of rescission; that defendant Collins • in acquiring title to the premises in his own name became a fraudulent grantee and held title impressed with a constructive trust in favor of plaintiff; that the burden was on defendants Pawlowski and Anderson to establish that, in acquiring title from defendant Collins, they did so in good faith and for a valuable consideration. Two reasons are given by plaintiff in support of her claim, namely, that the defendants Pawlowski received a quitclaim deed of the premises and defendants Anderson received a warranty deed of the premises, and that neither of the defendants Pawlowski or Anderson testified as to the consideration paid for the transfer of the property.
We are not in accord with plaintiff’s theory relative to the burden of proof. CL 1948, § 565.29 (Stat Ann §26.547) provides:
“Every conveyance of real estate within the State hereafter made, which shall not be recorded as pro vided in this chapter, shall he void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded. The fact that such first recorded conveyance is in the form or contains the terms of a deed of quitclaim and release shall not affect the question of good faith of such subsequent purchaser, or be of itself notice to him of any unrecorded conveyance of the same real estate or any part thereof.”
In Holly Lumber & Supply Co. v. Friedel, 271 Mich 425, we held that a subsequent purchaser who has his deed first recorded is presumed to be a bona fide purchaser without notice unless the contrary is made to appear, and that the burden of proving notice, either actual or constructive, is on the party alleging it. See, also, Federman v. Van Antwerp, 276 Mich 344.
In the case at bar there was an insufficiency of evidence to support plaintiff’s claim that defendants Pawlowslri and Anderson were not purchasers in good faith.
Plaintiff also urges that the lack of personal service on defendant Collins did not prevent her right to relief. Plaintiff bases her claim on the theory that the Millers and Collins, acting in concert, obtained plaintiff’s money, deprived her of security for its repayment, and afterwards used $10,000 which should have been paid to plaintiff to enter business as partners.
Plaintiff urges that it is not necessary to join all conspirators, as an action may be maintained against any one of the conspirators. She relies on Brown v. Brown, 338 Mich 492. It should be noted that decision in the Brown Case is based upon an established conspiracy. In the case at bar the trial court held that a prima facie case of conspiracy was not established, nor were there reasons for estab listing a constructive trust. Because of the findings of fact by the trial court, in which we find no reasons to disagree, the case of Brown v. Brown, supra, has no application. In the case at bar no personal service was made upon defendant Collins, nor did he cause his appearance to be entered in the cause. In such case no personal decree can be entered against him, see Booth v. Connecticut Mutual Life Insurance Co., 43 Mich 299. See, also, Eisner v. Williams, 298 Mich 215, and Specialties Distributing Co. v. Whitehead, 313 Mich 696. In the case of Specialties Distributing Co., supra, at pp 700, 701, we quoted with approval the following from Eisner v. Williams, supra, at pp 220, 221:
“ ‘That controlling issue gives rise to an action in personam, not in rem; and the Wayne county court cannot adjudicate that controversy without first having obtained jurisdiction of defendant Williams by service of process or voluntary appearance. Plaintiffs, who are nonresidents of Michigan, are not without an available forum. Obviously they can proceed in a Florida court where Williams is domiciled, or in any other court which can obtain personal jurisdiction over him.’
“It was also said:
“ ‘Further, presence in a State of security for payment of a debt does not in itself give the courts of that State jurisdiction in rem to litigate rights in the debt; and this has been held notwithstanding the security was in form a lien upon real estate. State, ex rel. Bowling Green Trust Co., v. Barnett, 245 Mo 99 (149 SW 311); Williams v. Fischlein, 144 App Div 244 (129 NYS 129); and Williamson v. Falkenhagen, 178 Minn 379 (227 NW 429).’”
Plaintiff’s remedy if any is against Collins in a jurisdiction where process can be personally served, or by entering in the cause.
The decree dismissing plaintiff’s hill of complaint is affirmed, with costs to such defendants who have entered their appearance in the cause.
Carr, C. J., and Butzel, Smith, Boyles, Beid, Dethmers, and Kelly, JJ., concurred. | [
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Smith, J.
Defendant-appellant Margaret Jordan claims an appeal as of right from a conviction and sentence of the crime of manslaughter. The appellant bases her right to appeal, without having first obtained leave to appeal, on PA 1954, No 53, amending CL 1948, § 650.1, as amended by PA 1953, No 4 (Stat Ann 1955 Cum Supp § 27.2591). Our immediate inquiry is whether appellate jurisdiction in a criminal case is conferred upon this tribunal by the filing of a claim of appeal.
Decision in the instant case is controlled by People v. Stanley, ante, 530.
For the reasons stated therein the motion to dismiss the appeal is granted, without prejudice and without costs.
Dethmers, 0. J-, and Sharpe, Reid, Boyles, Kelly, Carr, and Black, JJ., concurred. | [
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Cooley, C. J.
Action on the case for a negligent injury hy fire, alleged to have been communicated from defendants’ premises.
It seems that in 1877 defendants, being the owners and in possession of certain premises in the city of Alpena, and operating a steam saw-mill thereon, for the purpose of consuming the refuse matter arising from^the manufacture of lumber, such as slabs, saw-dust, &c., erected upon such premises a refuse burner, so called. Its general dimensions and description seem to be as follows: The base is cylindrical in form, and twenty-two feet in diameter inside. This diameter continues up some forty-one feet from the ground. From this point up thirty-eight feet it is conical in form, tapering from a diameter of twenty-two feet to a diameter of eight feet. Froni this point it again assumes a cylindrical shape eight feet in diameter for some eighteen feet higher. All this is made of iron. Surmounting this structure is a wire bonnet or spark-arrester, constructed of woven wire, with a 4x4 mesh, or sixteen holes to the square inch. This spark-catcher continues the diameter of eight feet for about eight feet higher, when it terminates in a cone, the apex of which is about two feet higher than the sides. There are no holes in the top, except the mesh as above referred to, the conical bonnet covering the entire structure. The apertures in the bonnet are about one-eighth and one-sixteenth of an inch square. The sparks which escape are freed at an altitude of about 105 to 107 feet from the ground.
Somewhat northeast of this refuse-burner, and at from -300 to 350 feet distant therefrom, plaintiff’s premises were situated, and they are described by plaintiff’s husband about as follows: They consisted of a boarding-house, a packinghouse, and an ice-house. The frontage was upon Thunder Bay river, and they extended back toward Water street, and their southerly line, if produced, • would have intersected Water street from one to two hundred feet north of a line drawn from the northerly side of the refuse-burner. The boarding-house, which was built in 1879, was the most northerly of the buildings, and farthest from the burner. Its dimensions were 50 feet long by 20 feet wide, and two stories high. It was a frame building, clapboarded and painted outside, ceiled inside, and having a shingle roof. Next adjoining and nearer the burner, and also facing the river, was the packing-house. This was built in 1881. It was 70 feet long by 20 feet wide, having 22-feet posts, making it two and one-half stories high; the lower story being used for packing fish, the second story being used for stowing ■ nets, seaming on nets, and doing work connected with nets; the upper floor being used as a store-room for everything connected with the fishing business. It was a wooden building, unpainted, and having a shingled roof. Commencing-immediately in the rear of this packing-house, and extending back towards Water street, was situated the ice-house, of the following dimensions: 102 feet long, 30 feet wide, with 20-feet posts'. It was sheeted inside, clapboarded outside, with a shingle roof, and unpainted. This was erected in the winter of 1877-78. The fire is alleged to have started about midway on the roof of the ice-house nearest the burner,- and evidence was given tending to show that at the time of the fire the wind was blowing from the direction of the burner. Immediately south of the plaintiff’s said premises, and about 60 or 75 feet distant, is situated a steam shingle mill, having a smoke-stack or chimney covered by a spark-catcher. There were also two chimneys or smoke-stacks used with defendants’ mill,, and located a little southeasterly from the refuse-burner.
The declaration contains six counts. The first alleges that defendants “negligently suffered the tops of said chimneys and refuse-burner to remain open without proper and sufficient spark-catchers or other contrivances therein, and without using any adequate means to prevent J;he escape of said sparks from said chimneys, refuse-burners, and fires as aforesaid.”
The second count alleges that defendants “ negligently suffered said chimneys and said refuse-burner to remain of insufficient height, and the tops thereof to remain open without proper catchers thereon, and without using any adequate means to prevent the escape of sparks from said chimneys and said refuse-burner, and suffered said mill to be operated and run in an unskillful and imprudent manner.”
The third count alleges that defendants “ negligently suf fered the said refuse-burner to continue and remain of insufficient height, and without a proper or sufficient spark-catcher on the top of the same, and negligently allowed large quantities of sparks of fire to be emitted from the top of said refuse-burner.”
The fourth count alleges that defendants “negligently suffered sparks of fire to escape from their said mill,” which is preceded by an allegation that defendants “did not or would not use reasonable and necessary precautions to prevent the escape of said sparks of fire from their said mill.”
The fifth count alleges that “ defendants persisted in thus operating and running their said mill with said fires, chimneys, and refuse-burner in a careless and negligent manner as aforesaid, and without taking proper and reasonable means and precautions "to prevent said danger to plaintiff’s said buildings and other said buildings near said mill, and to prevent said sparks from escaping from said mill chimneys and refuse-burner, and falling upon plaintiff’s said buildings ; ” and that “ said damage and destruction was caused by the negligence of said defendants in operating their said mill, and of their neglect to take such precautions as aforesaid.”
The sixth count alleges that “ divers sparks and brands of fire escaped and were thrown from their said mill by and through the mere carelessness and negligence in operating and running their said mill.”
The following statement presents the substance of evidence given on the trial:
Joseph Eoss was at work at Masters & Folkert’s'shinglemill, in July, 1882, when the fire occurred. The shingle-mill . was 60 to J5 feet from plaintiff’s biúldings. The fire caught in the center of the roof of the ice-house. During the same > summer, at different times, witness had seen cinders or live . sparks falling from the burner and catching around that shingle-mill ; perhaps half a dozen times: had also seen the same thing the year before, and at one time, standing with George Eobinson in front of Masters & Folkert’s office a live cinder fell at their feet. The wind was then in the direction of de fendants’ burner. Defendants’ smoke-stacks were covered the same all the season of 1882. At the time of the fire the burner had a round-top spark-catcher, caved in at the top. It was not so badly caved in the previous season. In the previous season witness saw live sparks from the burner catch. in the boarding-house of defendants. There was a time in that season when the defendants’ smoke-stacks had no fire-arresters on them. The witness did not know whether that was or was not the time when the fire caught in the boarding-house.
John Broker, who also worked at the shingle-mill, testified to other fires having been started by sparks from the burner.
Charles Parks, while working in the shingle-mill in 1880, had seen fires started by sparks from defendants’ burner at least five times. He had also, in 1880, seen several fires started by sparks from defendants’ mill, but did not notice whether they came from the burner or from the smoke-stacks.
George Bobinson testified that he run the shingle-mill from 1877 to 1882; that from 1877 to 1881 the burner and sparkeatcher remained in the same general condition; that every time the wind would blow from the south he would see large live sparks fall to the ground ; this would be from the direction of the burner; there would be no sparks when the wind was not very strong: the sparks came from the burner about the same in 1880 and 1881: one morning when the wind was blowing pretty strong, and the sparks were lighting up fires, he told H. D. Churchill that his burner was lighting fires, and Churchill said he would stop it; he would shut the draft. He did shut the draft and the sparks stopped. This was in the fall of 1881.
Other evidence was given which bore in the same direction. The plaintiff also offered to show that after the fire defendants changed the burner and spark-catcher, and since that time there had been no fire. The proposed evidence was objected to and excluded.
"When the evidence was in, counsel for the defendants requested the court to instruct the jury to return a verdict in their favor, for reasons stated in the record as follows: “We think, upon the part of the defendants, that there is no testi mony to submit to the jury upon the case alleged in the declaration. I thinlc we have the right to raise the question by moving to strike out the evidence of value. There are three grounds upon which the counsel sought to sustain his case, under his declaration. One is the insufficiency of the spark-catcher ; the second is the improper running of the mill; the third is insufficient height of the spark-catcher. There is no evidence that the sparks arose from improper running of the mill, or came from the mill. So far as the evidence shows, they came from the burner. Secondly, there is no evidence before the court that the height of Mr. Churchill’s is not sufficient: and we are remitted, I think, in this case to the question whether there is any evidence that the spark-catcher is insufficient, or in bad condition, or improperly constructed, at the time of the fire. In other words, whether we did negligently suffer the tops of the chimneys and refuse-burner to remain open without proper or sufficient spark-catcher, or other contrivances, thereon, and without using any adequate means to prevent the escape of sparks. The counsel has offered some evidence, which your Honor admitted, for the purpose of showing, and which has a tendency to show, and upon that point, I think, the counsel has a right to go to the jury, as to whether or not the fire did actually catch from sparks emitted from the burner of the defendants. Prima facie, the plaintiff has made out a case tending to show that this fire did originate from the sparks from the burner of the defendants ; but this, of course, does not make out a case against the defendants, because, certainly, the defendants had a right to run their burner.”
The court acceded to this view, and a verdict was taken for defendants accordingly.
By the instruction the case was made to turn upon the question whether there was any evidence tending to show negligence in the defendants in the use of an imperfect or insufficient spark-catcher. The circuit judge thought there was no such evidence. Proof that the injury probably resulted from sparks emitted from the burner was ample, but the judge was of opinion that this was insufficient to establish a liability unless there was some affirmative showing of negligence, beyond what might be inferred from the injury itself. And this as a general principle is no doubt true; the party counting upon negligence must adduce affirmative proof of it. Lake Shore etc. R. R. Co. v. Miller 25 Mich. 274; Macomber v. Nichols 34 Mich. 212; Grand Rapids etc. R. R. Co. v. Judson 34 Mich. 507; Brown v. Street Railway Co. 49 Mich. 153. But we are not satisfied that there was in this case such an absence of evidence as the judge supposed. Negligence, like any other fact, may be inferred from the circumstances; and the case may be such that, though there be no positive proof that defendant has been guilty of any neglect of duty, the. inference of negligence would be irresistible. Such a.casé is seen in Higgins v. Dewey 107 Mass. 494, a case of fire set for the burning of brush on agricultural lands. See also Kearney v. London etc. Ry. Co. L. R. 6 Q. B. 759; Field v. N. Y. Cent. R. R. Co. 32 N. Y. 339.
Now what are the facts in this case ? The defendants constructed, in connection with their mill, a burner, whereby they might be enabled to consume and get rid of the waste and refuse stuff of their business. The burner, as we understand it, was not a necessity to their business, but it was constructed as a means of saving something in the cost of removing sawdust, slabs, etc. It was what may be described as a tall and very large chimney, and the draught through it, when a fire was burning, was very strong and powerful. Only a very perfect spark-arrester could prevent a stream of large cinders pouring out of it when the draft was open. The evidence was strong that fires were frequently started by cinders which came from it; that such an occurrence might reasonably be looked for whenever a strong wind was blowing. The sparks, so-called, which ignited the plaintiff’s building, could not have been mere sparks: a spark could scarcely have retained sufficient vitality and substance, after being carried that distance, to communicate fire to a building. It was in proof that the spark-catcher was bent in at the top, as a consequence of the heat; and though there was no direct evidence that any wires were broken, or the openings in it increased, the very manner in which the sparks poured out of it, and started fires at a distance, would suggest, if it did not fully justify, an inference that, in some way, it was defective; and such an inference might have been fully warranted if the plaintiff had shown, as she offered to do, and as she should have been permitted to do, that after a change was made in the spark-catcher immediately following the fire, the dangerous emission of sparks through it ceased altogether. But the evidence the plaintiff gave was precisely such as, in Lehigh Valley R. R. Co. v. McKeen 90 Penn. St. 122, was held to require the court to submit the case to the jury.
But it is said on behalf of the defendants that the plaintiff was guilty of contributory negligence, and for that reason, if for no other, the verdict should be permitted to stand. The contributory negligence suggested is that the plaintiff erected her buildings within a hundred yards or so of defendants’ mill, after this dangerous burner had been put up, and did not cover them with metallic roofs. It is not suggested that the buildings were exceptionally combustible, or that the roofs were of different material to that made use of 'by the plaintiff’s neighbors; but it is said that, in view of the danger to which she was exposed from the burner, she should have incurred the extra expense of a metallic roof for protection, and was negligent in not doing so. This strikes us as a most extraordinary proposition. The defendants, not because it is a necessity to their business, but as a means of saving expense in getting rid of the refuse, erect this dangerous burner, and having, done so, it is argued that by this contrivance of money-saving to themselves they have imposed a burden upon all the property in the neighborhood, and subjected all lot-owners to the necessity of incurring extra expense in any future erections which they may make in the vicinity. To state the argument baldly, it seems to be that by erecting a neighborhood nuisance to save cost to themselves, the defendants have imposed upon everybody in the neighborhood an obligation of expense for pro tection against it, so that no one can be permitted to complain of the nuisance who declines to incur this expense. ¥e are aware of no principle of law which will justify this species of economy at the expense of others. In Beauchamp v. Saginaw Mining Co. 50 Mich. 163 it was suggested that the defendant could not afford to take certain precautions in the management of its business, which seemed necessary for the protection of the public; but the Court was of opinion that if the business at the particular place could not be profitably carried on, and the rights of third parties at the same time respected and protected, then it must either be carried on at a loss or abandoned. And this, we still think, is perfectly reasonable.
The plaintiff owned a city lot, upon which she had erected buildings of the materials most in use, covering them in the usual way. Surely there was no negligence in this: she was simply dealing with her own property in a customary and perfectly lawful way, interfering with no one else, and neglecting no duty. If defendants can limit her right to improve in the customary way, by their own erections, then they have superior rights to others, and their tenement dominates the neighborhood.. There is no basis for a suggestion of contributory negligence in the case. Negligence implies fault; and there can be no fault in a perfectly lawful and customary use of one’s own premises.
A new trial must be ordered.
The other Justices concurred. | [
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Campbell, J,
In this case Sager sued Shutts before a justice in replevin, alleging the detention of a mare and colt, each alleged to be worth fifty dollars.
Before pleading defendant moved to dismiss, on the ground, among others, that the affidavit was insufficient to give jurisdiction because not stating that the property did not exceed in value $100. Comp. L. § 5291 [How. Stat. § 6856.] This motion was refused, and on trial plaintiff obtained judgment. On special appeal the circuit court of Kalamazoo county held the justice erred in retaining jurisdiction, and set aside the proceedings, with costs, as on certiorari.-
We think this was proper. The purpose of the statute is to restrict the jurisdiction of justices, and prevent the seizure of valuable property under false pretexts. We have held that even a positive averment that value did not exceed $100 would not prevent judgment for either party before a justice, at least up to $500. Henderson v. Desborough 28 Mich. 170. Property worth more than $100 may be truly averred to be worth that sum, and although the defect may be waived, it is nevertheless a fatal defect if timely insisted on, because it leaves room for fraud in beginning suits.
As costs on appeal, on giving judgment, are discretionary, we see no reason why the judgment here is not correct. Some verbal criticism is made that the reversal refers to reasons appearing in the affidavit for appeal, instead of for errors in the justice’s action. As the errors must be averred in the affidavit, we see no force in this suggestion.
The proceedings at*the circuit must be affirmed.
The other Justices concurred. | [
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Coolsey, C. J.
The purpose of this suit is to determine the basis for the taxation of the complainant in this State for the year 1880. It has been argued in this Court as a question of statutory construction merely, and as such we shall consider it. The following are the material facts which raise the question.
Previous to October 21, 1864, the Peninsula Railroad Company was operating a line of railroad in the Upper Peninsula of the State of Michigan, having been organized for that purpose under the general act for the incorporation of railroads, approved February 12, 1855. Sess. L. 1855, p. 153; Comp. L. 1857, p. 631. The fiftieth section of that Act provided that “ any railroad company in this State, forming a continuous or connected line with any other railroad company, may consolidate w-ith such other company either in or out of this State, into a single corporation: provided, that no such companies having parallel lines, or lines diverging- and converging, but being conterminous, shall be permitted to consolidate themselves into one corporation.” And this and subsequent sections proceed to specify tbe manner in which the consolidation may be accomplished, and the effect it shall have upon projaerty, obligations, contracts, etc.
Previous to the day first named, the Chicago & Northwestern Railway Company was operating lines of railroad in the states of Illinois and Wisconsin, and' on that day it entered into articles of consolidation with the Peninsula Railroad Company, whereby the two were to be merged into one, under the name then held by the Illinois and Wisconsin corporation, and these articles were duly executed and made a matter of record, as was required by the Act above mentioned.
After such consolidation, the Chicago & Northwestern Railway Company from time to time consolidated with other companies owning and operating roads in different States, until at the end of the year 1880, the total mileage of the company was 1037.73, of which 406.40 was in Illinois, 458.88 in Wisconsin, and 172.45 in Michigan. The company was also operating the roads of other corporations which had been leased to it in perpetuity, the total mileage of which was 487.51, all in the State of Iowa. It was also operating with its own the roads of other companies, having a mileage of 195.70, of which 83.50 was in Illinois, 8.50 in Iowa, 66.04 in Wisconsin and 37.66 in Michigan. These last-mentioned roads maintained their corporate existence, but all accounts were made a part of the general accounts of the Chicago & Northwestern Railway Company, without discrimination.
The principal corporation also operated, during the year 1880, 1049 miles of the road of corporations of which it was owner of the capital stock, and which are spoken of in the record and arguments as proprietary roads. Of this mileage 10.25 was in Illinois, 155.45 in Iowa, 222.28 in Wisconsin, 473.99 in Minnesota, and 277.61 in Dakota. The grand total was 2770.52 miles, of which 500.15 was in Illinois, 651.46 in Iowa, 747.20 in Wisconsin, 413.99 in Minnesota, 210.11 in Michigan, and 247.61 in Dakota.
In 1873 the General Railroad Law of the State and other Acts on the same subject were repealed, and a new law en acted in the stead thereof, with a declaration therein that “ the organization of all corporations, under the provisions of either of said acts, shall be deemed and taken to be organizations under this Act, and all rights, obligations, and liabilities contracted or incurred'by any of such corporations thereunder, or under the provisions of any law now in force, not inconsistent with the provisions of this Act, shall continue of the same force and effect as though such acts or law luid not been repealed; and all such companies, from and after the taking effect of this Act, shall be subject to all the provisions hereof as fully as though such organization had been perfected hereunder.” 1 Sess. L. 1873, pp. 496, 543. The revised law required that every railroad company should report annually to the Auditor General all its operations, the business done, and the receipts and expenses; and imposed a penalty of $1000 for any failure to make a report, or for a false report. It farther provided as follows:
“ Every company formed under the provisions of this Act shall, on or before the first day of July in each year, pay to the State Treasurer, on the statement of the Auditor General, an annual tax upon the gross receipts of said company, computed in the following manner, viz.: Upon all gross receipts not exceeding four thousand dollars in amount per mile of road actually and regularly operated for the conveyance of passengers and freight, two per cent, of such gross earnings; upon such gross receipts in excess of four thousand dollars per mile so operated, three per cent, thereof; which amount or tax shall be in lieu of all other taxes upon the property of such companies, except such real estate as is owned and can be conveyed by such corporation under the laws of this State and not actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road; but such real estate so excepted shall be liable to taxation in the same manner, for the same purposes, and to the same extent, and subject to the same conditions and limitations as to assessment for taxation, to taxation, and to the collection and return of taxes thereon as is other real estate in the several townships within which the same may be situated. And when a railroad lies partly within and partly without this State, there shall be paid such portion of the tax herein imposed as the length of the operated road lying within this State bears to the whole length of the operated portion thereof.” 1 Sess. L. 1873, pp. 530-532.
The lines of road operated by the complainant within the State of Michigan were all built by independent companies as independent roads; and the construction which was put by the officers of complainant upon the provisions of the Act of 1873 respecting taxátion, was that the company should report to the Auditor G-eneral the gross receipts from the Michigan roads, and be taxed thereon. They accordingly, while reporting the operations of the company in full, specified separately the gross receipts upon the Michigan roads. The State authorities acquiesced in this construction, and received from the complainant the tax upon the Michigan gross receipts up to and including the year 1878, without, so far as appears, any objection being made. In 1879, however, the State assessed a tax against the complainant, upon its annual report, on a basis which assumed that all the roads which were operated by the complainant in its own name, and the accounts of which were kept together — which would include all the roads operated by it except the proprietary roads — were to be considered for the purposes of taxation as one road, lying partly within and partly without the State, and that the Michigan taxation should be in respect of a proportion of the gross receipts measured by the proportion which the mileage in Michigan bore to the whole mileage. The officers of the company paid this tax, without noticing that the basis of taxation had been changed, and in the following year made their report as they had done before, embracing in it the operations of all the roads except the proprietary roads; and computing the tax, at the rate specified in the statute, upon the gross receipts upon the Michigan roads, paid to the State treasurer the sum of $54,270.67, which would be the amount of the tax, computed on that basis. The State authorities, however, again made a computation on the basis adopted in 1879, the sum of which was $57,730.24, and they demanded of complainant the difference between these two sums, and proposed to issue process for its collection under the provisions of Pub. Acts 1879, p. 41. It was to enjoin this collection that the bill in this ease was filed.
The contention on the part of the State is that after a company formed in this State under the general law has been consolidated with a company formed in another state, or in two or more other states, it is thereafter to be deemed and considered a company “formed under” the general law, and its road a railroad which “lies partly within and partly without this State,” within the meaning of the General Railroad Law, and that, therefore, the consolidated company must pay in this State a tax determined by the proportion of the operated road within the State to .the whole length of the operated portion thereof. And it is in reliance upon this construction of the law, and this understanding of the light in which the road is to be regarded, that this tax is said to have been assessed.
One obvious difficulty with this view, when applied to this case, is that the tax has not been assessed in accordance with it. The gross receipts upon which the tax has been assessed are not the gross receipts of the consolidated roads now constituting the roads of the Chicago & Northwestern Railway Company in the states of Illinois, Wisconsin and Michigan, but they are the gross receipts of the consolidated roads swelled by the addition of those of 683.21 miles of other roads with the companies owning which there has never been any consolidation, and the major part of which is not within the limits of the three states in which the consolidated company has its existence. If, then, the defense is right in its construction of the statute, it is still plain that the tax is not justified by that construction, because it has not been followed in the computation which has been made.
The answer made on behalf of the State to this objection is that the complainant in keeping its accounts and making its reports has not discriminated between the gross receipts from the business done on the consolidated roads and that done on the other roads which it has operated, and for that reason it was proper for the State authorities to treat all the roads as one, and to hold the complainant estopped from disputing the propriety and legality of an assessment based upon the report so made. This answer has plausibility, but we do not conceive it to be conclusive or sound.
It sometimes becomes an act of simple justice in the law to hold a party to the truth of something he has asserted, and not to suffer-him to aver or prove the contrary, because to do so would be to mislead and prejudice some other party who has acted in reliance upon the truth of his assertion. The rule under which this is done is a simple rule of justice: Maxwell v. Bay City Bridge Co. 41 Mich. 453; De Mill v. Moffat 49 Mich. 125; and the cases must be rare in which it can be applied in behalf of the State against its citizens, when it is seeking to collect its revenues, unless the citizen is attempting some fraud upon the law, or some evasion of its provisions. What the State aims at in its revenue laws is to take from each of the persons liable the just proportion which he ought to contribute to the public burdens; and it is neither justice nor sound public policy to seize upon advantages — if any should offer — to make any one pay more than the just share which a proper construction of statutes framed to insure equality would require of- him. If a mistake has been made which would give the opportunity for such advantages, the State is interested rather in correcting it than in working out results not intended by the law through the means of it.
We do not understand that any fraud is charged upon complainant in keeping its accounts and making its reports as it did. The fact that for several years the State authorities acquiesced in the construction put by the railroad officers upon the statute is very strong evidence that the construction itself, whether correct or not, was not forced or altogether without reason. And if under such circumstances the construction was held to be erroneous, the law, instead of applying a rule of estoppel, the only justification for which would be some attempted wrong on the part of the complainant which required the estoppel to circumvent it, could in common justice do nothing else but adopt some-method, if any was available, whereby the tax might be laid according to the true intent of the statute. This might involve an inquiry into the facts; but the court, in a proper case, would have ample power for that purpose.
But there can be nothing in the nature of an estoppel in this case, for the further reason that there has been no misleading in respect to the facts. It appears upon the face of the report upon which the tax has been assessed, that the gross receipts reported are for other roads in addition to the consolidated Chicago & Northwestern Railway Company roads. What the State can complain of, if anything, in the report, is not that it misleads by untrue or deceptive statements, but that it fails to give all the information required' to enable the tax to be laid according to the construction put upon the statute by the State officers. If this is all the fault with the report, it is a case not for an estoppel but for a call for further information.
This view would not dispose of the case; it would only render necessary further inquiries if the construction now put by the State authorities on the Act of 18Y3 is determined to be the correct one. It becomes necessary, therefore, as the next step in our examination, to pass upon that construction.
The complainant, as has been stated, has been consolidated with one railroad company organized under the laws of Michigan, and it also operates the road of another company organized under its laws with which it has not been consolidated. The Act of 18Y3 provides that every company formed under its provisions shall be assessed for taxation on the basis therein prescribed, and it further provides that the pre-existing companies formed under general laws, shall be deemed and taken to be organizations under that Act. The Michigan companies are therefore beyond dispute taxable under the Act of 18Y3, and the only question that can arise concerns the one that has become consolidated with the complainant. That question is whether the complainant since the consolidation is to be considered a “company formed under the provisions” of the statute of Michigan, whose “ road lies partly within and partly without the State,” so as to be taxed in respect to the gross earnings of the whole consolidated company in the proportion which the mileage in Michigan bears to the whole mileage.
It is said with truth that the consolidation of the Michigan corporation with a corporation existing in other states was only accomplished by the consent of this State and by following the steps prescribed by its statutes, and that it could not have been accomplished in any other manner. This being so, it is further said that the consolidated company is in the strictest sense a company formed under the provisions of the Michigan statute. And it is added that when the statutes make provision for the consolidation of Michigan corporations with corporations formed in other states, they must be supposed to have the consolidated companies in contemplation when they provide a basis for the taxation of railroads lying partly within and partly without the State.
This last consideration might be very conclusive if it were impossible for a railroad company to have a road partly within and partly without the State otherwise than by a consolidation of corporate organization. But it is matter of common notoriety that railroad corporations, as well as corporations for other purposes, are often allowed to exercise their corporate functions in other states than those from which they derive their powers, by the assent of such states, either expressly given by statute or implied from acquiescence. This fact was brought under judicial notice in Railroad Company v. Harris 12 Wall. 65; Erie Railway Co. v. Pennsylvania 21 Wall. 492, and in many other cases, and any general railroad law that failed to make provision for such a possible road could scarcely be said to be complete and adequate to all probable contingencies and needs. It is not therefore by any means necessary to suppose that the Legislature must have had consolidated roads in mind when providing for the taxation of companies whose roads were not entirely within the State. But the contrary view is strengthened by the fact that in this State there have probably always been one or more roads, besides those consolidated under the general laws, lying partly within the State and partly out of it. The very first road constructed in the State, and which had for its termini Toledo and Adrian, was of this description; and it would have been strange indeed, with that road and others similarly circumstanced in mind, if the Legislature had not contemplated the possibility of companies being organized under the provisions of the general law which would be permitted to extend their lines into other states, and to‘exercise corporate powers in such states, without any new grant of franchises except such as were• necessarily included in such permission.
If, however, we are satisfied that the Legislature had such roads in mind, it must be admitted that it does not prove they did not have consolidated roads in mind also ; it only shows that the words of the statute are not idle and inoperative whether they are or are not applied to the consolidated roads. It is necessary, therefore, to look further before the question now in issue can be conclusively determined.
One difficulty with the position taken by the State is that since the consolidation with the Michigan corporation, and which was the only consolidation which was ever assented to by this State, other consolidations have been going on until the consolidated roads form an immense system and not merely a single road. If we. concede that the consolidated company as it was formed in 1864 can be said to have been a company formed under the laws of Michigan, how can this great system of roads that has been united without any reference to our laws, and under the sole authority of other sovereignties, be also said to be formed under, or to owe its existence to, Michigan laws ? The Michigan statute carefully limited the authority to consolidate; and roads that were, or would naturally be, competing roads between the same points, were not allowed to be united under it; but if the view now pressed by the State is sustained, this restriction may be nullified by consolidations subsequent to the one which first merged the Michigan corporation, and we shall be obliged to hold that we have a corporation formed under the statutes of Michigan which the statute itself expressly forbids. But a postulate that in itself is a contradiction in terms cannot possibly be made the basis for judicial action. See International &c., R. R. Co. v. Taylor 53 Tex. 96: s. c. 4 Am. & Eng. R. R. Cas. 308; State v. Vanderbilt 37 Ohio St. 590: s. c. 8 Am. & Eng. R. R. Cas. 657.
A further consequence would be involved in this conclusion, which would at least be anomalous, namely, that the amount of State taxation of this or any other such corporation might to a large extent be changed by the corporation itself without the consent of the State and in spite of it. If consolidations may go on indefinitely in distant states and territories — every consolidation of a new line affecting the proportion of gross earnings to the mile of road operated — it is easy to imagine a state of tilings under which the tax which the State of Michigan would collect might be much less than it would be if it taxed the gross earnings within its own limits, and much less than if it levied the tax upon the road as first consolidated. A fact brought out by this record will serve to illustrate this as well as any other. Had the receipts of the proprietary roads been taken‘into the account in assessing this tax, the amount payable to the State on the assessment for 1880 would have been some $13,000 less than has already been paid; and this for the simple reason that the gross receipts from the proprietary roads were very much ■less in proportion to the mileage than the receipts from the consolidated and leased lines. Had the complainant, therefore, consolidated those roads with itself, instead of operating them without consolidation, the State, by acts to which it never assented, and which there is no reason to suppose its Legislature ever contemplated, would have lost a very large share of the tax which it has already collected, and which, having been levied upon the basis of earnings within the State, must be deemed to be a fair and just tax. It is not likely that the Legislature ever intended that the tax on those corporations should be to so large an extent independent of State volition. It is true that the same thing might happen to some extent by the extension of Michigan roads by mere acquiescence or permission into other states; but it is not likely that long lines would be thus constructed without new grant of corporate powers by the state or states into which the extension was allowed ; much less that extensive systems of roads would be created like the one now being considered. Such extensions without new grants of power are more likely to be short, and of local rather than general interest in the state within which they are made.
¥e appreciate very fully the difficulty of determining under all circumstances in what light we are to regard the anomalous organizations which are formed by the consolidation of two or more corporations which have received their corporate powers from different sovereignties. Some of the difficulties were alluded to in the case of Lake Shore &c. Ry. Co. v. People 46 Mich. 193. It is familiar law that each corporation has its existence and domicile, so far as the term can-be applicable to the artificial person, within the territory of the sovereignty creating it: Marshall v. Baltimore &c. R. R. Co. 16 How. 314 Chicago &c. Ry. Co. v. Whitton 13 Wall. 270; Muller v. Dows 94 U. S. 444; Vose v. Reed 1 Woods 647; Allegheny County v. Cleveland &c. R. R. Co. 51 Penn. St. 228; Lake Shore &c. Ry. Co. v. People 46 Mich. 193; it comes into existence there by an exercise of sovereign will; and though it maybe allowed to exercise corporate functions within another sovereignty, it is impossible to conceive of one joint act, performed simultaneously by two sovereign states, which shall bring a single corporation into being, except it be by compact or treaty. There may be separate consent given for the consolidation of corporations separately created; but when the two unite they severally bring to the new entity the powers and privileges already possessed, and the consolidated company simply exercises in each jurisdiction the powers the corporation there chartered had possessed, and succeeds there to its privileges. Mississippi Valley Co. v. Chicago &c. R. R. Co. 58 Miss. 846 : s. c. 8 Am. & Eng. R. R. Cas. 575. It may well happen, as indeed it often has, that the consolidated company will be a corporation possessing in one state very different rights, powers, privileges and immunities to those possessed in another, and subject to very different liabilities. Delaware Railroad Tax 18 Wall. 206, 228; Lake Shore &c. Ry. Co. v. People 46 Mich. 193. And after the consolidation each state legislates in respect to the road within its own limits, and which was constructed under its grant of corporate power, the same as it did before. Peik v. C. & N. W. Ry. Co. 94 U. S. 164. And it cannot follow the new organization with its legislation into another state. Chicago & N. W. Ry. Co. v. Whitton 13 Wall. 283. It has been said that the consolidated company exists in each state under the laws of that state alone: Muller v. Dows 94 U. S. 444, 447; and this is the effect of the decision in Dela/ware Railroad Tax 18 Wall. 206, and in many other cases. It also follows necessarily from the doctrine maintained by the Federal Supreme Court in respect to the citizenship of corporations. That doctrine is that a corporation is deemed to be a citizen of the state which has created it, and an organization of members who are citizens of that state. When, therefore, two corporations created in different states consolidate, though for most purposes they are not thereafter to be separately regarded, yet in each state the consolidated company is deemed to stand in the place of the corporation to which it there succeeded, and of its members, and consequently to be a citizen of that state for many purposes, while in the other state it would stand in the place of the other corporation in respect to citizenship there. Ohio &c. R. R. Co. v. Wheeler 1 Black 286; C. & N. W. R. Co. v. Whitton 13 Wall. 283; Allegheny County v. Cleveland &c. R. R. Co. 51 Penn. St. 228; Texas &c. R. R. Co. v. McAllister 59 Tex. 349: 12 Am. & Eng. R. R. Cas. 289.
It follows that the Michigan corporation, which has been consolidated with complainant, is alone of the consolidated organizations to be considered a company formed under the laws of Michigan, and it should have been taxed on the basis on which it was taxed from 1873 to 1878. If the manner in which the consolidated company kept its accounts created any embarrassment, the difficulty might no doubt have been obviated on the order of the Railroad Commissioner. This, however, is not very important now, as the basis of taxation was changed in 1883, and the question now considered is of practical interest only as regards taxes heretofore accrued.
The complainant is entitled to the relief prayed.
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Campbell, J.
This action was brought by a brakeman who had been employed by the Northwestern & Grand Trunk Bailroad Company from November, 1879, till Janu ary, 1880, on the line between Battle Creek and Flint, for an injury received while coupling cars at Hamilton station, on the morning of January 2,1880. The present defendant is a company formed by consolidating that road with others in April, 1880. The same case was before us in 1882, and decided at the October term of that year, as reported in 49 Mich. 184.
The accident happened about daybreak. The train on which plaintiff was employed stopped at Hamilton, going west from Flint, and the engine was backed from the west end of a side track to pick up a car standing on the side track. This side track was laid about thirty feet southward from the main track, to be convenient to an elevator, and was not ballasted. At the place where the accident happened it crossed the upper part of a pond-hole, which was there eight or ten feet wide, and extended some distance southward at a width of several rods, the ties at that place being blocked up several inches. The car to be taken stood with its end over this spot, and before the engine backed very near, plaintiff went to the place and attempted to remove the link, so as to make the coupling with the link in the moving ear. In doing so he stood on the ties, and at that time he saw they were not ballasted, but claims he made no particular examination, but stood on the ties because he thought it safer. Finding the link too fast to remove, he went back to the approaching car attached to the engine, which was about twenty-five feet off and moving slowly, and took out the link from that, and walked back, carrying that link in his left hand and his lantern on his left arm. As the cars came near together he put his left hand on the corner of the stationary car and leaned over, when his fingers slipped off and he fell forward. His foot went into the hole between the ties, and his right hand caught the link, which was hit by the draw-head of the approaching car and drawn into the opening so as to crush the hand. At this time the ground was lightly frozen, and the water in the pond skimmed over with ice, with a thin coating of snow which had recently fallen.
The negligence which plaintiff complains of is the failure of the company to grade and ballast the side track at that place, so as to give a solid surface. The questions raised relate chiefly to the responsibility of the defendant, the negligence of defendant’s predecessor, and the duty of plaintiff to take proper care himself.
Upon the former hearing the case made by the proofs was held fatally variant from the declaration, which was regarded as charging the defendant with allowing a deep hole or rut to remain in its main track. It was our opinion that the duties relating to the main and side tracks were not the same, and that the difference was important. It was also held that such an open and obvious break in the surface of the ground could not be regarded as involving the same duty in an employer towards his men, as one .which was known to him hut not likely to be known to them. The other matters then considered are not now in the record. Having reversed the judgment on these grounds, the case went back to the circuit, where the plaintiff was allowed to recast his declaration. No point is now made on the pleadings.
In our opinion the consolidation, which we assume to have. been regular, made the defendant liable to the same extent as its predecessor, under whose employment plaintiff was at the time of the accident. This seems to be enacted by section 30 [of Article II] of the Kailroad Act [How. Stat. § 3344], which makes the new company subject to all “ debts, liabilities, and duties,”, as if “ originally incurred by it.”
The question of contributory negligence hardly comes up on this record as a matter of law. Plaintiff’s conduct in attempting to hold on to the stationary car with his left hand and arm, hampered by a coupling link and lantern, was certainly open to comment, as well as his failure to examine the ground more closely, but it is not at all clear that his slipjflng over should be regarded as anything more than accidental. ¥e are not prepared to say that as matter of law we are bound to hold he was culpably negligent.
But on the other hand it is not true, as is sometimes imagined, that as between, employers and persons in their employ, all mishaps arising from lack of perfect condition of all their appliances and premises are taken out of the category of accidents. Towards some persons and under some circumstances, injuries are legally held accidental and not actionable, when as to others differently situated a much more extended duty exists, and liability is imposed when there is no actual wrong involving moral culpability. The question here arises upon this distinction.
The track in question formed no part of the main track, and remained, as the proofs all show, in the same condition as when built, before the Northwestern & Grand Trunk Company came into possession of it, before plaintiff entered their employ. The basin or depression was one of large size and not artificial. The persons who built the road across the corner of it did not attempt to fill it up, but laid the track as would be done in any other case where carried over a wet swale, and it was treated by every one as requiring no change. It is matter of every-day experience that similar openings for ditches or other depressions are very common, and that it would not always be proper to close them. In the present case there is no evidence of allowing what was once finished up, and made apparently perfect, to become defective and dangerous because so changed. If any fault existed here it was a fault of construction, which was as blameworthy the day the track was first put in use as at any time afterwards. And as its nature was patent to any ordinary observer under ordinary circumstances, no considerablejdme could be allowed to any new tenant for removing the defect.
In our opinion the case comes within the same principle with Michigan Central Railroad Co. v. Austin 40 Mich. 247, where a switchman, while standing on the foot-board of a tender on a side track, was shaken off, while shifting hands, by a defect in the track, and hurt.
It was held in that case that a railroad company owed no duty to its employees to make its side tracks perfect, and that the risk of such imperfections was one of the risks of the business. It is not shown or claimed that this track was unsafe for any of the ordinary uses of side tracks, and the accident did not arise from any such defect. The lay of the land was such as to be readily seen by any one who passed along the track at ordinary times. The plaintiff knew that the road-bed there was not ballasted, and was bound to know that there might be irregularities of surface anywhere. The chances of such an accident were not such as to suggest danger as very likely. There was, of course, a probability that ■ cars might have to be coupled at one place as well as another, and sometimes when there was not much daylight. But the company had a right to expect that every brakeman would use reasonable care in examining his footing and surroundings, and we think that they cannot be regarded as at fault for not guarding against an occurrence which was as likely to happen in any place where the ground was uneven, and to completely insure against which would require a side track to be as expensively built as a main track. Their duty to plaintiff was not to see that he actually did know what the exact condition was at this point. They had a right to rest on the probability that any one would know what was generally to be seen by his own observation, or by information from those who were on the spot working with him, and who might fairly be expected to do their duty.
There is much reason to regard the accident, from plaintiff’s own testimony, as the immediate consequence of his hand slipping from the car, and of nothing else. But we place no stress upon this, because we do not think any case is made out of a violation of duty to plaintiff on the part of his employers. The case should not have gone to the jury.
The judgment must be reversed and a new trial ordered*
The other Justices concurred. | [
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Sherwood, J.
This action is trespass brought by the plaintiff, who was owner of a real estate mortgage, for the value of a building removed from the mortgaged premises by the defendants without the knowledge or consent of the plaintiff, pending proceedings foi the foreclosure of the mortgage, and which so far lessened his security as to render it insufficient to satisfy the mortgage debt.
The mortgagor died insolvent during the progress of the foreclosure proceedings, leaving four minor children, and the register of the circuit court in chancery was duly appointed their guardian ad litem in the suit. He put in no answer for the defendant minors; stipulated with complainant’s solicitor to waive all irregularities, notices and time to make answer, and allowed the complainant to take his decree instanter. The decree was so taken for complainant, and the mortgaged property sold under the same, bringing several hundred dollars less than the decree called for. The plaintiff in his declaration counted alone upon the foreclosure and sale of the mortgaged premises, and the existence of a deficit thereunder to satisfy the plaintiff’s debt, and the removal of the building, as the grounds for his recovery.
On the trial the files and records of the circuit court in the foreclosure proceedings were offered in evidence, part by one party and part by the other. / They were objected to by the defendants’ counsel because they showed an incompleted foreclosure, ii-regularities and jurisdictional defects, which rendered them void. Counsel for the complainant admitted that on account of the irregularities pointed out the decree was worthless, and thereupon the court held it void, and directed a verdict of not guilty for defendant. This ruling is now under review in this Court.
We find no error in the ruling. Until the plaintiff could show a deficiency upon a regular and legal foreclosure and sale of the mortgaged property in satisfying the plaintiff’s claim, he could not maintain his suit for the cause alleged under his declaration; and this he failed to do, and the direction given to the jury was fully warranted.
We do not mean to be understood that' in no case, when buildings are removed from mortgaged property which are a scanty or insufficient security, in the manner these were, this action cannot be maintained; but in this case, under the declaration, it became necessary to show the deficiency existing under a valid foreclosure and sale. The plaintiff failed in this, and the judgment of the circuit court must be
Affirmed with costs.
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Sharpe, J.
Defendant Richard C. Fansler, appeals from a decree awarding plaintiff, Miriam P. Fansler, a divorce, custody of a daughter and a property award. Plaintiff filed her bill of complaint on May 14, 1953, alleging that the parties to this suit were married December 16, 1939, at South Bend, Indiana; that plaintiff and defendant lived and cohabited together as husband and wife until on or about February 15, 1953; that as a result of said marriage 1 child was born, namely, Sandra Fansler, 12 years of age at the time the bill of complaint was filed; that for several years previous to June 12, 1952, defendant was addicted to the immoderate use of alcoholic liquors; that defendant frequently remained away from home until late at night,' and when he returned intoxicated he would engage plaintiff in arguments; that defendant’s habitual drinking caused plaintiff worry because of his operation of equipment while under the influence of intoxicants; that defendant when drinking would engage in loud and boisterous conversation; that on June 12, 1952, defendant was committed to the Kalamazoo State Hospital by the probate court of Branch county, and remained there until December 20, 1952; that on defendant’s return home from the Kalamazoo State Hospital, he continually blamed plaintiff for his commitment, and found fault with her for her operation of business affairs during his confinement; that plaintiff was obliged to secure employment in order to pay expenses of living for the parties and their child; that on May 1, 1953, defendant was restored to soundness of mind; that defendant has persisted in a course of behavior which makes continuance of the marriage relationship an intolerable burden to plaintiff.
Defendant denied most of the material allegations in plaintiff’s bill of complaint, alleging that his memory as to occurrences prior to his adjudication as mentally incompetent is vague; that he could have been unreasonable prior to his commitment as his mental illness preceded the commitment by a long period of time; that the burden of the family support was never shifted to plaintiff while defendant was confined to the Kalamazoo State Hospital, as defendant’s estate was more than sufficient to take care of the plaintiff’s and daughter’s requirements; that he found no fault with plaintiff’s operation of business affairs during his confinement; that since defendant’s restoration to soundness of mind his conduct towards plaintiff was proper, and he did no act that could be construed to be grounds- for divorce ; that all acts prior to defendant’s restoration to soundness of mind were condoned by plaintiff.
On trial in the circuit court of Branch county both parties offered testimony to substantiate the claims made in their pleadings. After listening to proofs, the trial court came to the conclusion that plaintiff had made out a case for a decree of absolute divorce and entered a decree accordingly. The court, by its decree, gave to plaintiff the home valued at $15,000, subject to a mortgage of $5,698.60, or equity of $9,-301.40, plus the 2 vacant lots adjacent to the home, which combined valuation was $700, and also the household furniture which was valued at approximately $1,000. The trial court also ordered the defendant to pay $12 each week for the support and maintenance of the minor child, until said child reaches the age of 18. The defendant was granted, as his separate property, all construction equipment pertaining to his business operation, all motor vehicles owned by the parties, and all other property, the title to which stands in his name.
Defendant, in his reasons and grounds for appeal, urges:
“1. That [the] court erred in granting plaintiff a divorce.
“2. The court erred in not finding no cause of action.
“3. The court erred in not finding that defendant was mentally ill all during the time plaintiff alleges acts of cruelty.
“4. The court erred in not finding that said parties became reconciled.
“5. The court erred in not finding that plaintiff condoned defendant’s conduct.
“6. The court erred in finding that plaintiff’s loss of affection for defendant over a long period of time was warranted and resulted from legal cruelty.
“7. The court erred in finding that defendant’s occasional drinking over a period of ‘many years,’ and his boisterousness during the time when he was mentally ill constituted grounds for divorce.
“8. The court erred in an inequitable division and distribution of property.
“9. The findings of the court, in the light of the evidence constitute a breach of discretion on the part of the court.”
Question 1: Did the trial court err in granting plaintiff a decree of divorce?
Plaintiff testified that shortly after her marriage to defendant he became addicted to the immoderate use of alcohol, and on numerous occasions, he would come home from work at late hours intoxicated; that in 1946 when defendant started his own business the situation was getting worse; that on a social evening out together defendant would pick arguments, and in public would refer to plaintiff as “my old battleaxe,” and that:
“Previous to June 12,1952, he was drinking heavily and was gone almost continually. He just did not seem to stay in the house at all and if he were home, he would drink 10 or 12 beers in the evening. His excessive drinking and his operation of heavy con struction equipment caused me to worry. Our daughter was upset by the discussion we had and was a nervous child. Since we have been in St. Joseph she is more settled. When we were in public, he would be loud, and boisterous and on New Year’s Eve, the year before last, I went to the Eagles hall to meet him and as I walked in he said, ‘Here comes the old lady now,’ and proceeded to crawl under the table. I think we stayed about a half hour after that and came home. I was embarrassed. That was typical of his attitude. He wanted to be the center of attention. * * *
“In February of 1953, we ceased living together as man and wife although we continued to occupy the same dwelling for a time.
■ “After his restoration to soundness of mind on May 1, 1953, before I started this action, we had 1 argument and from time to time he expressed dissatisfaction with me and on 1 occasion he informed me he was handling his own affairs and if I did not like it he thought we should get a divorce. He did not like it when my daughter and I would go out together but he would not say anything- about it but disregarded us on those occasions. He criticized my handling of the business to other people and I have heard him say to others that he had no business having to be put in Kalamazoo and that I mismanaged his affairs. He never accepted the fact that I alone had nothing to do with it. * * *
“There were sufficient amounts of income to keep me and our daughter at the time ‘Red’ was confined, but the doctor told me he would probably be off a year or possibly more and I did not know how long he would stay and I felt that I should seek another job so that if he should be at the hospital longer, I would be able to take care of ourselves. * * *
“My husband was always of a nervous disposition, high-strung, easily excited, eyer since we were married. I do not think there was more than 1 or 2 years that we lived together what you would call happily.
“I lost my affection for him because of his continual drinking, and not being able to depend upon him for anything so far as the family was concerned. I tried to talk to him and he would promise to stop drinking and maybe for 2 or 3 weeks he would stay home, then he would start in again. When he returned to Cold-water after his commitment, I thought there might be a prospect of change, but I did not really feel any affection for him, and I thought maybe if he found religion and would straighten out and live like we wanted to, I thought possibly we could make a go of it. His criticism, faultfinding of me made me realize that I could not longer tolerate the marriage. * *
“On occasions, Mr. Fansler was mean to me when drinking and at 1 time when we were living in Michigan with several persons present, we had an argument when I told him not to holler at our daughter and he said, ‘I will show you,’ and he hit me to the ■ point where I had bruises. They had all been drinking, had been playing around and having beer.”
The trial court in his opinion stated:
“Unfortunately he (defendant) was addicted to the excessive use of intoxicating liquor I am satisfied for many years, and he did drink to excess, greatly to excess. I am inclined to believe that he became boisterous at times and extended himself farther in that field than he should, and certainly farther than he would do at the present time under the present circumstances, and he came to the point where he reached the breaking point as many people do, if certain things happen at the right time and the right combination none of us are equipped to withstand the shock. He reached that point, became mentally ill, it was necessary for him to be committed to an institution for care and treatment, and in 6 months, he made an uneventful recovery and returned home, and since that time the court is satisfied he has not drank a drop. I think he is to be' congratulated, I do not know how he did it, I do not understand it, but I am satisfied he did and I think it is a remarkable thing. His boisterous attitude was somewhat changed and he became a more peaceful and quiet citizen among the people of this community. He has been able to do considerable work and is working at the present time. * * *
“The court can see the position of Mrs. Fansler; that over this long period of time her love and affection for this defendant gradually became less and less until it came to the point where shé could not take it any longer, and on his return from the hospital distressing things came up, which coupled with the loss of love and affection which has grown up over many years simply overwhelmed her to the point where she felt she must seek relief from the court by way of divorce. * * *
“But I am satisfied, that after listening to all of the evidence in this case that plaintiff has máde out a case for a decree of absolute divorce, and I am going to grant relief.”
Defendant’s testimony relating to his return from the hospital is as follows:
“I recall one thing, my wife came over and sat down on the foot stool, laid her hand on my knee and said Welcome home papa, glad you are back’ or something like that ‘we will begin new from here and try to make the best of it,’ something to that effect. I do not say that is word for word the way it was. She referred to the family as ‘we’ and did not say for Sandra’s sake. From the time that I came home, my wife and I lived together as man and wife quite happily until she put in her bill. * * *
“I was trying to be happy there with my wife and family. I was trying to be and thought I was and it takes time, I think, in other words, from the way some of our soldier boys come back and have to be readjusted again, that is more or less the way I look at it, more or less a readjustment period. I have not absolutely drank any alcoholic liquors since returning from the hospital. I have attended church quite regularly. There have been some Sundays I missed. I am trying to live an entirely different life than I previously led. I heard the testimony yesterday or Thursday that I had drank at various times through my married life excessively. * * * At times maybe I did, we all did, times I can recall I think I can say we both (did) together. * * *
“After my return from the hospital and prior to the time my wife left me, we got along fairly well, no heated arguments, no fights — no knockdowns and drag-outs, no serious arguments, except what I have testified to as discussions. I was surprised when she informed me that she was going to get a divorce on February 15th or 16th.”
We must consider defendant’s mental disease in passing judgment on his conduct. Defendant urges that he cannot be held responsible for his actions previous to restoration to soundness of mind oh May 1, 1953.
Dr. Edwin J. Rennell, who examined the defendant on June 9, 1952, 3 days before his commitment to the Kalamazoo State Hospital, testified:
“My diagnosis was manic-depressive psychosis. This type of condition is usually gradual in its onset and it may be a relatively long period of time in coming on, although there is a good deal of variation in individual cases. Sometimes the symptoms are not recognized by those about him for some little time after they have begun until they become developed to a point where they are very noticeable. It is very characteristic of this type of illness to have a number of attacks; I think maybe an attack which he had at the time I described them is a manic type of attack or they may be of the opposite type which we call the depressed type.
“From examination alone one would be unable to' determine when the patient first contracted the psychosis, or to arrive at any conclusion. In order to arrive at any opinion like that one must depend upon the history furnished by someone who was in close contact with the patient. In talking with his wife she indicated that 2 years previous, approximately to June, 1952, he had a period of depression which in my opinion was directly related to his condition at that time, and that some time previous to that he had another series of depression. In regard to this attack in which I saw him she felt that this had begun during the previous — I think that winter. * * *
“Any mental condition in which a person would have a severe psychosis could not very effectively carry on a business. A person could not attempt, which (with) a psychosis as severe as it was when I saw Mr. Pansier, to carry on a normal business. In a general way, it is true that the depression or perhaps the elation which appears back before the examination might have an exhibition at the time of examination but might to the person who observed the person have little significance at the time of its happening. I cannot say that in Mr. Fansler’s case. In other words he was not severely ill enough to want a hospital; he went to a psychiatrist instead.”
We cannot determine from the medical testimony in this case the exact date of the beginning of defendant’s mental disease. It would seem to be a matter of speculation so far as medical science can determine, as the doctor who testified stated, “there is a good deal of variation in individual cases.” We must look elsewhere for information as to defendant’s mental condition previous to his commitment to the Kalamazoo State Hospital. The acts complained of began shortly after the parties’ marriage in 1939. It is apparent from the record that defendant conducted his business of earth-mover contractor successfully, which can be measured by his acquisitions, up until the spring of 1952. It is improbable that defendant would have been able to carry on his business so successfully if he had been suffering from a mental disease. It would seem that if the defendant was capable of carrying on a business, he was able to comprehend the mental cruelty he was imposing on plaintiff. There is no evidence in the record to show that defendant exhibited any signs of a mental disease up until the fall of 1951 when he was treated for a nervous breakdown. Mental irresponsibility is not available as a defense to cruelty if the defendant was capable of comprehending and understanding the wrong he was committing. 9 ECL, Divorce and Separation, p 334, § 113.
CL 1948, §§ 552.7, 552.8 (Stat Ann §§ 25.87, 25.88), provide that a divorce may be granted on the ground of extreme cruelty, but does not define extreme cruelty. In Brookhouse v. Brookhouse, 286 Mich 151, this Court said that grievances, to justify a decree, may be mental or physical, if they are of a sufficiently aggravated nature. We think that there was sufficient evidence to support the findings of the trial court in awarding plaintiff a decree of divorce, in that the mental cruelty inflicted on plaintiff by the defendant’s actions over a period of years constitutes cruelty under Michigan law. Hall v. Hall, 172 Mich 210.
Defendant also urges that plaintiff condoned his conduct in the period prior to his commitment to Kalamazoo State Hospital and became reconciled with him, which would deprive her of any legal grounds for divorce. We are unable to find' any testimony in the record that plaintiff forgave defendant his wrongful treatment, other than plaintiff’s testimony that she “tried to give him reconciliation,” and that:
“When we returned to Coldwater, I continued the marriage and the home in hopes there might be some prospect of a change. I really did not feel any affection for him, but I thought possibly if he had quit drinking and if he had found religion and could straighten out and live like we wanted to, I thought possibly we could make a go of it.”
It is defendant’s testimony that upon his return from Kalamazoo State Hospital, plaintiff said, “Welcome home papa, glad you are back, we will begin new from here and try to make the best of it.” Prom the testimony in this record we are satisfied that plaintiff did try to effect a reconciliation with the defendant upon his return from the hospital, but we' are unable to find anything in the record indicating that plaintiff condoned defendant’s wrongful treatment. In Austin v. Austin, 172 Mich 620, we said:
“Numerous but unsuccessful attempts on the part of a wife to live peaceably with her husband, who treated her with extreme cruelty, did not condone the offense so as to deprive her of her right to a divorce.” (Syllabus.)
In Bohlka v. Bohlka, 318 Mich 468, 473, this Court said:
“It is also contended by appellant that appellee condoned her acts of extreme and repeated cruelty towards him by continuing to live and cohabit with her. Condonation, implying forgiveness for offensive conduct, is conditional on the nonrepetition of such conduct. In the case at bar, the acts of extreme and repeated cruelty, on the basis of which relief was granted by the trial court to appellee, were continuous during the'period of time that the parties lived and cohabited together. The fact that appellee continued to live with appellant in the marital relation, apparently in the hope that the parties might avoid a final separation, was not a bar to. the granting of relief to him. Tackaberry v. Tackaberry, 101 Mich 102; Austin v. Austin, 172 Mich 620.”
The above was again quoted in Durham v. Durham, 331 Mich 668. An examination of the record satisfies us that the wrongful acts of defendant were never condoned by plaintiff.
Question 2: Did the trial court err with regard to the division of property between the parties Í
There is no rigid rule for division of property in divorce actions. The security of a living for the wife is a major consideration. Hallett v. Hallett, 279 Mich 246; Morrish v. Morrish, 338 Mich 261. Defendant complains that the trial court’s division of the property was inequitable in that he did not divide the property equally between the parties. It must be taken into consideration here that the property awarded to defendant ivas income producing, whereas the property awarded to plaintiff was not. "We must also take into consideration the fact that plaintiff was awarded custody of the child of the parties, and therefore has the responsibility of the child’s care. In the recent case of Whittaker v. Whittaker, 343 Mich 267, 272, we quoted with approval from Cartwright v. Cartwright, 341 Mich 68, 76, as follows :
“ ‘We have held that under the law of this State a division of property need not be equal but rather should be fair and equitable under all of the circumstances involved.’ ”
The Supreme Court is disinclined to interfere with the determination of property rights by the lower court, the lower court having the advantage of closer contact Avith the parties. Manigold v. Manigold, 304 Mich 310. We.are unable to find that there was an abuse of discretion on the part of the trial court in the division of the property between the parties.
The record shows that reconciliation between the parties is almost impossible. The hostility exhibited by the parties has indicated an' unhappy and unhealthy domestic situation.
The decree of divorce is affirmed, with costs to plaintiff.
Dethmers, C. J., and Smith, Reid, Boyles, Kelly, Carr, and Black, JJ., concurred. | [
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Smith, J.
It is asserted in this case that the zoning ordinance (No 130) of the city of Huntington Woods is, as to plaintiffs’ property, unreasonable, discriminatory and unconstitutional. The trial judge so held. The defendants have taken a general appeal.
The properties here involved (with one exception) are lots fronting on Woodward avenue in the Huntington Woods subdivision, city of Huntington Woods, Michigan. The remaining lot, lot 87, is'located on the south side of Eleven Mile road west of Woodward avenue. The Woodward lots are zoned for single-family use. Lot 87 is zoned for 2-family, residential use. At the point under consideration, Woodward avenue is the dividing line between the city of Royal Oak on the east, and defendant city of Huntington Woods on the west. On the Royal Oak side the property is zoned for single-family residential use and a church, parish house, and 2 residences have been erected thereon. On the Huntington Woods side, the lots involved are all vacant save 1, on which plaintiff Haupert has built a resi-' dence. At the rear of Woodward lots, and facing another avenue, are a large number of substantial homes. The area involved is approximately 3 blocks in length, north of which is business frontage and south of which are multiple dwellings.
It is the contention of the plaintiffs that the Woodward avenue property is entirely unsuitable for single-family residential use. Since the recording of the plat, in 1917, only 1 single residence has been built upon the lots in question. Its owner, Maurice A. Haupert, is one of the plaintiffs in this action. He testified that the traffic noises are continuous, “noise all the time,” and “a lot of company off Woodward avenue. Almost every night somebody stops in with-trouble — all kinds of people — all hours of the night.” Another property owner testified that he had decided not to build Ms home at this location because, in part, of the noise. “There is just a drumming, constant hum of traffic — there is no end to it.” In addition, 2 real-estate brokers testified as to the unsuitability of the Woodward lots for private dwellings. One stated that in Ms opinion the lots were not usable for single-residence purposes and that in 30 minutes at this location he had counted 1,818 vehicles traveling north. The other, Bruce Annett, then president-elect of the Michigan Real Estate Association, testified, in part, as follows :
“In my opinion, I don’t believe the vacant lots, referred to here on Woodward avenue would be salable for single-residence purposes. Of course, there is always the possibility of somebody buying something, but to all intents and purposes I would say no. It would be very difficult to sell.
“In my opinion, if the requirement that there be no use made of the property but single-residence purposes is continued, the result would be that it will continue in its present state of being undeveloped, grown up to weeds and actually an eyesore to the surrounding properties.”
The defendants offered no testimony (a stipulation of facts having been agreed upon) and the trial court held for plaintiffs, as before stated. Upon this appeal the defendants urge that plaintiffs’ proofs have not overcome the presumption of validity attaching to the ordinance and that the court took improper judicial notice.
There is no doubt, of course, as defendants urge, that a zoning ordinance is presumed constitutional and that plaintiffs must make affirmative showing that the regulation has no substantial relation to public health, morals, safety or general welfare. Hammond v. Bloomfield Hills Building Inspector, 331 Mich 551. On the other hand, an ordinance that prevents the property owner from making any bene ficial use of his property is both unreasonable and confiscatory. The paramount public welfare cannot be promoted at the expense of the property owner by regulations which are capricious or arbitrary in nature. The use imposed by the ordinance must be feasible use. As we said in Oschin v. Township of Redford, 315 Mich 359, 363:
“It is practically impossible to use the lands in question for residential purposes. We find that the zoning ordinances as applied to the property in question are unreasonable and confiscatory, and therefore illegal.”
The situation presented to us in Long v. City of Highland Park, 329 Mich 146, 151, 152, is also in point, concerning which we held:
“The record is plain that there is no market for said property in Highland Park fronting on Woodward avenue still zoned as ‘BP for use for residential purposes.”
Upon the record made we agree with the trial court that the Woodward avenue lots are not suitable for single-family residence, and that the ordinance, as applied to plaintiffs’ property, is unreasonable, void, and unconstitutional.
There is no merit in defendants’ allegation of error respecting the judicial notice taken by the trial court concerning the heavy volume of traffic from Detroit to Pontiac on Woodward avenue. Courts are not required to close their eyes to facts obvious to the rest of mankind. We note, moreover, the testimony of witness Smith as to the traffic count made by him, and the stipulation that Woodward avenue is a “main thoroughfare running northerly” from the Detroit river to Pontiac. The case of Cleveland v. Newsom, 45 Mich 62, is not germane.
As to lot 87, on Eleven Mile road, the ordinance is equally unreasonable. This lot, near 2 gasoline sta-. tions, is 20 feet in width and is zoned for 2-family dwellings. The setback (from side lines) required is 8 feet per side, leaving a theoretical 4-foot width for the dwelling in question. Such a restriction is unreasonable on its face.
Decree affirmed. Costs to appellees.
Dethmers, C. J., and Sharpe, Reid, Boyles, Kelly, Carr, and Black, JJ., concurred. | [
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Boyles, J.
The controlling question in this case is whether there was a delivery of a certain deed.
Plaintiff; Myrna E. Reed filed the instant bill of complaint in the circuit court for Branch county in chancery asking for a decree that she is entitled to 1/2 of the use, income, rents and possession of a certain farm property in Colclwater township in said county during her lifetime; that she be decreed to have a life estate in said property concurrently with Ethel M. Mack, the defendant; asking for an injunction to prevent her mother, Ethel M. Baker (now Mack), the defendant, from pursuing any eviction proceedings; and asking for an accounting of the rents and use of the farm which her mother has had since February 17, 1945, including the rent which had been paid to her mother, the defendant, for the second-story apartment in the house. The court, on filing of the bill of complaint, issued a temporary injunction restraining further the continuing of the proceedings started by the defendant to oust the plaintiff from-possession of the second-story apartment pending final hearing.
The defendant Ethel M. (Baker) Mack filed an answer admitting the execution and recording of the deed in question, but denying its delivery. She denied that the plaintiff had any interest whatever in said property. She also filed a cross bill setting up that she, Ethel M. (Baker) Mack, together with her husband, Arthur Baker, had been owners of said farm as tenants by the entirety, that up to his death in April, 1945, there had been no delivery of any deed from him, or from her, to the plaintiff Myrna E. Reed, or to anyone else; that when her said husband, Arthur Baker, died in April, 1945, she, his surviving widow, became sole owner of said farm under their title as tenants by entirety. She further alleged that when she put the deed in question, executed February 17, 1945, on record on May 25, 1945, it was with the belief that she was to have the farm for her disposal during her lifetime. She set up that her granddaughter Ethel H. Reed had deeded her interest in said farm to her father Walter E. Reed, the husband of plaintiff Myrna E. Reed, and asked that he be joined as a cross defendant, and that said deed be canceled and set aside. She also asked that the cross defendant Myrna E. Beed be enjoined from claiming any interest in the premises or to the occupancy of the upstairs apartment.
The facts and circumstances, as adduced from the pleadings and from the testimony before the court at the hearing on said matter, are substantially as follows:
On February 17, 1945, Arthur Baker and Ethel M. Baker, husband and wife and owners of the real estate hereinafter referred to as tenants by the entirety, executed a warranty deed, as parties of the first part, to Ethel H. Beed, Ethel M. Baker and Myrna E. Beed, as second parties, for said real estate. Following the description, said instrument contained the following statement:
“The interest of each of the parties hereto, is as follows: . ,
“Ethel H. Beed holds the fee in said land and Ethel M. Baker, and Myrna E. Beed each have a life estate and to the survivor of them, said life estates to run concurrently and then to the survivor of them,, said Ethel PI. Beed takes subject to said life estates.”
Ethel M. Baker, grantor, is the same Baker above' named as one of the second parties. Arthur Baker, grantor, died shortly after said deed was executed, and subsequently Ethel M. Baker has remarried. She is now Ethel M. Mack, the defendant, cross plaintiff and appellant herein. Myrna E. ■ Beed is the daughter of said grantors Arthur Baker and Ethel M. Baker, and Ethel H. Beed is their granddaughter, the daughter of Myrna E. Beed. Obviously, said instrument, according to the above-quoted statement in it following the description,, purports to convey a life estate from the grantors-owners Arthur Baker and Ethel M. Baker to Ethel M. Baker (now Ethel M. Mack), one of the grantors, together with a concurrent life estate to Myrna E. Reed, daughter of said grantors, and the fee title to Ethel H. Reed, the grantors’ granddaughter, subject to the life estates.
Said instrument, following its execution by the grantors in the office of an attorney, was turned over by Arthur Baker to his wife Ethel M. Baker (now Mack), with instructions to record it at a later date. Arthur Baker died about 2 months later (April 12, 1945), and about a month later (May 25,1945) Ethel M. Baker (Mack) took the deed to the office of the register of deeds for Branch county arid had it recorded. ■ She testified that this was done in accordance with her agreement with her husband, to keep her word with him, and that she was acting on behalf of all of the parties to the instrument, including her granddaughter Ethel H. Reed. Thereafter the deed, after being recorded, was returned to her by the register of deeds and kept by her.
Ethel M. Baker continued to live on the farm in question after her husband’s death, and after her marriage to Mack, up to the present time. The house had 2 apartments. Beginning in May, 1951, Ethel M. Baker’s daughter Myrna E. Reed, having a life estate in the farm under the deed together with her mother, lived in the upstairs apartment with her husband Walter E. Reed. They paid $40 per month to her mother until July 28, 1953. A family dispute arose when Walter suggested that he would like to-rent the farm, and apparently because Walter had obtained from his daughter Ethel H. Reed a deed of her interest in the property; and Myrna and her husband Walter were accused' of trying to take the farm. The mother, Ethel M. (Baker) Mack, caused a notice to be served on Myrna, and started proceed ings "before a circuit court commissioner to oust Myrna and her husband from the apartment. This had occurred after Ethel H. Reed and her husband Edward had sought and obtained from Ethel M. (Baker) Mack and Myrna E. Reed a deed to convey title to them of 3/4 of an acre of the farm on which to build a house, which, however, recited that:
“First parties execute this deed for the purpose ■of conveying their life estates in said premises.”
As soon as Ethel M. Mack started the proceedings before a circuit court commissioner to oust Myrna E. Reed from possession of the second-story apartment in the home on the farm, Myrna E. Reed filed the instant bill of complaint in the circuit court for Branch county in chancery, hereinbefore referred to, seeking to establish her interest of a life estate in said farm concurrent with her- mother, Ethel M. (Baker) Mack, claiming that ever since the death ■of her father, Arthur Baker, her mother, Ethel M. (Baker) Mack, had been living on said farm, had received the entire income therefrom, and should account therefor.
The trial court, after hearing the matter, including a motion to dismiss the bill of complaint, and taking testimony, stated his conclusions. He held that the plaintiff had shown that there was a delivery of the deed in question; that the plaintiff was not estopped from claiming delivery of the deed or an interest in the use of the property by the fact that she had paid rent to the defendant Ethel M. (Baker) Mack for the upstairs apartment under the mistaken belief that her said mother had the sole life use of the property, and without knowing that ■she (Myrna, the plaintiff) also had a concurrent life use, under the deed. The court said:
“I am satisfied, that by a fair preponderance of the evidence that when this deed was made out it was the intent of the parties that exactly what the deed said was to he carried ont. In other words, as far as this court is concerned the deed is not ambiguous, it is complete within itself, it is self-explanatory, and there is no question about it. * * *
“And in this case I have a very deep conviction that this deed was the intent of the parties, and the court must interpret it as such. * * *
“And therefore the court finds the deed must be considered as a valid deed, and that its clear terms must be upheld, and that it was there and then found to be valid.”
The court then proceeded to discuss the proofs as; to an accounting and concluded that the plaintiff was, entitled to a refund amounting to $1,020 on the rent paid. No question is raised here as to the accounting. A decree was entered in consonance with the court’s conclusions, from which the defendant appeals.
We are in agreement with the trial court. The defendant-appellant, a grantor in the deed, caused, the recording of the deed, the delivery of which she attacks. The recording of a warranty deed may, under some circumstances, be effectual to show delivery. Compton v. White, 86 Mich 33. A delivery to one of several joint grantees, in absence of proof to the contrary, is delivery to all. Mayhew v. Wilhelm, 249 Mich 640. While placing a deed on record does not in itself necessarily establish delivery (Camp v. Guaranty Trust Co., 262 Mich 223), the recording of a deed raises a presumption of delivery,, and the whole object of delivery is to indicate an intent by the grantor to give effect to the instrument. Gibson v. Dymon, 281 Mich 137. The record here clearly shows that the defendant-appellant, by her cross bill, brings in the question both as to fee title and the life estates. In fact, the deed was undoubtedly directly against the defendant’s own personal in ierest, inasmuch as under the deed she would have only a life estate, whereas, without it she would become the owner of the entire fee title as the survivor of her husband Arthur in an estate by the entirety. We are satisfied that the record before us affirmatively establishes a delivery of the deed.
Nor is the plaintiff estppped by the payment of rent to the defendant-appellant for use of the upstairs apartment. Plainly, it was paid without a knowledge that the plaintiff also has a life estate in the farm, and under a mistake of fact. Campbell v. Hansuld, 227 Mich 362.
Other questions raised by appellant for reversal have been considered. We find that the court did not commit reversible error in admitting testimony, ■or excluding what should not be considered as admissible or material. Under somewhat confusing-facts and circumstances, the court reached the right result.
Affirmed. Costs to appellee.
Carr, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred.
Walter Beed was added as a cross defendant but prior to trial lie conveyed back to Ethel H. Beed any interest he may have received from her by or under said deed and subsequently the ease was dismissed as to him.
See, also, Flood v. Flood, 295 Mich 366; Blodgett v. Snobble, 295 Mich 374. | [
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Carr, J.
In 1951 plaintiff purchased real estate in defendant city, it being his purpose at the time to build a service station thereon for the sale of a certain brand of gasoline. It was apparently the intention that such station would be operated by a company of which plaintiff was the president. Because of the situation existing at the time with reference to the property in question, title was taken in the name of plaintiff rather than by the corporation that he represented. Said property is located on the northwest corner of the intersection of River avenue and 13th street in Holland. It is conceded that the avenue is the principal north and south street in the city, being also referred to in the record as US-31. However, a by-pass for the trunk line has recently been constructed around the city and undoubtedly much traffic formerly using River avenue will in the future follow the by-pass.
Under the zoning ordinance of the city, enacted in 1926, said property was zoned as B residential. Plaintiff sought to have it rezoned to class C commercial, but his application was denied. Thereupon he brought suit to restrain the enforcement of the ■ordinance as applied to his property, claiming that such application was unreasonable and that as to the land in question the ordinance was invalid. It is not questioned that said ordinance was valid when enacted but the claim is made that changing circumstances have altered the situation in this respect. Plaintiff paid $22,500 for the property and the proofs introduced on the trial of the case indicate that its value for commercial purposes exceeds that sum. If restricted to the uses contemplated by the ordinance it is of lesser value. It is plaintiff’s position, in substance, that he is entitled to use his property for the purpose for which he acquired it. On behalf of defendant city it is contended that relieving the property of plaintiff from the restrictions imposed by the ordinance would result in material interference with municipal zoning plans. The question ■at issue is whether, under all the circumstances of the case as disclosed by the proofs, the ordinance is unreasonable and invalid as applied to plaintiff’s land. The trial judge determined the issue in favor of the defendant and entered a decree dismissing the bill of complaint. Plaintiff has appealed.
The legal principle is firmly established that zoning ordinances, when reasonable in their provisions, are a valid exercise of the police power. Village of Euclid v. Ambler Realty Company, 272 US 365 (47 S Ct 114, 71L ed 303, 54 ALE 1016); Austin v. Older, 283 Mich 667. The reasonableness of such an ordinance is recognized as the test of its legality. Hitchman v. Township of Oakland, 329 Mich 331. In the application of the test indicated it necessarily follows that each case of this character must be determined on the basis of its own facts and circumstances. Senefsky v. City of Huntington Woods, 307 Mich 728 (149 ALR 1433). It must also be borne in mind that the presumption of validity attends zoning regulations, and that the burden of proof is on one challenging such an ordinance to establish his claim. Portage Township v. Full Salvation Union, 318 Mich 693; Northwood Properties Company v. Royal Oak City Inspector, 325 Mich 419.
On behalf of plaintiff emphasis is placed on the fact that in 1947 property in the block between 13th and 14th streets was rezoned from B residential to C commercial, and a gasoline service station was constructed thereon. On behalf of defendant it is suggested that such rezoning was improper and should not be extended to other property along Eiver avenue in residential sections. The trial court found as a matter of fact that the change in the zoning of property in the block south of 13th street did not alter the character of the neighborhood. In commenting on plaintiff’s contentions the circuit judge in his opinion said:
“If such arguments are to prevail in testing the reasonableness of the application of a zoning ordi nance to a particular parcel of property then many hundreds of parcels would qualify for rezoning and the whole program of municipal planning would fail. "While these are factors that the courts have taken into account in previous cases, and while they must he considered in all cases, nevertheless where they clash with the overall plan of the community the latter plan ought to prevail unless the evidence establishes clearly that the unreasonableness exists.”
It *is not disputed that plaintiff bought his land in the hope and expectation that he would be able to have it rezoned for commercial use. That he paid more for it than it was worth for residential purposes is apparent from the testimony in the case. However, it was in a residential section of the city ■and no claim may reasonably be made that it is not suitable at the present time for residential purposes. There is testimony also that its value for a multiple residence is substantial, much in excess of single-residential value, and approaches the sum paid by plaintiff. "We are not, in other words, dealing with a situation in which the property involved is unsuitable for residential purposes and has little or no value if so restricted. For this reason prior decisions of this Court presenting such a situation, some of which counsel for plaintiff have cited in their brief, are not in point. Among such eases is the recent decision in Warner v. City of Muskegon, ante, 408, 413 (decided December 28, 1955), in which it was pointed out that the property involved “would be unsuitable and almost worthless for residential purposes.” A comparable situation existed in Janesick v. City of Detroit, 337 Mich 549, cited and relied on by plaintiff. It may be noted also that the case at bar does not involve a claimed depreciation in the value of property as a result of the enactment of a zoning ordinance imposing restrictions to which fhé property was not previously subject. On" the contrary, plaintiff’s position here is that his land should be freed of the zoning restrictions imposed by the ordinance of 1926 to the end that he may have the benefit of the increased valuation that, it is claimed, would result.
Whether the best interests of defendant city and its residents might be advanced by rezoning property along River avenue in such manner as to permit its use for business purposes is not the specific issue involved in the instant controversy. Rather, the question presented here relates, as before stated, to the validity of the present zoning ordinance of the city as applied to plaintiff’s property. In determining the issue we take into consideration the factual situation disclosed by the record before us. Owners of residential property in the vicinity of plaintiff’s land are entitled to consideration. Apparently they are using their respective properties in accordance with the provisions of the ordinance. Granting to plaintiff the relief that he is seeking here might result to the prejudice of such others.
In City of Howell v. Kaal, 341 Mich 585, defendants undertook to operate a trailer camp in disregard of the provisions of a municipal ordinance enacted several years prior to defendants’ purchase of the land involved. Plaintiff brought suit to enjoin the defendants from operating in disregard of the restrictions of the ordinance, and a decree in its favor was entered in the trial court. Defendants appealed, asserting that as to their property the ordinance was unreasonable, confiscatory, and invalid. There was testimony in the case indicating that the land was adapted for use for residential purposes but that its value for a trailer camp would be appreciably higher. In rejecting the arguments advanced by defendants, it was said (pp 589, 590):
“The record establishes that the property was used for a single-residence purpose when the ordinance was adopted and for 5 years thereafter; that in the opinion of a defense witness it has a value for that purpose of $10,000; that its use as a trailer camp began 5 years after adoption of the ordinance and that it was not until 4 years after that that defendants purchased it with full knowledge of the provisions of the ordinance. Defendants cite such cases as Janesick v. City of Detroit, 337 Mich 549; and Ervin Acceptance Co. v. City of Ann Arbor, 322 Mich 404, for the proposition that in determining the reasonableness of the ordinance the court will consider the depreciation in value which it occasions, especially when it destroys most of the value of the property involved. Those cases also state that depreciation in value is not a definite yardstick by which to measure the reasonableness and are in accord with our holding in Moreland v. Armstrong, 297 Mich 32, 36, that:
“ Mere depreciation in value by itself is not enough. The test is whether the zoning classification is unreasonable.’
“Where the property in question is suited to the R-A purpose assigned to it by the ordinance, it is surrounded for a considerable distance by property so used, and it was being so used at the time the ordinance was adopted and had a substantial value for that purpose, the fact that at a later date it was put to an illegal use and, as such, was bought by defendants, with knowledge of the ordinance, at a price higher than the value of the property when used for lawful purpose, does not render the ordinance confiscatory. To hold that it does would render the residential classification under every zoning ordinance vulnerable to attack as unreasonable and confiscatory the moment the owner of property so zoned found opportunity to sell it for industrial purposes at a price beyond its value for residential purposes. That is not the law. Defendants took a calculated risk, hoping that the ordinance would not be enforced or that it would he amended. The failure of their gamble cannot be urged against the validity of the ordinance.”
The foregoing statement is, by analogy at least, applicable to the facts in the case at bar. We are in accord with the findings of the trial judge, and the decree of the circuit court is affirmed. Defendant may have costs.
Dethmers, C. J., and Sharpe, Smith, Reed, Boyles, Kelly, and Black, JJ., concurred. | [
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Dethmers, J.
Defendants appeal from an order for writ of mandamus directing them to issue a building permit to plaintiff. Plaintiff’s property is-part of a small, triangular parcel which bad been zoned residence D permitting multiple dwellings. On February 8, 1954, plaintiff obtained approval of tbe city plan commission for erection of a duplex and a 4-family residence on tbe property, followed by an OK from tbe zoning board of appeals for duplexes on tbe property. On June 8, 1954, tbe zoning ordinance was amended, changing tbe classification of tbe portion of the triangular parcel containing plaintiff’s premises from residence D to-residence A, limited to use for single-family residences. On June 23, 1954, plaintiff applied for a building permit for tbe erection on tbe premises of a 3-family and a 4-family dwelling. Tbe permit was denied on tbe ground that tbe premises were now zoned residence A.
Tbe trial court found as a fact that tbe small, triangular parcel, including plaintiff’s premises, now zoned residence A, is surrounded on 3 sides by zone D property. Only across tbe street to tbe south is there residence A land, recently upgraded by ordinance amendment from residence B. Immediately .across the first street to the north, about 200 feet from plaintiff’s premises, is a business B zone, containing a gasoline station, cleaning establishment, supermarket, and other business places, while on the south side of that street, nearer to plaintiff’s premises, is a site approved for a doctor’s clinic. To the east of plaintiff’s property is a players’ guild building and the property across the street to the west is devoted exclusively to a multiple-dwelling development. Under such factual showing the presumption •of validity is rebutted. The trial court held that restriction of the small parcel in question to use for .single-family residences, when it is so closely surrounded by properties devoted to or zoned for other uses, as above indicated, is unreasonable and arbitrary and that it bears no substantial relationship to public health, safety, morals or the general welfare. In this we think the court correct. City of Pleasant Ridge v. Cooper, 267 Mich 603; Pringle v. Shevnock, 309 Mich 179.
Defendants urge that, even though the amendment, insofar as it places plaintiff’s property in a residence A zone, be invalid, the writ ought not to issue because plaintiff’s application was for a permit to build one ■3-family and one 4-family dwelling on premises containing an area less than the residence D provisions of the ordinance required for such units prior to the amendment as well as after. Plaintiff counters that the amendment expressly repealed the residence D provisions insofar as they applied to plaintiff’s property and that they cannot be revived and again be made applicable thereto by a holding that the amendment is invalid. We think that it was not the intent, in adopting the amendment, that plaintiff’s premises should be left free from all zoning provisions in the event the residence A classification of the amendment were invalid as applied thereto. Accordingly, under our previous holdings, the repeal falls with, the rest of the amendment, insofar as plaintiff’s property is concerned, and the residence D provisions theretofore in effect apply. Campau v. City of Detroit, 14 Mich 276; John Spry Lumber Co. v. Sault Savings Bank Loan & Trust Co., 77 Mich 199 (6 LRA 204, 18 Am St Rep 396); People v. De Blaay, 137 Mich 402 (4 Ann Cas 919). Plaintiff also stresses testimony of 1 of defendants that joining the 2 residences for which permits were sought would result in compliance with the area requirements and plaintiff indicates in its brief the intention of so doing. It was evidently with such view of the law and facts in mind that the court caused its order for the writ and the writ itself to provide for issuance of a permit to erect a building or buildings in accordance with the ordinances of defendant city.
In view of the fact that the permit denial was not based on failure to comply with area requirements-but only on the residence A classification in the amendment, and that joining the 2 dwellings will result in compliance with applicable residence D area requirements, and, finally, that the order appealed1 from contemplates and provides for such compli-; anee, it is affirmed, with costs to plaintiff.
Cabe, C. J., and Butzel, Smith, Sharpe, Boyles,j Reid, and Kelly, JJ., concurred. | [
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Butzel, J.
(for reversal). The parties to this action were residents of the city of Grandville, Kent county, Michigan. Plaintiff’s decedent, Peter Rinkevich, was its chief of police. We shall refer to decedent as plaintiff, to defendant Russell Coeling as defendant, and the latter’s employer, Empire Lumber Company, a Michigan corporation, as codefendant. The company’s principal office was located in Grand-ville and defendant solicited orders for it in neighboring cities and villages. Defendant was the sole owner •of a 2-door Lincoln automobile which he used when -on business for the codefendant who reimbursed him for gas and oil expenses. He was not an officer of the company. On April 18, 1951, defendant invited -decedent to go with him on what the record indicates was a combination business and fishing trip. They first drove to Big Rapids where defendant made •some business calls. They then bought some fishing-bait and proceeded to the Muskegon river near Rogers dam. After remaining there for from 20 to 30 minutes they found it raining too hard to fish and therefore started driving southward toward Rockford, Michigan, where defendant intended to call ■on the Rockford Lumber Company on business of the Empire Lumber Company. It was their further intent to proceed from Rockford to the Rogue river 'in order to continue their fishing activities. Rogue river according to the map is at or very near Rockford.
En route to Rockford they drove along highway US-131, a rather heavily-traveled black-top road. Defendant admitted that it was raining steadily and that the road was slippery and that he knew that it ■was, and that he slowed down from 50 to 55 miles an hour to possibly 45. He testified that he was an •experienced driver and that he had averaged some 50,000 miles of driving per year for the past 7 years. He was also familiar with this particular road, 'having traversed it about once a month. Defendant .testified that just north of Cedar Springs as he drove up an incline toward the crest of a slight hill he noticed a car approaching from the opposite direction trespassing slightly over the line marking the center of the highway; that in order to avoid a collision he turned his car in the direction of the right-hand shoulder which was muddy; that the front and rear right wheels went on to the shoulder and in his effort to get back on to the pavement one of the wheels was momentarily held back by the edge of the pavement and as a result the car turned or skidded toward the opposite side of the road in front of an oncoming Chevrolet car proceeding in a northerly direction. The cars collided and as a result both were badly wrecked and decedent died from the injuries incurred. Defendant was also injured and received workmen’s compensation. The wreckage of the cars, as shown by the exhibits, indicates that "they met with great force.
A witness for plaintiff testified that while he (the witness) was driving south about a mile and seven-tenths north of the point of the accident a Lincoln ■car, which he tentatively identified as defendant’s, passed him going at the rate of speed of about 70 miles per hour. Another witness for plaintiff, who, while driving north had passed defendant’s car just preceding the accident, testified that as defendant approached the point of collision he was “coming at a high rate of speed, very high rate of speed * * * I would have judged between 80 and 90 miles an hour.” A third witness testified that somewhere between 15 and 20 miles north of the point of collision, as the witness was driving his truck north on the same highway, he saw a Lincoln, to the best of his judgment, defendant’s car, go off the road onto the shoulder momentarily and then came back onto the highway, coming within 25 feet or so of hitting .the back end of the witness’ truck. He was of the opinion that the Lincoln at that time was traveling at 50 miles per hour.
At the end of plaintiff’s case the defendant and codefendant moved for directed verdicts on the grounds that as a matter of law defendant was not guilty of gross negligence or wilful and wanton misconduct toward his guest, tlie decedent, and that under the principles of respondeat superior codefendant was not liable. The court directed the jury to find no cause of action and a judgment granting-the motions was entered. Plaintiff has appealed.
Before considering the facts and the law applicable to this case we must dispose of certain evidentiary objections. Defendants object to the testimony regarding the incident some 15 to 20 miles north of the point where the accident occurred. In view of its similarity to the events just preceding the collision, we do not think its admission an abuse of the judge’s discretion in such matters, though its probative value is not particularly high. As regards the witness who testified concerning defendant’s speed a mile and seven-tenths from the scene of the collision, we do not think its admission error in view of the contradictory testimony as to defendant’s speed at about that time or a little later. See Shoemaker-v. Trompen, 326 Mich 120, 123, 124. Because of the limited time the witness who testified that defendant was going 80 to 90 miles per hour had to form this opinion, defendants argue that such testimony is. inadmissible. While the peculiar circumstances further made judging difficult, the admission of this evidence was not an abuse of the discretion which is lodged in the judge in such matters. We cannot say that as a matter of law the witness had no real opportunity to make an observation of the circumstances and existing conditions. Whether he could do it correctly or not was for the jury to decide. Defendant was cross-examined by plaintiff under the statute. Among other things he testified to, he stated that he slowed down on account of the slippery condition of the highway and that he was driving at a moderate rate of speed. Defendants contend that plaintiff is bound by this testimony as to defendant’s intention and state of mind. To be sure his testimony must be considered as a whole. See Schaupeter v. Schaupeter, 317 Mich 84. However, in a case such as this defendant’s state of mind and intention is inextricably related to the speed at which he was traveling. That speed is a fact in dispute, and the testimony thereto being contradictory plaintiff is not bound by defendant’s testimony. Swank v. Croff, 245 Mich 657; Schaupeter v. Schaupeter, supra; In re Estate of Taylor, 271 Mich 404.
The principal question is whether under the evidence, when considered in a light most favorable to plaintiff, a jury question was presented. The elements of “gross negligence or wilful and wanton misconduct” upon which defendant’s liability is predicated under the guest act, CLS 1952, § 257.401 (Stat Ann 1952 Rev § 9.2101), are set forth in Titus v. Lonergan, 322 Mich 112, 119:
“(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.”
We have said that under the circumstances of the case in order to establish gross negligence or wilful and wanton misconduct “it is necessary for plaintiff to show that defendant continued to drive in reckless disregard of known and dangerous conditions after knowledge of the same.” Stott v. Shalogian, 326 Mich 435, 439. While excessive speed of itself is insufficient to impose liability under the guest act, it may be considered in connection with other circumstances in determining whether the operator of the automobile was guilty of gross negligence or wilful and wanton misconduct. Titus v. Lonergan, supra.
We have reviewed a great many decisions involving the element of excessive speed when combined with other factors such as conditions of weather and highway. They are so numerous and in some instances so irreconcilable with other decisions that it would serve no purpose to here set forth in detail each one for the purpose of distinguishing or following it. It suffices that we note a few of them.. See Piscopo v. Fruciano, 307 Mich 433; Goppin v. Lippy, 299 Mich 586; Hodge v. Beaman, 294 Mich 442; Thompson v. Ross, 292 Mich 450; Eskovitz v. Berger, 276 Mich 536; Keilitz v. Elley, 276 Mich 701; Rowe v. Vander Kolk, 278 Mich 564; Pawlicki v. Faulkerson, 285 Mich 141; Balcer v. Pere Marquette R. Co., 266 Mich 538; In re Mueller’s Estate, 280 Mich 203. Though with the exception of 1 or 2' these cases do not involve speeds in excess of 80 miles per hour, some of them point to a result in defendants’ favor. We must, however, take account of more recent decisions of our Court. In so doing" we find that in Cramer v. Dye, 328 Mich 370; Kocks v. Collins, 330 Mich 423; Price v. Western, 330 Mich 680; and Cain v. Enyon, 331 Mich 81, we held in effect that excessive speed plus a persistent refusal to heed warnings from passengers, inter alia, raises-a jury question as to the existence of gross negligence or wilful and wanton misconduct. This was somewhat of a reversal of our previous position. See Sherman v. David, 293 Mich 489. Here there Is no proof of any warning given to defendant. The lips of the gnest passenger are sealed by death. However, a refusal to heed warnings is not necessary to recovery, and the latest cases are cited merely as an indication that this Court might in some cases be re-examining its position in light of modern conditions. While in Horton v. Fleser, 340 Mich 68, 73, we stated that:
“We did not in the Price Case expressly or impliedly overrule previous decisions or promulgate any change in requirement that wilful and wanton misconduct must be found,”
we went on to say that:
“Our observation was made only for the purpose -of restricting the discretion of the trial judge in such cases for the purpose of preventing him from usurping the jury’s proper function as a trier of the facts.”
We are not here promulgating any change in the requirement that wilful and wanton misconduct must be found. However, we may be enlarging that area in which the question of the existence of gross negligence or wilful and wanton misconduct becomes a matter for the jury. To that extent and to the extent that this decision may not be in complete accord with previous analogous decisions, we decline to follow them. Each case is sui generis in its factual circumstances. In view of the facts in this case we feel the issue was properly one for the jury to determine.
In directing the jury to bring in a verdict of no cause of action the court charged, in regard to the liability of codefendant:
“Russell Coeling was an employee of the Empire Lumber Company. The Empire Lumber Company hired him as a salesman. The Empire Lumber Company didn’t authorize him to carry guests with him. The Empire Lumber Company didn’t know he had taken a guest on this occasion. The Empire Lumber Company cannot possibly be responsible in this case. Rinkevich wasn’t working for them. He wasn’t helping their employee, Coeling, in the business of the company. He was simply an invited guest. There can be no liability.”
Codefendant further argues on appeal that in any event the doctrine of respondeat superior is not applicable to wilful and wanton misconduct by an employee.
From the record before us it cannot be said that as a matter of law Coeling was not operating the automobile in the course of his employment. Apparently he and decedent were on a combined business and fishing trip and at the time of the accident they were going to Rockford to visit a customer and, thence, to the nearby Rogue river to fish. However, this does not necessarily fix liability upon codefendant, for the scope of employment must be considered. It does not appear that decedent was there for any purpose other than for the fishing. It was a fishing-trip for him as far as the present record shows.. The record shows that Coeling was using his own-car, as he customarily did, though he was reimbursed for gas and oil, that he was not authorized to take guests, that he had not done so before, and that co-defendant had no knowledge of decedent’s presence. While we have indicated in a number of cases that disobedience to instructions or orders of the employer does not necessarily preclude liability, Brinkman v. Zuckerman, 192 Mich 624, 627; Nord v. West Michigan Flooring Co., 238 Mich 669, 674; Loux v. Harris, 226 Mich 315, 319; cf., Breger v. Feigenson Brothers Co., 264 Mich 37, 40, 41 (where, however, elements of waiver or acquiescence by the employer-were present), we have held in at least 2 cases involving injuries to guest passengers that viola- lion of an employer’s instructions or the lack of authorization regarding such guests absolved the employer from liability. Chajnacki v. Dougherty, 254 Mich 296; Schulwitz v. Delta Lumber Co., 126 Mich 559. In Metropolitan Life Ins. Co. v. Gosney (CCA), 101 F2d 167, 171, a case- involving a suit against a master for injuries sustained by a guest of a servant while the latter was operating his own automobile in the business of the master, the Court adhered to and set forth the “general rule that an employee using an automobile in his employer’s business has no implied or apparent authority to invite ■others to ride with him, and that, if a passenger who accepts the unauthorized invitation of the employee is injured, the employer is not liable, for the reason that the passenger is not'a guest of his but merely a guest of his employee.” (Citing a number of cases including Chajnacki v. Dougherty, supra.)
See, also, 14 ALR 145; 62 ALR 1167; 74 ALR 163; 57 CJS, Master and Servant, §570d(3), p 308; 5 Am Jur, Automobiles, § 394, p 729. However, apparently there is an exception to this rule where the employee is guilty of wilful and wanton misconduct. See Liggett & Myers Tobacco Co. v. De Parcq (CCA), 66 F2d 678, 685, and authorities above cited. Presumably, the Court was referring to this exception in Chajnacki v. Dougherty, supra, at 298, when it said:
“In the instant case it is not claimed that the driver was guilty of wanton or wilful misconduct.”.
The supposed exception to the rule is not without its dissents. See Greeson v. Bailey, 167 Ga 638 (146 SE 490). However, we will not here decide the present status of Michigan law as to the rule or its apparent exception in the case of wilful and wanton misconduct on the part of the employee.
The case should be remanded for a determination-of whether the employee was in fact guilty of wilful and wanton misconduct. If he was not, the question of law here raised need not be decided. If he was, the question of law may then become pertinent, but in view of the circmumstanees of this case' we do not determine it at this time. The directed verdict came at the close of plaintiff’s proofs. We' feel the record incomplete in its treatment of the' nature and extent of the trip taken by decedent and defendant. It is ambiguous as to whether the fishing was incidental to the business or vice versa. Then too, the record is ambiguous as to whether' defendant was not authorized to take guests in his-own car (in the sense that nothing about guests was-said by codefendant) or whether eodefendant affirmatively prohibited him from doing so. In view of these circumstances we decline to pass upon codefendant’s liability as a matter of law at this time without a more complete record.
Defendant identified plaintiff’s proposed exhibit number 17 as being a note from himself to decedent’s wife. It read as follows:
“Dear Jean,
“Sorry you were not at home, I wanted to talk with you, but will see you in the very near future — ■ I left Pete’s boots & cap in the stair closet — We are sending you a turkey and other things for Thanksgiving, so don’t plan on buying anything. We also have some financial help in store for you, — Will see you soon—
Russ”
The trial court sustained the objection that the note was wholly immaterial and incompetent, saying that “There is nothing in this note that constitutes, any admission of liability.”
In Murner v. Thorpe, 284 Mich 331, 336, we noted that statements by a party which furnish a basis for an inference that the speaker considers himself liable for negligence are properly permitted to be-shown as an admission of liability. In that case we specifically held that the statement, “Gro ahead; I hope she wins,” made by the defendant father of the driver of the car which injured the plaintiff when informed of the possibility of suit against him, was admissible. However, in Kinney v. Folkerts, 78 Mich 687, 702, one of the defendants in a negligence action told a third party to tell plaintiff “that the company would see him through all right, and not to worry, and that that would do him more good than all the medicines, or all the doctors, could do' for him.” The Court there held this to be “in no sense a confession or admission of liability.” In Murner v. Thorpe, supra, the court distinguished the statement made in the Kinney Case, supra (p 336), by saying:
“Such statement is not inconsistent with a benevolence of character, which, however, does not assume blame or admit fault.”
This is applicable to the instant case where at most the note is a sympathetic offer, indicating possibly a feeling of moral responsibility, but is not proper evidence from which the jury could infer a recognition or admission of liability. It was properly excluded.
The judgment of the trial court should be reversed and the case remanded for a new trial, with costs to appellants.
Smith, Reid, and Kelly, JJ., concurred with Butzel, J.
Sharpe, J.
(for affirmance). I am not in accord ■with the opinion of Mr. Justice Butzel for reasons hereinafter stated. An additional fact to he considered is that the collision occurred on a paved highway 20 to 22 feet in width.
If plaintiff is to recover in the instant case upon the theory of gross negligence on the part of defendant, Russell Coeling, she must rely upon the speed that defendant was traveling at the instant of collision as well as the condition of the highway and atmospheric conditions. I am unable to find any substantial evidence as to the speed of defendant’s car at the instant of collision or at the time his car left the highway, but his speed prior to the collision has a relationship on the issue of speed involved in this case. The evidence relating to speed comes from 3 witnesses produced by plaintiff. Wayne Arendsen testified that a Lincoln automobile, some 15 to 20 miles north of the scene of the accident, had gone around an S-curve at approximately 50 miles’ per hour and barely missed striking his vehicle. The trial court permitted this evidence to be introduced, but its value, if any, is negligible.
Sherwood Casterline, another witness produced by plaintiff, testified that he was driving south on TJS-131, and at a point about 2 miles north of where the collision occurred, a Lincoln automobile traveling approximately 70 miles per hour passed him. He also testified:
“About 2 miles north of Cedar Springs a dark car passed me. I don’t know whether it was blue or black. I know it was a 2-door car because there was only 1 door on 1 side. I observed the car for about 5 seconds. I couldn’t see the tires. I do not know its license number. It had 1 window in the rear. The window was an oval-shaped window. I do not know what model it was, but I think it was approxi mately a 1949. I don’t know how many people were in the car. I was alone.”
I think this evidence was properly submitted to the jury, but it should be noted that the testimony of this witness relates solely to the matter of speed.
Orie Vander Boon also testified in behalf of plaintiff. He stated that he was traveling north on the highway in question at a speed of 50 to 60 miles per hour and saw a Lincoln car traveling south at a speed of approximately 80 miles per hour. He testified :
“A. Well, I would have judged between 80 and 90 miles an hour, and as he was coming toward me, the pavement was wet, it seemed to be kind of a slight drizzling rain, if I remember right, and he, instead of — I don’t know just — he kind of angled as if he thought he was on the road, he kind of angled right off on the shoulder of the road and went right straight.
“As you leave Cedar Springs, the road curves a little to the right. I passed the Chevrolet. I believe I was past him before I got up on the knoll. By the time my car got to the crest of the hill, I was on the right-hand side, my side. As I got to the crest, I saw this Lincoln automobile. It would be very hard to say appproximately how far away it was. when I first saw it. It was quite a distance when I saw it. It is very hard to say. Looking at plaintiff’s exhibit number 2, I remember seeing the automobile in the foreground at the scene of the accident. Plaintiff’s exhibit number 2 is a fair representation to me of what the terrain looked like looking north as I got to the top of the hill. Looking at the picture, when I first saw the Lincoln, it was coming around the bend in the road. There were no other cars travelling in the same direction as the Lincoln at that time. There were no other cars travelling in my direction in front of me. I believe there was a drizzling rain. The highway was wet. I am certain of that because he slipped off the highway. I saw him go off the highway, and then as he tried to, seemed to try to get his car back on he went into a sidespin and passed me going forward, and the rest I had to see in my rearview mirror, which I did. I slpwed my ear down when I saw him coming and got off the shoulder for fear I might be killed and get hit. I saw him skid sideways directly in front of this Chevrolet. As he skidded in front of the Chevrolet, there must have been the impact. He was directly in front of that Chevrolet. I was about 300 nr 400 yards ahead of the Chevrolet at that time, but
1 am not positive of that. The Lincoln car was a ’49 to ’51. They all have the same body style. I can’t •say for sure. I did not notice the body style until after the accident.
“After the accident, I immediately turned around and went back to the cars. I looked at them at that time. As the Lincoln ear passed me, I observed 2 men in the front seat. I didn’t notice any in the back seat. One thing in particular I observed about the man that was driving was that he was laughing as he went by me on the shoulder of the road. * * *
“Even if the curve is 3/4 of a mile away, I think I saw him coming at the curve. That is what I still think. When he was off the shoulder of the road, he did not come back on the road fast. He skidded for some distance on Ms side of the road and very gradually angled across in front of the Chevrolet. He was close enough so that I could see that there was going to be a collision. He was quite a ways behind me when the collision took place. He may have been 300 to 500 yards behind me. (Emphasis supplied.) * * #
UQ. And then, in other words, this fellow came right back on the road and directly in back of the northbound car right behind you?
“A. Not that close. All very gradual. He didn’t flip right across the road, but very gradually got back on the road.”
From the above evidence it clearly appears that if plaintiff is to recover, she must plant her case upon the speed that defendant was traveling in order to establish gross negligence or wilful and wanton misconduct.
It is not always possible to mark with exact nicety a line which may be said to be the boundary between ordinary negligence and gross negligence or wilful and wanton misconduct. However certain guideposts have been established to differentiate between the 2 kinds of negligence.
It is a general rule that excessive speed, unless accompanied by wilful and wanton misconduct, is insufficient to impose liability under the so-called guest act. In Bushie v. Johnson, 296 Mich 8, defendant Gallagher, the driver of the car, drove at a speed of 60 or 70 miles per hour and sort of zigzagged on a curved road. The jury rendered a verdict for plaintiff, but the trial court granted defendants’ motion for judgment non obstante veredicto and entered judgment for defendants. In affirming the judgment, we said at pages 12 and 13:
“Plaintiff relies upon testimony of speed, zigzagging, repeated warnings to the driver, and the driver’s statement, ‘Watch me give them a real scare.’ There was no testimony as to the degree of the curves. Mere excessive speed does not constitute gross negligence. Balcer v. Pere Marquette R. Co., 266 Mich 538; Fink v. Dasier, 273 Mich 416; In re Mueller’s Estate, 280 Mich 203; Bielawski v. Nicks, 290 Mich 401. Repeated warnings to the driver to slow down or drive slower do not make the driver guilty of gross negligence. Bobich v. Rogers, 258 Mich 343; Pawlicki v. Faulkerson, 285 Mich 141. Noncompliance with the request of a guest passenger relative to speed is not of itself evidence of wilfulness or wantonness. Bobich v. Rogers, supra; Mogill v. Resnick, 263 Mich 103; Fink v. Dasier, su pra, Schlacter v. Harbin, 273 Mich. 465. Gallagher’s statement, ‘Watch me give then a real scare,’ does not establish the fact that he was driving in a wanton and reckless manner.”
In Rowe v. Vander Kolk, 278 Mich 564, 570, we said:
“A characteristic element in many, if not all, of the cases in which this Court has held a question of fact was presented under the guest act is that there was continued persistency in defendant’s course' of misconduct after ample warning, or after it became apparent that continuance of such misconduct would result in injury to the defendant’s guests.”
In Stolt v. Shalogian, 326 Mich 435, 439, we said:
“In order to establish ‘gross negligence or wilful and wanton misconduct’ under the circumstances of this case it is necessary for plaintiff to show that defendant continued to drive in reckless disregard of known and dangerous conditions after knowledge of the same.”
In LeGroh v. Bennett, 271 Mich 526, defendant was driving on a paved highway 40 feet wide, and at a speed of 50 to 60 miles per hour. The road was slippery. It was dark and raining, with a heavy fog, and objects were discernible only for a distance of 12 to 15 feet ahead. Defendant attempted to pass a car on the easterly side of the highway, the car swerved to the left, hit the rear end of a trailer on a cartage truck, glanced over to the right-hand side of the highway, describing an arc, coming back on to the left-hand side of the highway, and there crashed into a heavy freight truck on the westerly lane of traffic of the highway, resulting in the death of 3 of the occupants of the car. We there held that defendant was not guilty of gross negligence. It is a general rule that excessive speed, unless ac^ companied by wilful and wanton misconduct is in sufficient to impose liability under the so-called guest act, see Bushie v. Johnson, supra.
For cases holding that the driver of the car was not guilty of gross negligence or wilful and wanton misconduct, see Bobich v. Rogers, 258 Mich 343; Willett v. Smith, 260 Mich 101; Grabowski v. Seyler, 261 Mich 473; Mogill v. Resnick, 263 Mich 103; Elowitz v. Miller, 265 Mich 551; Turney v. Meyer, 266 Mich 87; Balcer v. Pere Marquette R. Co., 266 Mich 538; LeGroh v. Bennett, 271 Mich 526; Fink v. Dasier, 273 Mich 416; Schlacter v. Harbin, 273 Mich 465; Holmes v. Wesler, 274 Mich 655; Keilitz v. Elley, 276 Mich 701; Riley v. Waters, 277 Mich 620; Rowe v. Vander Kolk, 278 Mich 564; In re Mueller’s Estate, 280 Mich 203; Pawlicki v. Faulkerson, 285 Mich 141; Thompson v. Ross, 292 Mich 450; Hodge v. Beaman, 294 Mich 442; Coppin v. Lippy, 299 Mich 586; Piscopo v. Fruciano, 307 Mich 433.
However, we held in Kocks v. Collins, 330 Mich 423, 427, that continued persistency in a course of conduct, after ample warning, presented a question of fact as to whether defendant was guilty of gross negligence. The facts which determined this issue were as follows:
“The defendant drove at a speed greatly in excess of the lawful speed; he disregarded the reasonable expostulations and warnings of his guests, and in one instance increased his speed in response to a warning. The negligent conduct began the instant the defendant started his vehicle and continued until the accident occurred. The defendant knew that north of the railroad there was a dirt road. He was bound to observe that the shoulders were rough and rugged, and that there was a ditch on the right (north) side of the road, and further, that the vehicle ahead of him was proceeding at a much less speed than he and both passengers warned the defendant driver not to pass the car ahead.”
For cases holding that a question of fact was presented as to the gross negligence of defendant, see Manser v. Eder, 263 Mich 107; McLone v. Bean, 263 Mich 113; Goss v. Overton, 266 Mich 62; Schneider v. Draper, 276 Mich 259; Lucas v. Lindner, 276 Mich 704; Wolfe v. Marks, 277 Mich 154; Malicote v. DeBondt, 281 Mich 650; Rattner v. Lieber, 294 Mich 447; Greimel v. Fischer, 305 Mich 45; Rogers v. Merritt, 307 Mich 459; Titus v. Lonergan, 322 Mich 112; Davis v. Hollowell, 326 Mich 673 (15 ALR2d 1160); Cramer v. Dye, 328 Mich 370; Price v. Western, 330 Mich 680; Cain v. Enyon, 331 Mich 81; Horton v. Fleser, 340 Mich 68.
In the case at bar I am impressed with the fact that the element of deliberate recklessness is lacking. The most that can be said of defendant’s driving was that of ordinary negligence. Under this record there is no testimony that defendant was guilty of gross negligence or wilful and wanton misconduct in omitting to use care and diligence to avert a threatened danger after he was chargeable with knowledge of such danger.
When I consider the condition of highways today, the improvement in cars as compared to a few years ago, I must conclude that the term “excessive speed” today does not always denote the same miles per hour as in former years. In view of the facts in this case and in the light of authorities heretofore quoted, I am constrained to hold that defendant, Bussell Coeling, cannot he charged with wilful and wanton misconduct on the day in question. Under my decision in this case I find it unnecessary to determine the liability of the Empire Lumber Company.
The judgment is affirmed, with costs.
Carr, C. J., and Boyles and Dethmers, JJ., concurred with Sharpe, J,
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Butzel, J.
Hershel Radio Company, a copartnership, plaintiff, brought suit against the Pennsylvania Railroad Company, a Pennsylvania corporation, ’ defendant, and the Southern Pacific Railroad Company, codefendant. Upon dismissal of the case against the codefendant (Hershel Radio Company v. Pennsylvania Railroad Company, 334 Mich 148) plaintiff filed an amended declaration against the Pennsylvania Railroad Company as sole defendant. Pennsylvania’s liability, if any, stems from the fact that it is a connecting or delivering carrier. 49 HSCA, § 20(11). Plaintiff contends that defendant is liable for damages to a shipment of electrical and radio equipment sent to Detroit, Michigan, from the Southern Pacific Company’s freight-yards at its Stockyards station at Oakland, California, where the plaintiff loaded the equipment in a box car furnished by Southern Pacific. The undisputed evidence shows that the car while en route did not suffer any collision or untoward incident.
Plaintiff obtained the articles in San Francisco, California, from the atomic division of the war assets administration for approximately $4,800. As purchased they consisted of 200 radar transmitters and 439 motor controls. The radar transmitters alone originally cost the government $210,000 and had never been used. On inquiry as to shipping rates it was ascertained that the radar unit rate was substantially higher than that for transformers. As plaintiff was interested solely in the transformers contained in the radar transmitters he decided to dismantle the latter and ship merely the transformers together with the other equipment. Plaintiff sent its own agent to attend to the operation and see that the units were taken to and dismantled at a scrap-metal yard and then loaded on the box car for shipment to Detroit. Some of the equipment purchased was sold in California so that as sent the shipment consisted of 396 radar transformers (there were 2_ in each transmitter), 348 motor controls and 185 motors. The shipping agreement was that the articles were to be loaded and counted by plaintiff and there was written on the bill of lading the letters “SLC.” This is the manner of designating “shipper’s load and count.”
The record indicates and the trial court found as a matter of fact that the articles were not properly secured in the freight car and that this defective loading caused the damage, principally to the transformers. "We accept this finding. It is not here urged, nor do we think, that it is against the preponderance of the evidence.
As part of its theory of recovery plaintiff claimed that agents of the Southern Pacific Railroad Company, the initial carrier, saw and tacitly approved of the defective loading of the car. The court found as a matter of fact that the employee involved “had no authority to approve the loading of any freight car for the railroad, nor could he assume such authority. That was entirely without the scope of his employment.” The subagent at the Stockyards station testified at the trial that he had not in any way seen or examined the method of loading or approved of it and that it was not part of his duties to superintend or advise as to the loading. The agent and an industrial clerk were the only employees of the railroad at its Stockyards station. The agent further testified that the clerk’s duties were to check the cars and make up switch lists for the switching crews and to pick up and sign bills of lading on outbound cars, and that he had no duties or authority to advise shippers in regard to loading. The clerk, a Mr. Heyward, actually made out the bill of lading. Pie testified that he had been an employee of the Southern Pacific for 31 years, that he had never had occasion to inspect the manner or method of loading a ear or load shipment, that this was not part of his duties, that he had never been consulted by plaintiff as to the manner of loading, that he never entered the car, that during the 2 days the car was being loaded he checked the ear for demurrage purposes, and that he put the seal on the car after it^had been loaded and closed by plaintiff. Plaintiff’s agent in charge of the loading operation testified that an employee of Southern Pacific, apparently Heyward, looked over the loading operation and approved of it and considered it proper. The court, however, considered plaintiff’s testimony unsubstantiated. We affirm the findings of fact in this regard as in accord with, and not against, the preponderance of the evidence.
The question presented is, assuming careless loading by plaintiff and the finding as to Southern Pacific’s agent’s participation in the loading operation, whether defendant is liable for the damage to the shipment sent under the “shipper’s load and ■count” designation. Plaintiff apparently does not ■deny that these were the terms of the shipment. Cf., People’s Savings Bank of Saginaw v. Pere Marquette Railway Co., 235 Mich 399.
This shipment is governed by Federal bills of lading legislation, 49 USCA, § 101, which provides in part that:
“The carrier may also by inserting in the bill of lading the words ‘shipper’s weight, load and count,’ •or other words of like purport, indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages ■caused by the improper loading.”
It is a fact that improper loading was the cause «of the damage. The patent import of this statute serves to relieve defendant from any liability in this ease.
However, it is plaintiff’s contention that despite its own negligence and the “shipper’s load and count” designation the ■ carrier may be, and in this case is, liable if it knew of or had the means of knowing of the improper loading of the ^ar. In support of this proposition counsel cites Thomson v. Chicago, Milwaukee & St. Paul R. Co., 195 Wis 78 (217 NW 927); Mitchell v. North Pacific Steamship Co., 60 Cal App 554 (213 P 293); S. Valentine & Co. v. Atchison, Topeka & Santa Fe R. Co., 220 Ill App 188; Newman v. Seaboard Air Line R. Co., 188 NC 341 (124 SE 627); Gehrke v. American Railway Express Co., 61 ND 668 (240 NW 321; 81 ALR 808); Kinnick Bros. v. Chicago, Rock Island & Pacific R. Co., 69 Iowa 665 (29 NW 772); 13 CJS, Carriers, § 78c. While some of these authorities involve reception by the carrier of defectively packaged or crated goods, a situation properly distinguishable from negligent loading of goods in a freight car, there is support for the rule as advanced by plaintiffs. See, generally, 13 CJS, Carriers, § 67b; 9 Am Jur, Carriers, § 730; 19 LRA NS 952; LRA1915C, 1220. For those who adhere to this rule it is apparently considered an unwritten exception to the statute regarding “shipper’s load and count” contracts as set forth in 49 USCA, § 101, supra. See Perkel v. Pennsylvania R. Co., 148 Misc 284 (265 NYS 597).
To the contrary are decisions which hold the carrier not liable where the shipper was at fault in loading, notwithstanding knowledge on the part of the carrier of the shipper’s negligence. Robinson v. New York Central R. Co., 245 App Div 378 (282 NYS 877), affirmed without opinion, 270 NY 659 (1 NE2d 985); Ross v. Troy & Boston R. Co., 49 Vt 364 (24 Am Rep 144); St. Louis-San Francisco R. Co. v. Glow Electric Co., 35 Ohio App 291 (172 NE 425). One court, in Illinois Central R. Co. v. Rogers & Thomas, 162 Ky 535 (172 SW 948, LRA1915C, 1220, Ann Cas 1916E, 1201), stated (p 539):
“However, as has been seen from the authorities cited, the great weight of authority supports the proposition that where the shipper loads the car himself, the carrier is not liable for loss or injury arising from such defective manner of loading, whether the same be discoverable or not, if not actually discovered by the carrier. The carrier has a right to assume that the shipper has loaded the car in a proper manner; and it does not lie in the mouth of a shipper whose act or fault in respect to the manner in which he loaded the car has resulted in loss ■or injury to his property, to say to the carrier that it might have discovered such improper loading by inspection. The shipper may not thus derive advantage from his own wrong.”
The Federal courts are in seeming disagreement .as to what is the correct and proper rule. Compare South Carolina Asparagus Growers’ Assn. v. Southern R. Co. (CCA, 1931), 46 F2d 452, 454, 455, with Modern Tool Corp. v. Pennsylvania R. Co. (D NJ, 1951), 100 F Supp 595, 597, 598. Cf., Standard Hotel Supply Co., Inc., v. Pennsylvania R. Co. (SD NY, 1945), 65 F Supp 439, 442; Blytheville Cotton Oil Co. v. Kurn (CCA, 1941), 155 F2d 467, 470. In short, some say the railroad is liable if it knew or could have found out, some say it is not liable even if it knew, and some say it is not liable unless it actually knew, whether discoverable or not, about the shipper’s fault in loading. There has been expressed no readily discernible “majority” or “better” rule .and to say that there has is to ignore some cases and •emphasize others, all equally pertinent.
Whatever the rule, however, we must consider the Tacts of the instant case. The court below found the only 2 employees in the Stockyards station unable to conduct an inspection because such would have been contrary to their authority, as well as custom and practice. The court chose generally to believe the testimony of the clerk Heyward who, to reiterate,, testified that he saw the car twice, once empty and once while being loaded; that he did not observe the manner in which it was being loaded; that he did not have any conversation with regard to the manner of loading, and that he did not look into the closed car prior to sealing it. With these facts we must affirm the decision for defendant, even under-plaintiff’s view of the law. Plaintiff did not establish the fact of an inspection or approval, or Southern-Pacific’s agent’s authority to conduct one, or that it could have been conducted at the Stockyards station where the car was loaded. Therefore, we need not consider or decide which is the “better” rule of' law.
The terms of the “judgment decree” entered on the-court below were that defendant’s “motion for directed verdict is hereby granted and judgment of' no cause of action shall be entered accordingly.”' Relying upon this plaintiff argued in its brief on appeal that the court erred in granting the motion for directed verdict because “the ‘Empson’ act, which permits the trial court to reserve decision on a motion for directed verdict does not apply to a case heard without a jury.”
The opinion written by the court below concluded with the following:
“The plaintiff having failed to prove its case by a preponderance of the evidence, a judgment of no cause of action will be rendered in favor of the defendant, with costs to be taxed.”
The error of the clerk in basing the judgment on the motion for directed verdict instead of the grounds set forth in the opinion was discovered by defendant on reading plaintiff’s brief in this ■Court and upon proper motion it was brought to the attention of the court below. At the hearing the judge stated that he did not grant the motion for directed verdict, but that he “rendered a judgment of no cause of action after hearing the testimony by both sides, and did not grant it on the motion by defendant’s counsel.” There was some ■discussion as to the power of the court to make such .a correction once the case was in the Supreme Court but the judge ordered the judgment corrected nunc pro tuno. These facts appear in the supplemental record on appeal filed by the parties and stipulated by them as containing the pleadings and proceedings had in this cause since the settlement of the original record. It was duly certified by the trial judge. We think the trial judge correct in his action and within his statutory power. CL 1948, §§ 616.3, 616.5 (subd 12), 616.6 (Stat Ann §§27.840, 27.842 [subd 12], 27.843). See Grand Rapids Savings Bank v. Widdicomb, 114 Mich 639.
Judgment affirmed, with costs to defendant.
Carr, C. J., and Smith, Sharpe, Boyles, Reed, Dethmers, and Kelly, JJ., concurred.
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Kelev, J.
Plaintiff Fee drove a'tractor and trailer -carrying 4 Oldsmobile automobiles north on Mart .street, in Muskegon. The plaintiff Industrial Transport Incorporated owned the tractor and trailer, .and plaintiff United States Fire Insurance Company carried the cargo insurance on the 4 Oldsmobiles.
Mart street, 1-1/2 blocks long, runs in a northerly and southerly direction from Western avenue to the boat docks. Toward the northerly end of this street there are 5 sets of railroad tracks crossing the street. "The most northerly set of tracks are maintained and controlled by defendant, Grand Trunk Western Railroad Company, and for the purpose of this opinion will be referred to as track 5. The most southerly tracks (being the first set of tracks plaintiff Fee crossed as he drove north on Mart street) will in this opinion be referred to as track 1. Tracks 2, 3 and 4 are located between tracks 1 and 5.
An automatic electrically-operated crossing warning signal of the type generally used to warn vehicular traffic approaching a railroad is stationed 10-feet south of track 1, on the easterly side of Mart street. The type of warning given by said device consists of 2 flashing lights and a bell. On this warning device is a sign: “4 tracks — Stop on red.” Between tracks 3 and 4, a few feet to the right of the street, is located a “T” shaped sign on a pole-with words “Railway Crossing.” Track'5 is not marked by any sign, light or warning device to warn a person driving north.
On the evening of the collision of plaintiff Fee’s tractor and trailer and defendant’s railroad switch engine, it was dark and snowy and the warning light was not flashing and the warning bell not ringing as Fee drove north toward the dock and crossed track 1.
Plaintiff Fee testified that he “virtually came to a stop,” but did not come to a complete stop before proceeding across track 1; that he shifted to the second lowest gear of 8 forward speeds; that he made observation before crossing the first set of tracks and continued to make observation as he continued to cross the rest of the tracks at a speed of 5 to 10 miles per hour; that he heard no whistle or warning-signal until just a second before the switch engine-struck his vehicle in the vicinity of the cab door, as he was crossing track 5.
As the result of said collision $269.80 damages-, were claimed by plaintiff United States Fire Insur unce Company, $859.06 by Industrial Transport Incorporated, and $500 by plaintiff Pee for injury suffered. Each of tbe 3 plaintiffs asked double damages by virtue of CL 1948, § 462.19 (Stat Ann § 22.-38).
A jury trial was held in Ingham county. The proof established that the weight of the tractor was 5,700 pounds, the trailer 10,100 pounds, and each of the 4 automobiles being transported weighed from 1,800 to 2,000 pounds. The court directed the jury to bring in a verdict of no cause for action because plaintiff Pee was guilty of negligence in violating the State law providing that the driver of any motor vehicle weighing over 10,000 pounds, including the .load thereon, shall not cross a railroad track without coming to a full stop within 50 feet but not less than 10 feet from such railroad track.
PA 1949, No 300, § 669 (CLS 1954, §257.669 [Stat Ann 1952 Eev § 9.2369]), provides:
“(a) The driver of any motor vehicle # * * •weighing over 10,000 pounds, including the load thereon, before crossing at grade any track or tracks •of a railroad, shall stop such vehicle within 50 feet but not less than 10 feet from the nearest rail of such railroad and while so stopped shall listen and look in both directions along such track for any approaching train, and for signals indicating the approach ■of a train, except as hereinafter provided, and shall not proceed until he can do so safely. * * *
“(b) No stop need be made at any such crossing where a police officer or a traffic-control signal directs traffic to proceed.”
PA 1949, No 300, §48 (CLS 1954, §257.48 [Stat .Ann 1952 Eev §9.1848]), reads:
“ ‘Eailroad track’ means every pair or group of pairs, as the ease may be, of any railroad or traction company, except municipal streetcar companies.”
Garbacz v. Grand Trunk Western Railway Co., 323 Mich 7, dealt with a similar question and this Court held that a statute almost identical to the one above referred to makes the driver of a trailer guilty of contributory negligence as a matter of law when he drives a vehicle exceeding 10,000 pounds in weight across a railroad track without first stopping before crossing said track.
Appellants contend that the above case was decided prior to PA 1949, No 300, § 669, subd (b), providing that the stop need not be made at a “crossing-where a police officer or a traffic-control signal directs traffic to proceed.”
PA 1949, No 300, §72 (CLS 1954, §257.72 [Stat Ann 1952 Rev § 9.1872]), defined traffic-control signal as follows:
“ ‘Traffic-control signal’ means any device whether manually, electrically or mechanically operated, by which traffic is alternately directed to stop and to proceed.”
Appellants contend that the warning signal located about 10 feet south of track 1 met the statutory definition of a traffic-control signal and excused plaintiff Pee from stopping before crossing the track, because, while the signal did not communicate a “go” signal, there was an “implied communication that you may proceed when the signal is not flashing-red.”
The traffic-control signal near track 1 did not alternately direct traffic to stop and proceed and, therefore, did not meet the statutory requirements of a traffic-control signal which would excuse plaintiff Pee from bringing his vehicle to a stop before crossing track 1.
Appellants contend that plaintiff Fee’s failure to stop was not as a matter of law a proximate cause of the accident because “even if Dale Pee had .stopped, looked and listened for 5 minutes before proceeding he might not have heard or seen a switch «engine running with no lights.”
In Garbacz v. Grand Trunk Western Railway Co., supra, 10, 11, this Court held:
“Plaintiff contends, however, that there is no .showing that the failure to stop before crossing the tracks contributed to the accident. It is not necessary to show what was so perfectly obvious. It would follow from what the proofs disclosed, that .at the rate the train was approaching, had plaintiff stopped, he would have seen the train straight ahead «of him or it would have crossed the road before he started again. Where the record is such that men with reasonable minds would not differ, as here, there is no question of fact for the jury. Swift v. Kenbeek, 289 Mich 391.”
Plaintiff Dale Pee was guilty of contributory negligence as a matter of law and the trial court did not err in directing a verdict.
Judgment affirmed, costs to appellee.
Caer, C. J., and Butzel, Smith, Sharpe, Boyles, Beid, and Dbthmers, JJ., concurred. | [
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Dethmers, J.
Plaintiff appeals from judgment for defendants entered on a jury verdict of no cause for action in her suit for damages resulting from injuries sustained when struck by defendants’ automobile.
Plaintiff was walking west on the north side of an east-and-west street and, when the traffic light turned green in her favor, she proceeded to cross an intersecting, 4-lane, north-and-south highway. The automobile, owned by both defendants and driven by defendant Dennis C. Clampett, hereinafter called the defendant, was traveling east and, with the traffic light green in its favor, entered the intersection of the 2 streets and turned to its left, or north. Defendant was about 2 feet from plaintiff when he first saw her and plaintiff did not see ■defendants’ automobile until it was 3 feet from her. The point of impact constituted the only material factual dispute between them, plaintiff saying that •she was struck in the west half and the defendant saying she was struck in the east half of the north- and-south highway.
First, plaintiff says that the court injected foreign issues into its charge to the jury by commenting -on the rights and duties of one driving into an intersection and making a left turn with respect to automobiles approaching from the opposite direction and at a time when there is a change in the traffic light. Plaintiff says no other automobiles were approaching nor did the light change. The court emphasized that its instructions in this connection were intended solely to clarify the rights and duties of defendant. Nothing said in that respect was of such character as to confuse the issues of this case in the minds of the jury, nor did it misstate the law or constitute prejudicial error.
Nest, plaintiff: says that the court erred in charging that after defendant entered the intersection he was required to yield to vehicles approaching from the opposite direction, which were either in or near the intersection, and to give the appropriate signal, and that then he might proceed to turn left and that other vehicles approaching from the opposite direction at a greater distance were then required to yield the right-of-way to defendant. The instruction was in accord with CLS 1954, § 257.650 (Stat Ann 1952 Rev § 9.2350), and was not in error. Plaintiff’s contention that it was improperly given appears to stem from her position that the law required defendant, after entering the intersection under a favorable green light, to stop and wait for a change in the traffic light before completing the left turn. We are cited to no statutory or ordinance authority for that view.
Plaintiff complains of the court’s failure to charge, as requested, that defendant, before turning left, was required, first, to see that it could be done in safety. The court covered the substance of this request by its instructions in general and particularly by charging that defendant could make the turn provided that he did it with due care under all the circumstances.
Plaintiff points to an isolated statement in the court’s instructions to the effect that the verdict must he no cause for action if both plaintiff and defendant were guilty of negligence without the addition that negligence of plaintiff, to bar recovery, must have been a proximate cause. Repeatedly in its instructions, however, the court charged that negligence of the plaintiff barring recovery must have been such as contributed to the accident and her injuries. The court’s statement that contributory negligence on the part of plaintiff, however slight, would bar her right to recover was not in error.
The court’s instructions, taken as a whole, fairly stated the rights and duties of the parties and did not prejudice plaintiff’s rights so as to entitle her to* reversal.
Plaintiff says the court erred in excluding from evidence the officer’s report of the accident. Examination thereof and of relevant testimony discloses that it would not have supported plaintiff’s version of the disputed facts and that no prejudice to plaintiff resulted from its exclusion.
The point of impact was a matter of dispute-which bore on the questions of defendant’s negligence and of plaintiff’s contributory negligence in failing to see defendants’ automobile until it was 3 feet away. There was evidence to support both versions- and a jury verdict in accord with that of the defendant was not against the great weight of the evidence nor were defendants liable as a matter of law to plaintiff so as to entitle her to a directed verdict.
Affirmed, with costs to defendants.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Kelly, JJ., concurred.- | [
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Boyles, J.
This case involves the construction of Michigan Court Rule No 38 (1945). The precise question is whether, as claimed by the plaintiff, he should have been allowed a voluntary nonsuit of his case without prejudice, instead of the dismissal with prejudice ordered by the lower court.
Plaintiff, an attorney, sued the defendants in the common pleas court of Detroit for legal services. After service of process, answers to the declaration were filed by tbe defendants, tbe case was set for trial, and the plaintiff retained counsel to represent him in tbe trial. On tbe day before tbe date set for trial plaintiff called defendants’ counsel requesting consent to an adjournment, wbicb was refused. On tbe date set for trial plaintiff’s counsel appeared in tbe common pleas court and requested an adjournment on bis own account and also because be bad received a call from tbe plaintiff giving reasons why be would be unable to come to court on that date. Defendants objected and tbe court denied tbe request for adjournment, whereupon plaintiff’s counsel, at plaintiff’s suggestion, moved for a voluntary nonsuit. This was objected to by tbe defendants, tbe motion was denied, and the court entered an order dismissing tbe suit with prejudice. Thereupon plaintiff took an appeal to tbe circuit court where the circuit judge who beard tbe matter entered an order affirming tbe order of tbe common pleas court. Tbe plaintiff appeals here.
Appellant concedes that the rules of tbe common pleas court do not contain any provision for nonsuit, and points to a rule of said court which provides:
“In all matters not herein provided for, or not expressly prohibited or specified by statute, tbe Michigan Court Eules shall govern.”
Michigan Court Eule No 38 (1915), applicable to this situation, provides:
“Tbe plaintiff may at any time, before answer filed, and on tbe payment of costs, discontinue bis suit by notice of discontinuance filed in tbe cause and giving notice thereof to the defendant or bis attorney. Thereafter be may discontinue, on tbe same terms, only (1) upon filing a stipulation to that effect signed by tbe defendant, or his attorney, or (2) on the order of tbe court or judge made on special motion in wbicb tbe grounds for such discontin nance shall he set forth and which shall he supported by affidavit.”
Defendants’ answer having been filed in the instant case, under the above rule the plaintiff was not entitled to a discontinuance merely by filing and giving notice thereof to the defendants and payment of costs. Under the rule, his motion for discontinuance would be granted only upon compliance with one or the other of the 2 conditions described in the second sentence of said rule.
No claim is made that a stipulation for discontinuance had been signed, consequently the condition on which the motion of the plaintiff for a voluntary nonsuit must be based, and would be granted, was by an order of the court made on special motion in which the grounds for such discontinuance were set forth, supported by affidavit. We find nothing in the record here to show that any such grounds for a discontinuance had been shown when plaintiff’s attorney moved for a nonsuit without prejudice.
Michigan Court Rule No 38 (1945) controls, there being no express statutory provision or specific rule in the common pleas court governing the question. The granting or denial of a nonsuit rests in the sound discretion of the trial court. Reed v. Burton Abstract & Title Co., 344 Mich 375. There was no abuse of discretion in denying with prejudice plaintiff’s motion for a nonsuit. The orders entered in the common pleas court and the circuit court on appeal are affirmed. Pear v. Graham, 258 Mich 161; Shields v. Shields, 319 Mich 316, 321; Bettendorf v. F. W. Woolworth Co., 329 Mich 409.
Affirmed. No costs, appellees not having filed a brief in this Court.
Dethmers, C. J., and Sharpe, Smith, Reid, Kelly, Carr, and Black, JJ., concurred. | [
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Boonstra, J.
The prosecution appeals by leave granted the trial court’s order denying its request to order defendant, Francis Steven Mineau, to vacate his residence within the “student safety zone” as a term of probation as a registered sex offender in accordance with MCL 28.735(1), part of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. We vacate the order and remand for resentencing.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
At all relevant times, defendant’s residence was located approximately 191 feet from an elementary school. Pursuant to SORA, because he lived within 1,000 feet of the school, he lived within a “student safety zone.” MCL 28.733(f). In 1999, he was apparently convicted of indecent exposure involving two young girls who were walking to school. See MCL 750.335a. Consequently, he was required to register as a sex offender, but at the time, SORA did not require him to vacate his residence. In 2005, the Legislature amended SORA by adding MCL 28.735, which, inter alia, provides that individuals who are required to be registered under SORA “shall not reside within a student safety zone.” MCL 28.735(1), as added by 2005 PA 121 (effective January 1, 2006). However, notwithstanding his 1999 conviction, defendant was not required to vacate his residence when the statute became effective because he “was residing within that student safety zone on January 1, 2006.” MCL 28.735(3)(c), as amended by 2005 PA 322. In 2011, defendant was removed from the sex offender registry.
On May 15, 2012, defendant exposed himself to elementary school children who were passing his house in a school bus. Defendant was charged with, and pleaded guilty of, aggravated indecent exposure, MCL 750.335a(2)(b). As a consequence, defendant was again required to register as a sex offender. Defendant was sentenced, in relevant part, to probation subject to a number of conditions, including placing an opaque fence around his property. Relevant to the instant appeal, the prosecutor argued that under MCL 28.735(1), defendant was required to vacate his residence within the student safety zone and relocate to more than 1,000 feet from school property. The trial court concluded that because defendant had resided within the student safety zone on January 1, 2006, the exception set forth in MCL 28.735(3)(c) applied to him. The trial court accordingly declined to order defendant to vacate his residence as a term of probation. This appeal followed.
II. STANDARD OF REVIEW
“We review for an abuse of discretion a trial court’s decision to set terms of probation.” People v Malinowski, 301 Mich App 182, 185; 835 NW2d 468 (2013). An abuse of discretion occurs when the trial court’s decision falls outside the range of principled outcomes. Id. Additionally, an error of law might lead a trial court to abuse its discretion. Donkers v Kovach, 277 Mich App 366, 368; 745 NW2d 154 (2007). We review de novo as a question of law an issue of statutory interpretation. People v Anderson, 298 Mich App 178, 181; 825 NW2d 678 (2012).
III. ANALYSIS
MCL 28.735(1) states that “[e]xcept as otherwise provided ... , an individual required to he registered [under SORA] shall not reside within a student safety zone.” It is not disputed that unless an exception applies, MCL 28.735(1) would require defendant, as a registered sex offender living in a student safety zone, to vacate his residence. However, the statute provides exceptions to the requirement found in MCL 28.735(1) in certain instances. In pertinent part, MCL 28.735(3) provides:
This section does not apply to any of the following:
(c) An individual who was residing within that student safety zone on January 1, 2006. However, this exception does not apply to an individual who initiates or maintains contact with a minor within that student safety zone.
As noted, defendant was residing in his current residence on January 1, 2006. Consequently, under the first sentence of MCL 28.735(3)(c), defendant would not be required to vacate his residence. However, the applicability of the second sentence is at issue here. It is equally undisputed that “contact” need not be direct and physical. The trial court properly, if implicitly, concluded that defendant’s conduct in the instant offense had constituted a kind of contact. The relevant inquiry is whether the “exception to the exception” set forth in the second sentence of MCL 28.735(3)(c) can be satisfied by the very conduct that causes an individual to have to register as a sex offender or whether it can only be satisfied by subsequent conduct. In other words, does the Legislature’s use of the phrase “initiates or maintains contact” include a temporal component that cannot be satisfied by the conduct giving rise to the current offense but can only be satisfied by subsequent conduct?
We do not find such a temporal component in the language used by the Legislature in MCL 28.735(3)(c). What the Legislature was addressing was its heightened concern regarding that subset of sex offenders whose conduct is directed at minors and, in particular, minors within a student safety zone. Consequently, in recognition of the fact that the first sentence of MCL 28.735(3)(c) provides a general exception for sex offenders (of any type) who were residing within a student safety zone on January 1, 2006, the Legislature added the second sentence of MCL 28.735(3)(c) to render that exception wholly inapplicable to “an individual who initiates or maintains contact with a minor within that student safety zone.”
The language used by the Legislature does not, as defendant suggests, limit the exception to the exception to conduct that occurs after an individual is required to register as a sex offender. To the contrary, the Legislature provided that the exception set forth in the first sentence of MCL 28.735(3)(c) simply has no application in the case of an individual who has contact with a minor in a student safety zone. The suggested temporal component would, in essence, grant defendant a “free pass,” but it is one that we find the Legislature did not intend by the plain language of the statute.
Accordingly, we hold that the statutory language does not limit the exception to the exception to conduct that occurs after an individual is required to register as a sex offender. Rather, the exception set forth in the first sentence of MCL 28.735(3)(c) simply does not apply in the case of an individual who has contact with a minor in a student safety zone.
This Court’s decision in People v Zujko, 282 Mich App 520; 765 NW2d 897 (2009), is not to the contrary. In Zujko, this Court held that “MCL 28.735(1) and MCL 28.735(3)(c), taken together, mean that a registered sex offender shall not reside in a student safety zone unless the offender resided in that zone as of January 1, 2006.” Id. at 523. In discussing the word “individual” in the context of MCL 28.735(3)(c), this Court stated that “if such an individual engages in any contact with a minor, the individual loses the benefit of the [exception] and must move his or her residence within 90 days pursuant to [MCL 28.735(4)].” Id. at 524. Zujko thus merely held that the exception set forth in the first sentence of MCL 28.735(3)(c) applied to any individual who resided in the student safety zone as of January 1, 2006, thereby rejecting the prosecution’s position that MCL 28.735(3)(c) also required that the individual have been a registered sex offender as of that date. The Court’s holding did not require interpretation of the second sentence of MCL 28.735(3)(c) because the defendant in that case was not charged with, or required to register as a sex offender because of, any “contact with a minor within [the] student safety zone.” MCL 28.735(3)(c).
Nor does the interplay between MCL 28.735(3)(c) and (4) require a different result. MCL 28.735(4) states:
An individual who resides within a student safety zone and who is subsequently required to register under [MCL 28.723 through MCL 28.730] shall change his or her residence to a location outside the student safety zone not more than 90 days after he or she is sentenced for the conviction that gives rise to the obligation to register under [MCL 28.723 through MCL 28.730]. However, this exception does not apply to an individual who initiates or maintains contact with a minor within that student safety zone during the 90-day period described in this subsection.
While MCL 28.735(4) was not directly at issue in Zujko, the Court addressed its interplay with MCL 28.735(3)(c) in dicta, as follows:
Subsection 4 gives an individual who resides in a student safety zone and who becomes a registered sex offender 90 days to relocate outside the zone. A reading of MCL 28.735(4) and MCL 28.735(3)(c) indicates that an individual who falls under the 3(c) exemption would not be compelled to comply with the requirement of subsection 4. However, an individual who did not meet the 3(c) requirement, i.e., he or she did not reside in a school safety zone before January 1, 2006, would be required to move his or her residence within 90 days pursuant to subsection 4. [Zujko, 282 Mich App at 523-524.]
MCL 28.735(4) thus generally affords an individual who is required to move from a student safety zone pursuant to MCL 28.735(1) a period of up to 90 days in which to do so. As the Court in Zujko noted, an individual who falls under the MCL 28.735(3)(c) exception is not required to move from the student safety zone, and therefore Subsection (4) does not apply to that individual. But “an individual who did not meet the [Subsection] 3(c) requirement, i.e., he or she did not reside in a school safety zone before January 1, 2006, would be required to move his or her residence within 90 days pursuant to subsection 4.” Id. at 524. What the Court in Zujko did not address, even in dicta, was the effect, if any, of Subsection (4) when the second sentence of MCL 28.735(3)(c) applies. That, again, is because the defendant in Zujko had not engaged in any “contact with a minor within [the] student safety zone.” MCL 28.735(3)(c).
We conclude, consistently with Zujko, that like an individual to whom MCL 28.735(3)(c) does not apply (because the individual did not reside within the student safety zone as of January 1, 2006), an individual who generally does meet that MCL 28.735(3)(c) requirement, but to whom MCL 28.735(3)(c) is wholly inapplicable by virtue of the exception to the exception set forth in the second sentence of MCL 28.735(3)(c), is subject to MCL 28.735(4). He or she must therefore “change his or her residence to a location outside the student safety zone not more than 90 days after he or she is sentenced for the conviction that gives rise to the obligation to register under [MCL 28.723 through MCL 28.730].” MCL 28.735(4). However, as it did in MCL 28.735(3)(c), the Legislature has provided an exception when the individual “initiates or maintains contact with a minor within that student safety zone during the 90-day period .. . .” MCL 28.735(4). In that event, the individual is not entitled to the benefit of the 90-day allowance that Subsection (4) otherwise affords.
In other words, if, as here, the current offense required registration under SORA, see MCL 28.723(1)(a); MCL 28.722(k) and (s)(ii), and MCL 750.335a(2)(b), and the individual offender was not subject to an exception or, as here, the specific exception was inapplicable, the individual generally would have a 90-day period within which to change his or her residence. That is true even if, as here, the offense involved “contact with a minor within [the] student safety zone.” MCL 28.735(3)(c). However, if the individual “initiates or maintains contact with a minor within [the] student safety zone during the 90-day period,” MCL 28.735(4), he or she loses the benefit of the 90-day period otherwise allowed to effect the change of residence.
Consequently, because defendant’s current offense involved contact with a minor within the student safety zone, MCL 28.735(3)(c), the exception set forth in the first sentence of that subsection is inapplicable, and defendant must therefore vacate his residence within the student safety zone pursuant to MCL 28.735(1). Pursuant to MCL 28.735(4), he must do so within 90 days of the imposition of his sentence. If he were to initiate or maintain contact with a minor within that student safety zone during that 90-day period, he would lose the benefit of that 90-day allowance.
We therefore find that the “exception to the exception” set forth in the second sentence of MCL 28.735(3)(c) is satisfied by the conduct of the instant offense that caused defendant to have to register as a sex offender. We vacate the trial court’s order denying the prosecution’s request to order defendant to vacate his residence as a term of probation, and remand for resentencing with that added term of probation.
Reversed and remanded. We do not retain jurisdiction.
Beckering, P.J., and Ronayne Krause, J., concurred with Boonstra, J.
People v Mineau, unpublished order of the Court of Appeals, entered June 21, 2013 (Docket No. 313178).
The exact nature of defendant’s prior conviction was not specified in the record before us, and we have not been provided with a copy of defendant’s presentence investigation report. Nevertheless, defendant has not disputed the prosecution’s description of the 1999 incident.
We similarly find no temporal component in the Legislature’s use of the word “required” in MCL 28.735(1). The Legislature could have prohibited only those individuals who were required to register before committing a current offense from residing in a student safety zone. It did not do so, however. Rather, by the plain language of MCL 28.735(1), defendant is, by virtue of his current offense, “an individual required to be registered” under SORA. He is therefore prohibited under that section from residing in the student safety zone.
In arguing that an individual did not fall within the MCL 28.735(3)(c) exception unless he or she was a registered sex offender as of January 1, 2006, the prosecution contended in Zujko that the trial court’s contrary interpretation would render MCL 28.735(4) nugatory. This Court rejected that position. | [
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Boonstra, J.
Appellant Diana Alexandroni, the mother and supervisory parent of juvenile respondent Robby Lampart, appeals by delayed leave granted the trial court’s order denying her motion to modify or cancel a restitution obligation. We reject certain portions of the trial court’s reasoning, and therefore reverse that order in part, and remand for further proceedings. We also affirm the order in part, because we at this time agree with the trial court’s decision not to cancel or modify the restitution obligation, inasmuch as Alexandroni may have assets, or may in the future have sources of income, other than her Social Security disability insurance (SSDI) benefits, from which her restitution obligation can be satisfied.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In 2007, Lampart, a juvenile at the time, entered a plea of admission to arson. Restitution was ordered in the total amount of $28,210. The trial court subsequently ordered Alexandroni, on behalf of Lampart, to pay restitution, pursuant to MCL 712A.30(15), in the amount of $250 per month. See also In re McEvoy, 267 Mich App 55, 57-58; 704 NW2d 78 (2005). The trial court further ordered Alexandroni’s employer to withhold $62.50 from her wages each week in order to satisfy the restitution obligation.
In September 2009, Alexandroni suffered a heart attack. Her resultant heart condition left her unemployed. At the time of her heart attack, the unpaid restitution totaled $22,960. Because Alexandroni was unemployed, the wage garnishment of $62.50 that was originally ordered by the trial court terminated.
On April 18, 2011, the trial court held a reimbursement hearing regarding Alexandroni’s obligation under the restitution order in light of the fact that garnishment of her wages was no longer available. In an affidavit, Alexandroni averred that she was unemployed and that her only source of income was $730 per month in SSDI benefits. Alexandroni argued that under 42 USC 407(a), which provides an antiattachment provision for Social Security benefits, the SSDI benefits were exempt from attachment, garnishment, or other court-imposed obligation. 42 USC 407(a) provides:
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
Alexandroni argued that any attempt to enforce the restitution order would constitute “other legal process” under 42 USC 407(a), and that such attempt would be barred by the statute.
In an opinion and order dated April 27,2011, the trial court concluded that enforcing a restitution order under the juvenile code, MCL 712A.1 et seq., did not constitute “execution, levy, attachment, garnishment or other legal process.” The trial court concluded that it could consider Alexandroni’s SSDI benefits as “income” and enforce the restitution order against Alexandroni personally, through the power of contempt, after the income was in her possession. The trial court reasoned that to hold otherwise would have the effect of making Alexandroni exempt from making payments under the restitution order. The court therefore indicated that it would “consider the family’s income of $1275” and, noting that “circumstances have changed and the current order may need to be reassessed,” that it would schedule a new reimbursement hearing “to determine an equitable payment.” That order was not appealed.
On May 12, 2011, the trial court entered an order for reimbursement requiring Alexandroni to pay $150 per month beginning on June 1, 2011, and continuing until the balance was paid in full. That order also was not appealed.
In 2012, Alexandroni filed a motion for relief from judgment under MCR 2.612(C)(1)(d) and (f), seeking to modify or cancel the obligation to make restitution payments. In an opinion and order dated January 25, 2013, the trial court denied that motion, noting that “[t]he crux of this case boils down to whether the Court’s action in enforcing a restitution order subject to contempt is ‘other legal process’ ” under 42 USC 407(a). Citing Washington State Dep’t of Social & Health Servs v Guardianship Estate of Keffeler, 537 US 371; 123 S Ct 1017; 154 L Ed 2d 972 (2003), the trial court applied a narrow definition of the term “other legal process,” and observed that it had “not pursued garnishment or attachment like actions in enforcement.” Aside from applying a narrow definition of “other legal process,” the trial court stated a policy justification for its decision:
[T]he Court cannot reconcile the arguments with a common sense result. That is, how can a Social Security-Disability recipient (as opposed to a recipient of SSI, which is minimal and means tested) be exempt when often their income is greater than the working poor who are subject to enforcement. The guidelines promulgated by the collection statute for juvenile courts, MCL 712A.18(6), specifically mention Social Security Disability benefits as income that can be considered. Those guidelines also start collecting SOMETHING on incomes as low as $100 per week. To allow the exemption argued for would mean that no individual with any court obligation, no speeder, no drunk driver, no felon whose only income was Social Security Disability would ever have to pay restitution or court costs or fines of any nature. That result simply does not make sense. [Citation omitted.]
The trial court denied the motion to modify or cancel Alexandroni’s restitution obligation. Noting that Alexandroni had suffered a reduction in household income because of the fact that Lampart was then in placement, such that his SSDI benefits were being received by the state, the trial court indicated that it would “again review the monthly payment status at the next review hearing.” It is this order that is the subject of this appeal.
On appeal, Alexandroni requests that this Court “amendQ” the trial court’s April 27, 2011 order “to provide that the Social Security benefits of [Alexandroni and Lampart] are exempt,” and that the “obligation requiring payment of restitution be canceled” because Alexandroni’s sole source of income is her SSDI benefits.
II. ANALYSIS
Resolution of this issue involves an issue of statutory interpretation, which we review de novo. Edge v Edge, 299 Mich App 121, 127; 829 NW2d 276 (2012).
A. RESTITUTION STATUTE
Under the Michigan Constitution, crime victims are entitled to restitution. Const 1963, art 1, § 24. Under the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq., it is mandatory, not discretionary, for trial courts to order convicted defendants to “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction . . . People v Fawaz, 299 Mich App 55, 65; 829 NW2d 259 (2012), quoting MCL 780.766(2). The defendant’s ability to pay is irrelevant; only the victim’s actual losses from the criminal conduct are to be considered. Id. at 65; People v Crigler, 244 Mich App 420, 428; 625 NW2d 424 (2001) (“Since June 1, 1997, MCL 780.767; MSA 28.1287(767) no longer includes the defendant’s ability to pay among the factors to be considered when determining the amount of restitution.”).
Under the juvenile code, MCL 712A.1 et seq., restitution also is required, and many of its provisions are substantively identical to those of the CVBA. In re McEvoy, 267 Mich App at 63. “The juvenile code, MCL 712A.30, provides for restitution of a loss sustained by a victim of a juvenile offense[.]” Id. at 60. An order of restitution under the juvenile code is “a judgment and lien against all property of the individual ordered to pay restitution for the amount specified in the order of restitution.” MCL 712A.30(13). If a juvenile is or will be unable to pay a restitution order, “the court may order the parent or parents having supervisory responsibility for the juvenile ... to pay any portion of the restitution ordered that is outstanding.” MCL 712A.30(15). When ordering a parent to pay restitution, however, the trial court “shall take into account the financial resources of the parent and the burden that the payment of restitution will impose, with due regard to any other moral or legal financial obligations that the parent may have.” MCL 712A.30(16). Regarding enforcement, MCL 712A.30(13) provides that “[a]n order of restitution may be enforced by the prosecuting attorney, a victim, a victim’s estate, or any other person or entity named in the order to receive the restitution in the same manner as a judgment in a civil action or a lien.”
B. 42 USC 407(a)
Alexandroni contends that 42 USC 407(a) prohibits a state court from enforcing the restitution order against her because her sole income is her SSDI benefits. 42 USC 407(a) acts as an antiattachment statute for Social Security benefits, and provides:
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
The protection afforded to money received as Social Security benefits extends before and after the benefits are received. Philpott v Essex Co Welfare Bd, 409 US 413, 415-417; 93 S Ct 590; 34 L Ed 2d 608 (1973). See also State Treasurer v Abbott, 468 Mich 143, 155; 660 NW2d 714 (2003); Whitwood, Inc v South Blvd Prop Mgt Co, 265 Mich App 651, 654; 701 NW2d 747 (2005). The fact that the payments have been made does not make them lose their character as Social Security benefits or make them subject to legal process. To the contrary, the protections of 42 USC 407(a) apply, by their terms, to “moneys paid or payable” (emphasis added); the fact that benefits have been paid and may be on deposit in a recipient’s bank account does not shed them of that protection until they are in some way converted into some other kind of asset. Philpott, 409 US at 415-417. Thus, even after a recipient receives SSDI benefits and deposits them into a bank account, the SSDI benefits are still protected by 42 USC 407(a). Whitwood, 265 Mich App at 654. When a state court order attaches to Social Security benefits in contravention of 42 USC 407(a), the attachment amounts to a conflict with federal law, and such a conflict is one “that the State cannot win.” Bennett v Arkansas, 485 US 395, 397; 108 S Ct 1204; 99 L Ed 2d 455 (1988). Other jurisdictions have held that a state court cannot order restitution to be paid from a defendant’s Social Security benefits. See, e.g., State v Eaton, 323 Mont 287, 294; 2004 Mont 283; 99 P3d 661 (2004).
C. OTHER LEGAL PROCESS
In the case at bar, it appears undisputed that, at least as of the trial court’s April 27, 2011 order, Alexandroni’s only income came from her SSDI benefits. It is also undisputed that Alexandroni’s SSDI benefits were not subject to direct execution, levy, attachment, or garnishment, nor did the trial court employ any of those mechanisms. Rather, the issue is whether the trial court’s decision to consider Alexandroni’s SSDI benefits, after they were received, as income reachable through enforcement of the restitution order under the court’s powers of contempt, amounted to “other legal process” and thus violated 42 USC 407(a).
In Keffeler, 537 US at 382-386, the United States Supreme Court had occasion to interpret the phrase “other legal process” as it is used in 42 USC 407(a). Before doing so, the Court examined the terms “ ‘execution, levy, attachment, [and] garnishment,’ ” and explained that “[t]hese legal terms of art refer to formal procedures by which one person gains a degree of control over property otherwise subject to the control of another, and generally involve some form of judicial authorization.” Id. at 383. Noting that the term “other legal process” followed the use of those more specific terms, the Court concluded that 42 USC 407(a) uses the term “other legal process” restrictively. Id. at 384. The Court employed the interpretive canons of noscitur a sociis and ejusdem generis, under which when “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Id. at 384 (citations and quotation marks omitted). Thus, the Court concluded, the term “other legal process”
should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability. [Id. at 385.]
The Court explained that its definition was consistent with definitions of “other legal process” that were contained in the Social Security Administrator’s Program Operations Manual System (POMS). Id. One such definition explained “other legal process” as “ ‘the means by which a court (or agency or official authorized by law) compels compliance with its demand; generally, it is a court order.’ ” Id., quoting POMS GN 02410.001 (2002). Elsewhere, the POMS defined “other legal process” as “ ‘any writ, order, summons or other similar process in the nature of garnishment.’ ” Id.
In applying Keffeler, it is important to note the particular circumstances that were presented in that case. Specifically, Washington’s Department of Social and Health Services provided foster care for children who were in need of such care, some of whom were recipients of Social Security benefits. The department was the “representative payee” for those children and, as such, the department directly received the children’s Social Security benefits. The suit alleged that the department’s use of those benefits to reimburse itself for the costs of foster care violated 42 USC § 407(a).
After defining the term “other legal process,” the Supreme Court rejected the notion that the department’s “efforts to become [the children’s] representative payee and its use of [their] benefits in that capacity” fit within the definition. Id. at 386. Rather, “the department’s reimbursement scheme operates on funds already in the department’s possession and control, held on terms that allow the reimbursement.” Id.
It is significant that the alleged “legal process” in Keffeler involved no resort whatsoever to the judicial process. For that reason, the Court contrasted the situation before it with one where there was “utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability.” Id. at 385. As the Supreme Court ruled, “other legal process” (1) requires the use of some judicial or quasi-judicial mechanism, (2) by which control over property passes from one person to another, (3) in order to discharge or secure discharge of an existing or anticipated liability.
Unlike in Keffeler, we find that a judicial mechanism is being used here. Indisputably, resort is being made to the courts to secure payment. We further find that the judicial mechanism is being used to secure the discharge of an existing liability, i.e., restitution. The question, therefore, is whether it is being used to pass control over property from one person to another, in a manner that runs afoul of 42 USC 407(a).
We find that the reasoning of the trial court, if effectuated through its contempt powers so as to cause Alexandroni to satisfy her restitution obligations from her SSDI benefits, would be the use of a judicial mechanism to pass control over those benefits from one person to another. Thus, it would constitute “other legal process” that is prohibited under 42 USC 407(a). The process by which the trial court would enforce the restitution order would be the employment of its civil-contempt powers. Civil contempt is defined as “[t]he failure to obey a court order that was issued for another party’s benefit.” Black’s Law Dictionary (9th ed), ]3§30. “A civil-contempt proceeding is coercive or remedial in nature.” Id.
When used in this manner, the court’s use of its civil-contempt powers to enforce a restitution order would act as a process much like the processes of execution, levy, attachment, and garnishment, because in that context, the process would involve a formal procedure by which the restitution victim, through the trial court, would gain control over Alexandroni’s SSDI benefits. See Keffeler, 537 US at 383-385. Indeed, Keffeler noted that the POMS defined “legal process” as it was used in 42 USC 407(a) as “the means by which a court. . . compels compliance with its demand; generally, it is a court order.” Id. at 385 (citation and quotation marks omitted). In this case, the court’s demand was the restitution order, and the court would compel compliance with that demand through its civil-contempt powers. Consequently, if the trial court were in fact to use its contempt powers in a manner as would compel Alexandroni to satisfy her restitution obligations using her SSDI benefits, we would find that the process employed falls within the definition of “other legal process” as the term is used in 42 USC 407(a).
In this case, it appears undisputed that Alexandroni’s only source of income, at least as of the April 27, 2011 trial court order, was her SSDI benefits. The trial court clearly was aware of this, and nonetheless decided to consider her SSDI benefits as income for purposes of fashioning a restitution order subject to contempt. While we find no error merely in the trial court’s consideration of Alexandroni’s SSDI benefits as income, because 42 USC 407(a) does not directly proscribe such consideration, we hold that, to the extent the trial court’s consideration of those benefits results in an order of restitution that could only be satisfied from those benefits, the use of the court’s contempt powers then would violate 42 USC 407(a). As noted, the protection afforded to SSDI benefits extends after those benefits are received. Philpott, 409 US at 415-417; State Treasurer, 468 Mich at 155; Whitwood, 265 Mich App at 654. See also United States v Smith, 47 F3d 681, 684 (CA 4, 1995) (holding, under a federal statute employing similar language to 42 USC 407(a), that a court could not order restitution against benefits after they were received because “[t]he government should not be allowed to do indirectly what it cannot do directly[,]” meaning that it could not require the defendant “to turn over his benefits as they are paid to him”). As we explained in Whitwood, 265 Mich App at 654:
Plainly, pursuant to 42 USC 407(a), money received as social security benefits is not subject to execution or garnishment even after received and deposited by the recipient. Therefore, the trial court clearly erred when it found that the protection against garnishment ended when the social security proceeds were deposited into defendants’ account.
It appears to us that the trial court carefully avoided holding Alexandroni in contempt, yet came perilously close to using the threat of its contempt powers to compel Alexandroni to satisfy her restitution obligations from her SSDI benefits, which would violate 42 USC 407(a). On remand, the trial court should be careful to avoid any order that in fact would compel Alexandroni to satisfy her restitution obligation from the proceeds of her SSDI benefits. That said, the current record does not reflect whether Alexandroni possesses any assets, other than as generated by her SSDI benefit income, from which her restitution might be satisfied. Nor does the record reflect whether Alexandroni’s income remains solely her SSDI benefits, as her income and income sources conceivably could change over time. Those are matters that the trial court should explore on remand.
We note that it could be argued that, in imposing a civil contempt, a court does not touch a contemnor’s money directly, but rather imposes a personal sanction on the contemnor that will be lifted if the contemnor chooses to comply. In other words, civil contempt imposes a choice-, perhaps a choice in which neither alternative is appealing, but nonetheless a choice that the contemnor is in fact free to make. However, we find this argument not to be compelling when the circumstances are such that a contempt finding necessarily requires a contemnor to satisfy the legal obligation that is the subject of the contempt order by invading a monetary source that the court is not allowed to reach directly. In those circumstances, the contempt order would be the functional equivalent of an order directly reaching the funds, such that labeling the order as one of “contempt” rather than “garnishment” would exalt form over substance and ignore the reality of the circumstances. See In re Bradley Estate, 494 Mich 367, 387-388; 835 NW2d 545 (2013) (holding that the substance of an action labeled a civil-contempt indemnification action was a claim for tort liability despite its label).
Given that the trial court in this case has not yet held Alexandroni in contempt, has not made a determination with regard to whether she has any other assets (apart from any that are proceeds of her SSDI benefits) from which restitution may be satisfied, and has not made any recent determination of her income sources to ascertain whether any exist apart from her SSDI benefits, we decline to determine whether circumstances exist that might warrant a contempt order at this time. However, on remand, the trial court should follow our direction in this opinion, to appropriately (and perhaps periodically) ascertain Alexandroni’s assets and sources of income, perhaps through a contempt hearing, and to enter further orders as appropriate, while avoiding any directive, either explicit or otherwise, that will in fact cause Alexandroni to have to invade her SSDI benefits (or the proceeds thereof) to satisfy her continuing restitution obligation.
Finally, we note the differing approaches of other state and federal circuit courts regarding whether the mere threat of contempt (as arguably already exists in this case) itself amounts to “other legal process” under 42 USC 407(a). For example, in Chambliss v Buckner, 804 F Supp 2d 1240, 1255-1256 (MD Ala, 2011), the United States District Court for the Middle District of Alabama determined that the plaintiff, Dexter A. Chambliss, from whom the Alabama Department of Human Resources sought child support payments, could not cite 42 USC 407(a) as a means to avoid a contempt hearing. In that case, Chambliss sought to avoid the hearing altogether and merely alleged, without providing support, that Social Security benefits were his only source of income. Id. Similarly, in Daniel-son v Evans, 201 Ariz 401, 412-413; 36 P3d 749 (Ariz App, 2001), the court held that a contempt order requiring the defendant, Donald Evans, to pay attorney fees to the plaintiff, Susan Danielson, did not violate 42 USC 407(a). Significantly, however, the court did not expressly require Evans to satisfy his obligations with his SSDI benefits. Id.
By contrast, the court in Becker Co Human Servs v Peppel, 493 NW2d 573, 575 (Minn App, 1992), concluded that “an implied or express threat of formal legal sanction constitutes a ‘legal process’ within the meaning of section 407(a).” The trial court in that case had issued a child support order based on “the only source of income available to [the mother]: her [Supplemental Security Income (SSI)] benefits of $407 per month,” and its order expressly stated that the mother “would be held in contempt if she failed to comply.” Id. at 574. Consequently, the appellate court held that the trial court’s “threat to hold [the mother] in contempt cer tainly qualifies as a legal process under section 407(a).” Id. at 575. See also Fetterusso v New York, 898 F2d 322, 328 (CA 2, 1990) (stating in dicta that “Congress intended the words ‘or other legal process’ to embrace not only the use of formal legal machinery but also resort to express or implied threats and sanctions”); First Nat’l Bank & Trust Co of Ada v Arles, 816 P2d 537, 541; 1991 Okla 78 (Okla, 1991) (“The contempt action was the procedure by which the court was attempting, through legal channels, to obtain jurisdiction over [the defendant] and force repayment of a . . . debt. As such, it is a ‘legal process’ forbidden by Section 407(a).”).
Although we find that a contempt order that would cause Alexandroni to satisfy her restitution obligations from her SSDI benefits would be the use of “other legal process” in contravention of 42 USC 407(a), we decline to conclude that the mere specter of a contempt hearing necessarily constitutes such “other legal process.” That is, although we recognize that there is some level of threat and coercion inherent in a prospective contempt proceeding itself, the specter of contempt also can serve the legitimate purpose of providing a mechanism by which an obligor’s assets and income can be determined. See Causley v LaFreniere, 78 Mich App 250, 251; 259 NW2d 445 (1977); Moneada v Moneada, 81 Mich App 26, 27-28; 264 NW2d 104 (1978). As noted in the current version of the POMS, Alexandroni is entitled at any contempt hearing to use 42 USC 407(a) “as a personal defense if ordered to pay . . . her payments to someone else, or if. . . her payments are ordered to be taken by legal process.” POMS GN 02410.001 (2014).
We also note that the trial court found, as a matter of policy, that SSDI benefits should be used to satisfy restitution or court-imposed fines because SSDI ben efits are not awarded on the basis of need. The trial court determined that SSDI benefits should not be exempt from satisfying costs or fines because, unlike a recipient of SSI benefits, an SSDI recipient’s benefits are not based on need, and may in certain instances be “greater than the working poor who are subject to enforcement.” The trial court correctly recognized that SSDI benefits, unlike SSI benefits, are not based on need. Mathews v Eldridge, 424 US 319, 340-341; 96 S Ct 893; 47 L Ed 2d 18 (1976). However, the trial court’s reasoning is flawed. 42 USC 407(a) represents a clear choice by Congress to exempt all Social Security benefits, whether from SSDI or SSI, from any legal process, save for a few enumerated exceptions not at issue in this case. See Bennett, 485 US at 398 (explaining that 42 USC 407(a) demonstrates Congress’s “clear intent.. . that Social Security benefits not be attachable”); Philpott, 409 US at 417 (explaining that 42 USC 407(a) acts as a “broad bar against the use of any legal process to reach all social security benefits”) (emphasis added). Accordingly, regardless of whether Alexandroni’s SSDI benefits were based on need, those benefits could not be used to satisfy court-ordered restitution.
Although the trial court questioned the “sense” of that result, policymaking, whether sensible or not, is the province of the legislative branch of government, not the judicial. See Devillers v Auto Club Ins Ass’n, 473 Mich 562, 581; 702 NW2d 539 (2005). Consequently, the “sense” of the policy, from a policymaking perspective, is not ours to judge.
If it were determined that Alexandroni’s only asset, or source of income, is and remains from SSDI benefits, 42 USC 407(a) prohibits the use of legal process— including by a finding of contempt — from reaching those benefits to satisfy the restitution order. See Philpott, 409 US at 417. If, however, Alexandroni is found to have income aside from her SSDI benefits, or other assets that are derived from other sources, that income or those assets could be used to satisfy the restitution award. The restitution order itself remains valid. Indeed, Alexandroni’s receipt of SSDI benefits does not immunize her from the restitution order; rather, it merely prohibits the trial court from using legal process to compel satisfaction of the restitution order from those benefits. Because it is possible that Alexandroni may have assets or may receive income from other sources in the future, we affirm the trial court’s refusal to cancel or modify Alexandroni’s restitution obligation.
The trial court’s contempt powers similarly remain a valid tool in enforcing the restitution order, and our decision today should not be read otherwise. Again, a contempt hearing can be an appropriate vehicle for determining income and assets from which the restitution order may properly be enforced. See Causley, 78 Mich App at 251; Moncada, 81 Mich App at 27-28. However, the trial court may not compel Alexandroni to satisfy her restitution obligation out of her SSDI benefits, by a contempt finding or other legal process, because Alexandroni is entitled to the protections of 42 use 407(a).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Beckering, P.J., concurred with Boonstra, J.
In re Lampart, unpublished order of the Court of Appeals, entered November 1, 2013 (Docket No. 315333).
Lampart received an additional $545 per month.
The trial court made a similar finding regarding Lampart’s Social Security benefits.
MCL 780.766 concerns restitution following conviction of a felony. MCL 780.794 is the similarly mandatory statute in the CVRA pertaining to juvenile adjudications.
18 USC 3613(a) provides:
The United States may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law. Notwithstanding any other Federal law (including section 207 of the Social Security Act), a judgment imposing a fine may be enforced against all property or rights to property of the person fined[.]
This provision also applies to the United States when it seeks enforcement of restitution orders. 18 USC 3613(f). Accordingly, although state courts may not enforce restitution orders or fines against an individual’s Social Security benefits, “[t]he United States may enforce” fines or restitution orders against an individual’s Social Security benefits. 18 USC 3613(a) and (f) (emphasis added).
When interpreting federal statutes, we may look to decisions from other jurisdictions for guidance. See Abela v Gen Motors Corp, 469 Mich 603, 606-607; 677 NW2d 325 (2004).
The Supreme Court in Keffeler made clear that its definition of “other legal process” was a product of statutory interpretation, which was merely “confirmed” by the “legal guidance” in the POMS. Keffeler, 537 US at 385. Obviously, revisions over time to the POMS do not alter the statute, or the Supreme Court’s interpretation of it in Keffeler. We note, in any event, that the current version of POMS GN 02410.200 (2006) (entitled “Garnishment”), which relates to a specific statutory exception for enforcing child support or alimony obligations, defines “legal process” for that purpose as “any writ, order, summons, or notice to withhold . . . or other similar process in the nature of garnishment.” Also, POMS GN 02410.001 (2014) (entitled “Assignment of Benefits”) applies generally to the statute’s sections that “prohibit the transfer of control over money to someone other than the beneficiary, recipient, or the representative payee.” Whereas that provision formerly defined “legal process” as quoted in Keffeler, 537 US at 385, the current version reflects no definition, but instead states generally that, apart from certain exceptions that are not applicable here, 42 USC 407(a) “proteet[s] payments as long as we can identify them as [Social Security benefits].” Id. The provision cites as an example “a situation in which [Social Security benefits] are the only direct deposit payments in the account,” and notes that a “beneficiary or recipient can use [42 USC 407(a)] as a personal defense if ordered to pay his or her payments to someone else, or if his or her payments are ordered to be taken by legal process.” Id.
As noted, the current version of the POMS does not expressly use this definition, hut it continues to describe 42 USC 407(a) as generally providing protection to Social Security benefits, and as allowing the recipient to use 42 USC 407(a) “as a personal defense if ordered to pay his or her payments to someone else, or if his or her payments are ordered to be taken by legal process.” POMS GN 02410.001 (2014).
A contempt hearing can he a proper mechanism for ascertaining a person’s assets or income for the purpose of satisfying a legal obligation. See, e.g., Causley v LaFreniere, 78 Mich App 250, 251; 259 NW2d 445 (1977) ; Moncada v Moncada, 81 Mich App 26, 27-28; 264 NW2d 104 (1978) .
Although 42 USC 407(a) does not itself distinguish between SSDI benefits and SSI benefits, the Becker Court stressed that SSI benefits (unlike SSDI benefits, as the trial court in this case correctly noted) are intended to protect indigent persons. Becker, 493 NW2d at 574. | [
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Saad, J.
Plaintiff appeals the trial court’s order that granted summary disposition to defendants. For the reasons stated below, we affirm.
I. NATURE OF THE CASE
This case is a claim for trademark infringement. As our Court recently explained in Janet Travis, Inc v Preka Holdings, LLC, Michigan law has offered protection of trademark rights for the benefit of
business owners, and the consuming public. Business owners, who invest significant amounts of money and effort to convince consumers to identify their marks with their products and services, needed a remedy against competitors who sought to free ride on this accumulated goodwill by copying or pirating already established marks. Consumers, who associated and expected a certain level of service and quality with certain marks, needed protection from imposters who copied or pirated already established marks to “pass off” their goods and services as those of the business associated with the marks. [Janet Travis, Inc v Preka Holdings, LLC, 306 Mich App 266, 267-268; 856 NW2d 206 (2014) (citation omitted).]
Trademark law, therefore, involves “the advancement of two distinct but related interests: the private right of the trademark holder to prevent others from using its mark to pass off the others’ goods or services as the trademark holders, and the public right to protection from this deceptive practice.” Travis, 306 Mich App at 268.
Because the right of a trademark holder to its trademark is a by-product of these two interests, trademark rights are a special kind of intellectual property in that the mark holder’s right to exclusive use of its mark is tempered by and dependent on the perceptions of the consuming public. For a mark to serve as a trademark and be entitled to legal protection, the consuming public must be able to use the mark to “distinguish a good as originating from a particular source.” If the consuming public is unable to use the mark to distinguish a good as originating from a particular source, the mark does not function as a trademark and is thus not entitled to legal protection. Trademark rights are thus inherently mutable because they are dependent on whether the consuming public is able to use the mark to distinguish a good or service as originating from a particular source.
Consumer perception of a mark can be shaped by many factors, including the actions of the mark holder. Normally, as in Travis, the mark holder realizes the valuable nature of its trademark and will thus make every effort to ensure that, in the minds of consumers, the mark remains associated with the mark holder’s products and services, and the mark holder’s products and services alone. But on occasion, as here, a mark holder, through its own actions or omissions, destroys the value of the trademark by severing the link in the mind of the consumer between the mark holder’s mark and the particular product or service. In other words, a mark holder’s actions can cause its mark to no longer function as a trademark, and thus not be entitled to legal protection.
One common way that a mark holder may engage in this mark-destroying process is “naked licensing,” or the practice of “allowing others to use [its] mark without exercising ‘reasonable control over the nature and quality of the goods, services, or business on which the [mark] is used by the licensee’.” If other businesses are using the mark holder’s mark, and operate independently and with little to no oversight from the mark holder, consumers will be unable to use the mark to distinguish goods and services bearing the mark as originating exclusively from the mark holder. In other words, a mark that is the subject of naked licensing can no longer function as a trademark and is accordingly not the proper subject of legal protection. In the parlance of trademark law, naked licensing destroys a mark’s “distinctiveness” and renders it “not valid” as a trademark.
Because this practice prevents consumers from being able to use the mark to identify goods and services as the products of a specific business, courts have refused to protect marks that are subject to naked licensing at common law, under Michigan law, and under federal law. Initially, both state and federal courts did so by holding that nakedly licensed marks were not valid trademarks and thus not properly protectable under trademark law. After revisions to the federal Lanham Act in 1988, however, most federal decisions now hold that nakedly licensed trademarks have been “abandoned,” while state courts continue to hold, under statutory and common law, that nakedly licensed trademarks are not valid.
This case requires us to make this doctrinal distinction between state and federal law. The Lanham Act explicitly states that naked licensing constitutes “abandonment” of a trademark, in that trademark holders who engage in naked licensing relinquish all rights to their mark. The Michigan trademark and service mark act (Trademark Act) does not state that naked licensing constitutes abandonment of a trademark and instead defines abandonment to mean mere nonuse, or implied nonuse, of the trademark. Accordingly, a mark holder that engages in naked licensing of its trademark “abandons” the trademark under the Lanham Act, but does not “abandon” the trademark under the Trade mark Act. Nevertheless, a mark holder that engages in naked licensing is not able to sustain a trademark-infringement claim under the Trademark Act or at common law because the naked licensing of a mark renders that mark not valid as a trademark.
Plaintiff is a mark holder that engaged in naked licensing of its mark, “Movie Mania,” for more than five years with multiple parties. It nonetheless sued defendants, who used the “Movie Mania” mark a decade after the first instance of plaintiffs naked licensing, for trademark infringement, under both the Lanham Act and the Trademark Act. The trial court granted defendants’ request for summary disposition on the theory that plaintiffs naked licensing constituted abandonment of the “Movie Mania” mark under both the Lanham Act and the Trademark Act.
We affirm this decision, but the trial court reached the right result for the wrong reasons. Naked licensing constitutes abandonment under the Lanham Act, but it does not constitute abandonment under the Trademark Act’s more narrow definition of that term. Even so, plaintiffs action for infringement fails because its naked licensing of “Movie Mania” has made the mark not valid, and defendants’ use of the mark does not make it liable for trademark infringement under the Trademark Act.
We therefore reject plaintiffs arguments on appeal and affirm the order of the trial court.
II. FACTS AND PROCEDURAL HISTORY
Plaintiff operated a video-rental business in metro Detroit, and began using the name “Movie Mania” in commerce in 1989. It subsequently registered the “Movie Mania” mark with the appropriate Michigan department in 1996. Thereafter, plaintiff acted as a promiscuous licensor and allowed various unaffiliated parties in the Detroit area to use the “Movie Mania” mark in conjunction with those parties’ video-rental businesses.
This lawsuit is the product of a series of such licensing transactions, which began in 1999. In that year, plaintiff sold one of its Movie Mania locations to another company, CLD, Inc, which sought to continue the store’s video-rental business. Plaintiff allowed CLD to continue to use the “Movie Mania” mark for $1 in annual royalties. Yet the licensing agreement placed almost no restrictions on the use of the mark, nor did it contain standards on advertising or store operations, or include any requirements related to the rental or sale of merchandise at the CLD-owned Movie Mania.
CLD sold its Movie Mania store to Adnan Samona in 2005. Samona contacted plaintiff and asked permission to continue use of the “Movie Mania” mark, which plaintiff granted. Plaintiff did not require Samona to sign a licensing agreement or pay any royalty fee in return for use of the mark. Nor did plaintiff object or contact Samona as he expanded his business in 2006 and 2007, purchasing another, unaffiliated video-rental store and changing its name to “Movie Mania.” Again, as in its dealings with CLD, plaintiff provided Samona with almost no restrictions on the use of the mark, nor did it set standards on advertising or store operations or outline requirements related to the rental or sale of merchandise at the Samona-owned Movie Mania.
In 2010, Samona closed his St. Clair Shores Movie Mania location and sold its business assets to defendants. As Samona had done in 2005 when he purchased CLD’s Movie Mania store, defendant Sandra A. Zielke contacted plaintiff to ask permission to continue use of the “Movie Mania” mark. One of plaintiffs officers told Zielke that defendants could not use the mark unless they paid a fee and signed a licensing agreement. Defendants did not acquiesce to plaintiffs request and opened a video-rental store bearing the “Movie Mania” mark one block away from Samona’s original location. In January 2011, plaintiff told defendants that “Movie Mania” was a registered Michigan service mark (actually, it was not — as noted, its registration expired in 2006 because plaintiff failed to renew the registration) and demanded that defendants cease and desist use of the mark. Plaintiff did not reregister the “Movie Mania” mark until an even later date, April 18, 2011, which further demonstrates that it places little value in its mark.
Plaintiff then initiated this action against defendants in the Macomb Circuit Court and alleged, among other things, (1) trademark infringement under the common law, the Trademark Act, and the Lanham Act and (2) trademark dilution under the Lanham Act. After discovery, defendants moved for summary disposition under MCR 2.116(C)(10) because plaintiff had abandoned the “Movie Mania” mark when it (1) failed to renew the mark in 2006, (2) allowed other parties to use the mark without supervision, fees, or standards, and (3) generally failed to protect the mark as a source identifier.
The trial court granted defendants’ motion for summary disposition of plaintiffs claims. In a written opinion, it found that plaintiffs trademark-infringement arguments (under the common law, Trademark Act, and the Lanham Act) were precluded because plaintiff engaged in naked licensing from 1999 to 2005 and thus abandoned the mark before defendants used it. The trial court also rejected plaintiffs argument that defendants’ activities constituted trademark dilution under the Lanham Act because the “Movie Mania” mark was not a “famous” mark and thus not entitled to a trademark-dilution remedy.
Plaintiff makes three claims on appeal, two are under the Lanham Act (trademark infringement and trademark dilution) and one under the Trademark Act (trademark infringement). Defendants ask that we uphold the trial court’s grant of summary disposition with respect to these claims.
III. STANDARD OF REVIEW AND JURISDICTION
A trial court’s decision on a motion for summary disposition is reviewed de novo. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). When our Court reviews a motion for summaiy disposition brought under MCR 2.116(C)(10), it considers “affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in a light most favorable to the party opposing the motion.” Id. (citations and quotation marks omitted).
“Although the federal courts have jurisdiction over trademark claims brought under the Lanham Act, that jurisdiction is not exclusive. ... A party alleging a trademark violation under the statute may litigate in state court if it so chooses.” Bd of Regents of the Univ of Wisconsin Sys v Phoenix Int’l Software, Inc, 653 F3d 448, 465 (CA 7, 2011).
Statutory interpretation is a question of law that is reviewed de novo. Fradco, Inc v Dep’t of Treasury, 495 Mich 104, 112; 845 NW2d 81 (2014). When interpreting a statute, a court must “ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute. This requires courts to consider the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.” Id. (citations and quotation marks omitted). “The Trademark Act is based on the common law, and it is therefore appropriate, when interpreting the statute, to consider federal and state cases that apply the common law of trademark. It is also ‘appropriate to look to federal case law when interpreting a state statute which parallels its federal counterpart,’ as it appears the Michigan Trademark Act does the federal Lanham Act.” Travis, 306 Mich App at 275 (citations omitted).
IV ANALYSIS
A. FEDERAL CLAIMS UNDER THE LANHAM ACT
We note at the outset that plaintiff merely asserts trademark infringement and trademark dilution under the Lanham Act. It devotes almost the entirety of its brief to naked licensing and abandonment under Michigan law — only one claim among the three it brings— and fails to discuss the relevant legal standards necessary to establish trademark infringement and trademark dilution under federal law. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues cursory treatment with little or no citation of supporting authority.” Houghton v Keller, 256 Mich App 336, 339; 662 NW2d 854 (2003) (citations omitted). Accordingly, plaintiff has abandoned its argument that the trial court erred when it granted summary disposition to defendants on these federal claims.
1. TRADEMARK DILUTION
In any event, plaintiffs federal claims, such as they are, lack merit. Its assertion of trademark dilution is particularly frivolous. 15 USC 1125(c)(1) states:
[T]he owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.
Therefore, only owners of a “famous mark” will prevail on a dilution claim. “[A] mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.” 15 USC 1125(c)(2)(A). In addition, “[flame for likelihood of confusion [claims][ ] and fame for dilution [claims] are distinct concepts, and dilution fame requires a more stringent showing.” Coach Seros, Inc v Triumph Learning LLC, 668 F3d 1356, 1373 (CA Fed, 2012), citing 4 McCarthy, Trademarks & Unfair Competition (4th ed) § 24:104, p 24-325 (March 20, 2014) (“The standard for the kind of ‘fame’ needed to trigger anti-dilution protection is more rigorous and demanding than the ‘fame’ which is sufficient for the classic likelihood of confusion test.”).
Needless to say, the “Movie Mania” mark is not “famous” under 15 USC 1125(c)(1) and (2)(A) — it is not “widely recognized by the general consuming public of the United States.” Accordingly, the trial court correctly granted defendants summary disposition on plaintiffs trademark-dilution claim.
2. TRADEMARK INFRINGEMENT
Plaintiffs claim of trademark infringement under the Lanham Act is equally unavailing, because it abandoned the “Movie Mania” mark under 15 USC 1127 when it engaged in naked licensing.
a. NAKED LICENSING
As noted, naked licensing is the practice of “allowing others to use [a] mark without exercising ‘reasonable control over the nature and quality of the goods, services, or business on which the [mark] is used by the licensee’.” When other businesses use the mark that is the subject of naked licensing, consumers are unable to use the mark to distinguish goods and services bearing the mark as originating exclusively from the mark holder. Because naked licensing of a mark destroys the mark’s ability to serve as a source identifier for consumers — in other words, destroys the mark’s ability to function as a trademark — state courts held at common law that plaintiffs who engaged in naked licensing could not prevail in trademark-infringement actions against defendants who used the mark that the plaintiff nakedly licensed. In trademark-law terms, a mark that is the subject of naked licensing is not “distinctive” and therefore not a valid trademark that is properly protectable under trademark law.
After the passage of the Lanham Act opened the federal judiciary to trademark-law disputes in 1946, federal courts also recognized that naked licensing rendered marks not valid and made them unworthy of protection under the Lanham Act:
If the licensor is not compelled to take some reasonable steps to prevent misuses of his trademark in the hands of others the public will be deprived of its most effective protection against misleading uses of a trademark. The public is hardly in a position to uncover deceptive uses of a trademark before they occur and will be at best slow to detect them after they happen. Thus, unless the licensor exercises supervision and control over the operations of its licensees the risk that the public will be unwittingly deceived will be increased and this is precisely what the Act is in part designed to prevent. See Sen. Report No. 1333, 79th Cong., 2d Sess. (1946). Clearly the only effective way to protect the public where a trademark is used by licensees is to place on the licensor the affirmative duty of policing in a reasonable manner the activities of his licensees. [Dawn Donut Co, Inc v Hart’s Food Stores, Inc, 267 F2d 358, 367 (CA 2, 1959).]
This mode of analysis shifted in 1988, when Congress revised 15 USC 1127 and codified the concept of naked licensing in a specific context: abandonment. Under the Lanham Act’s revised definition of “abandoned,” a trademark holder who engages in “acts of omission as well as commission” that cause the trademark to “lose its significance as a mark” — i.e., naked licensing— abandons the mark and relinquishes all rights to it. 15 USC 1127.
Accordingly, most federal cases now analyze naked licensing through the framework of abandonment: i.e., a plaintiff engaged in naked licensing and has thus abandoned its mark under 15 USC 1127. However, this new analysis of naked licensing does not contradict the precodification approach, which analyzes naked licensing under the framework of the mark’s validity. In fact, labeling naked licensing as “abandonment” of a mark is simply another way of saying that naked licensing renders a trademark not valid. In each classi fication, the trademark holder’s conduct — uncontrolled licensing — causes the mark to lose its ability to function as a source identifier to consumers. See 3 McCarthy, Trademarks & Unfair Competition (4th ed), § 18:48. Stated another way, naked licensing causes the trademark to lose all significance as a trademark. Calling the mark “abandoned,” as 15 USC 1127 does, or focusing on the mark’s validity, as the earlier cases did, are thus two ways of describing the same concept, and both mandate the same result: a trademark holder that engages in naked licensing cannot prevail in a trademark-infringement suit against an alleged infringer using the mark that was nakedly licensed.
Plaintiffs who engage in naked licensing thus lose their rights to their mark in two ways. First, at common law, and under the Trademark Act and the Lanham Act, a mark that is nakedly licensed loses its ability to function as a source identifier for consumers and thus is no longer a valid trademark. Second, under the definition of “abandoned” in 15 USC 1127, a trademark holder that engages in naked licensing abandons its trademark and loses all rights to the use of the mark.
To analyze plaintiffs federal claim of trademark infringement under the Lanham Act, then, we turn to 15 USC 1127 and its definition of “abandoned.”
b. PLAINTIFF’S TRADEMARK INFRINGEMENT CLAIM
15 USC 1125(a)(1) allows mark holders to bring a civil action against “any person” that, among other things, confuses consumers or misrepresents the origins of the goods and services on offer. 15 USC 1127 also provides that marks can be abandoned by mark holders, and thus cease to be a mark for purposes of the Lanham Act:
A mark shall be deemed to be “abandoned” if either of the following occurs:
(1) When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment. “Use” of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark.
(2) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark. Purchaser motivation shall not be a test for determining abandonment under this paragraph.
To avoid abandonment, then, the trademark holder that licenses its mark to third parties must retain control of the mark — which might include supervision of the licensee’s operations, store layout, advertising, sales and merchandising, or other incidences of business. See Eva’s Bridal, 639 F3d at 790. This control is essential because “[trademarks [are] . . . indications of consistent and predictable quality assured through the trademark owner’s control over the use of the designation.” Restatement Unfair Competition, 3d, § 33, comment a, p 338. By retaining control over the licensee that uses its mark, the original trademark holder will ensure that the trademark remains able “to tell shoppers what to expect — and whom to blame if a given outlet falls short,” and thus retain its function as a source identifier for consumers. Eva’s Bridal, 639 F3d at 790.
Conversely, when a trademark holder relinquishes control over its mark and allows others to use the mark with little to no supervision, the trademark holder engages in naked licensing and the mark becomes abandoned under 15 USC 1127. Exxon Corp v Oxxford Clothes, Inc, 109 F3d 1070, 1075 (CA 5, 1997). Naked licensing “is an ‘[u]ncontrolled licensing of a mark whereby the licensee can place the mark on any quality or type of goods or services,’ raising ‘a grave danger that the public will be deceived by such a usage.’ ” Doeblers’ Pennsylvania Hybrids, Inc v Doebler, 442 F3d 812, 823 (CA 3, 2006), quoting an earlier version of McCarthy, Trademarks & Unfair Competition (alteration in the original). Stated another way, naked licensing also involves “allowing others to use the mark without exercising ‘reasonable control over the nature and quality of the goods, services, or business on which the [mark] is used by the licensee’.” Eva’s Bridal, 639 F3d at 789 (citation omitted) (alteration in original).
A mark holder that engages in naked licensing thus destroys its mark — it is no longer able to serve as a meaningful source identifier to consumers and accordingly loses its significance as a mark — and the protections afforded to actual marks under the Lanham Act. FreecycleSunnyvale v Freecycle Network, 626 F3d 509, 516 (CA 9, 2010) (holding that “naked licensing is inherently deceptive and constitutes abandonment of any rights to the trademark by the licensor”) (citation and quotation marks omitted); see also 3 McCarthy, Trademarks & Unfair Competition (4th ed), § 18:48.
Plaintiffs activity in this case is a textbook example of naked licensing. Its cavalier attitude toward use of the “Movie Mania” mark is reflected in its uncontrolled licensing of the mark to two business owners over a period of six years. In 1999, plaintiff entered into a licensing agreement with CLD and allowed CLD to use the “Movie Mania” mark in conjunction with its video-rental store. Yet plaintiff provided no standards for use of the mark, advertising, store operations, or any requirements related to the rental or sale of merchandise at the CLD-owned Movie Mania.
In 2005, plaintiff repeated these actions on a more audacious scale. After Adnan Samona purchased CLD, plaintiff allowed him use of the “Movie Mania” mark— and did not require him to sign a license agreement for that use, even as he expanded his business and used the “Movie Mania” mark at those new locations. And again, plaintiff placed almost no restrictions on Samona’s use of the mark, nor did it set standards for his business on advertising or store operations or outline requirements related to the rental or sale of merchandise at the Samona-owned Movie Mania. To repeat: by 2007 there were six Movie Mania stores operating in metro Detroit, and only two were owned by plaintiff. It is not possible that the “Movie Mania” mark served as an “indication[] of consistent and predictable quality” to consumers at this point — multiple businesses used the “Movie Mania” name, and had no uniform standard of control or quality among them. Restatement Unfair Competition, 3d, § 33, comment a, p 338; see also Eva’s Bridal, 639 F3d at 789.
Plaintiffs lax attitude toward its mark underwent a radical shift in 2010 when defendants expressed an interest in using “Movie Mania.” But plaintiffs sudden discovery of responsible-trademark-holder religion seems more like a conversion of convenience than a profession of genuine faith. And, in any event, plaintiffs actions by 2010 — namely, its failure to control the activities and standards of the other businesses to which it had licensed the “Movie Mania” mark — had already destroyed any function of source identification that the mark possessed. The mark is thus abandoned under 15 USC 1127, and plaintiff has lost its “trademark rights against the world.” Exxon, 109 F3d at 1075.
The trial court therefore correctly granted defendants summary disposition on plaintiffs claim of federal trademark infringement.
B. MICHIGAN TRADEMARK ACT
Plaintiff also appeals the trial court’s determination under Michigan’s Trademark Act that it “abandoned” the “Movie Mania” mark when it engaged in naked licensing. We agree that the trial court wrongly held that naked licensing of a mark constitutes abandonment of the mark under the Trademark Act. But the trial court’s ultimate ruling — that defendants are not liable for trademark infringement — is correct because, as noted, naked licensing of a mark destroys the mark’s validity and thus renders the mark not protectable as a trademark under Michigan law. We address each issue in turn.
1. ABANDONMENT
MCL 429.31(i) states that a mark is
“abandoned” when its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances. Nonuse for 2 consecutive years shall be prima facie abandonment.
At the time period relevant to this litigation, plaintiff continuously operated a video-rental business bearing the “Movie Mania” mark. It is therefore not possible that plaintiff “abandoned” the mark under the Trademark Act’s definition of that term because plaintiff never “discontinued” the mark’s use. For the purposes of abandonment under the Trademark Act, it is irrelevant that plaintiff engaged in naked licensing because the Trademark Act does not recognize that naked licensing constitutes abandonment. Accordingly, the trial court improperly held that naked licensing of a mark constitutes abandonment of the mark under the Trademark Act.
2. TRADEMARK INFRINGEMENT
Plaintiffs underlying Trademark Act claim, however, is trademark infringement. A plaintiff that claims trademark infringement under MCL 429.42 must show that
(1) the mark the plaintiff claims to hold is valid, in that it actually functions as a trademark, (2) the plaintiff holds priority in the mark, i.e., the plaintiff used the mark before the defendant, (3) consumers are likely to confuse the defendant’s mark with the plaintiffs mark and (4) the defendant used the allegedly infringing mark. [Travis, 306 Mich App at 277-278 (citations omitted).]
If the plaintiffs mark is registered with the state, “the registration is prima facie evidence that the plaintiffs mark is valid, and the burden of production shifts to the defendant to demonstrate that the mark is not valid.” Id. at 278. Under the Trademark Act and at common law, trademarks are valid when they are “(1) used in connection with the sale and advertising of products or services, and (2) distinctive, in that consumers understand the mark to designate goods or services as the ‘product of a particular manufacturer or trader.’ ” Id. at 279, quoting Shakespeare Co v Lippman’s Tool Shop Sporting Goods Co, 334 Mich 109, 113; 54 NW2d 268 (1952). Stated another way, to be “distinctive” and thus be a valid trademark, the trademark must serve as a “source identifier to consumers.” Travis, 306 Mich App at 279, citing Wal-Mart Stores, Inc v Samara Bros, Inc, 529 US 205, 212; 120 S Ct 1339; 146 L Ed 2d 182 (2000).
There is no dispute that plaintiff “used” the mark “in connection with the sale and advertising” aspects of a video-rental business. However, defendants have offered convincing evidence — plaintiffs naked licensing of the “Movie Mania” mark — that “Movie Mania” is not “distinctive” and thus not valid.
Normally, the inquiry into whether a mark is distinctive focuses on the “now-classic test” developed by Judge Friendly in Abercrombie & Fitch Co v Hunting World, Inc that sorts marks into four categories— generic, descriptive, suggestive, and arbitrary or fanciful — to determine whether they distinguish a good as coming from a particular source. Travis, 306 Mich App at 280. But here, plaintiffs conduct makes this analysis unnecessary, because its naked licensing of the “Movie Mania” mark to other video-rental business operators has destroyed whatever distinctiveness “Movie Mania” possessed. The mark is thus not valid and is not entitled to protection under the Trademark Act. As noted in Part IV(A)(2)(a) of this opinion, plaintiffs who engage in naked licensing have never prevailed in a trademark-infringement suit under the common law or the Trademark Act against a defendant who uses the nakedly licensed mark for precisely this reason.
Again, when plaintiff licensed the “Movie Mania” mark to CLD in 1999 and Samona in 2005, it placed almost no restrictions on the use of the mark, nor did it make provisions for advertising, store operations, or specify any requirements related to the rental or sale of merchandise at the CLD-owned and Samona-owned Movie Manias. Because plaintiffs licensing arrangements placed little to no control or restrictions on the business operations of its licensees, it was impossible for consumers to use the “Movie Mania” mark to distinguish the videos and other merchandise on offer as coming from a particular source. Travis, 306 Mich App at 280; Eva’s Bridal, 639 F3d at 790. Videos rented at Samona’s locations might have been of a completely different quality or type than those on hand at plaintiffs locations, and consumers had no ability, on the basis of the “Movie Mania” mark alone, to tell that the videos came from two separate providers. Accordingly, “Movie Mania” cannot be a valid mark because it is not distinctive, and therefore does not function as a trademark: the mark does not “tell shoppers what to expect— and whom to blame if a given outlet falls short.” Eva’s Bridal, 639 F3d at 790.
Plaintiff unskillfully, and wrongly, suggests that our adoption of defendants’ argument against naked licensing applies to all trademark holders who choose to license their trademarks to other parties. This confuses the general practice of licensing (which preserves the validity of a trademark) with plaintiff’s particular conduct (which destroys the validity of a trademark).
Trademark owners are of course permitted to license their trademarks and retain their trademark rights against infringers — but only if they are careful to ensure that their marks remain a source identifier to consumers. This is because, as noted, a trademark, to be valid, must, in the mind of the consuming public, designate goods or services as the product of a “particular manufacturer or trader.” Shakespeare Co, 334 Mich at 113. To ensure that a mark retains its source-identifying capacity, trademark holders that license their trademarks place strict restrictions on licensees— ranging from the physical appearance and layout of the licensees’ businesses, to what kind of merchandise a store can carry, to frequent inspections of the licensees’ physical premises and merchandise by the trademark holder.
Again, plaintiff does not show that it placed any of these restrictions on or exerted any sort of control over the business operations of its multiple licensees, who operated their Movie Mania stores almost entirely at their own discretion for more than a decade. It is thus impossible that the “Movie Mania” mark could have served to designate goods or services as the product of a particular manufacturer or trader to consumers in 2010 because, at that time, a series of completely different video-rental stores had long used that mark, each with its own set of quality standards and separate business practices. Plaintiff cannot suddenly decide to enforce its trademark rights against defendants when it has already destroyed whatever validity its “Movie Mania” trademark had through its own actions.
Because the “Movie Mania” mark is not distinctive, in that it does not function as a source identifier to consumers, it is not a valid trademark. It is therefore unnecessary to discuss the other elements of trademark infringement under MCL 429.42. And though the trial court did not follow the above analysis in its holding on plaintiffs Trademark Act claim and incorrectly held that plaintiffs naked licensing constituted abandonment under the Trademark Act, it reached the correct result when it rejected plaintiffs arguments under the statute and granted defendants summary disposition.
V CONCLUSION
Accordingly, we reject plaintiffs claims under both the Lanham Act and the Michigan Trademark Act and affirm the trial court’s grant of summary disposition to defendants under MCR 2.116(C)(10).
Affirmed.
Meter, P.J., and Cavanagh, J., concurred with Saad, J.
Travis, 306 Mich App at 281, citing MCL 429.32(e).
Eva’s Bridal Ltd v Halanick Enterprises, Inc, 639 F3d 788, 789 (CA 7, 2011) (Easterbrook, C.J.) (citation omitted) (second alteration in original).
“Not valid” is a term of art in trademark law that refers to a trademark’s lack of “validity.” A “valid” trademark is one that is properly the subject of trademark law- — i.e., is protectable under trademark law. See Abercrombie & Fitch Co v Hunting World, Inc, 537 F2d 4, 9 (CA 2, 1976) (Friendly, J.). In this opinion, we use the terms “not valid” and “invalid” interchangeably to refer to a mark’s lack of validity.
15 USC 1051 et seq.
15 USC 1127.
MCL 429.31 et seq.
MCL 429.31G) states that “a mark is ‘abandoned’ when its use has been discontinued with intent not to resume.”
Plaintiffs lack of proprietary regard for the mark extended to its registration, which expired in 2006. See MCL 429.38(a) (providing that registered marks that are more than 10 years old and not renewed are canceled from the register). Nonetheless, the licensed (and unlicensed) use of the “Movie Mania” mark continued unabated: by the end of Samona’s expansion in 2007, six stores bearing the mark operated in metro Detroit. Plaintiff owned only two of the locations.
The trial court did not specifically identify the appropriate summary disposition subrule, but it is apparent that it is MCR 2.116(0(10), as the trial court’s consideration went beyond the parties’ pleadings. Healing Place v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d 174 (2007).
“In Michigan, there are three sources of trademark law: common law, the state Trademark Act, and the federal Lanham Act. A plaintiff may bring separate trademark-related claims under each body of law.” Travis, 306 Mich App at 276.
“Likelihood of confusion” refers to an element plaintiffs must show to demonstrate trademark infringement (not trademark dilution, which is a wholly separate claim) under the Lanham Act, the Trademark Act, or the common law. See Travis, 306 Mich App at 275-276. Consumer perception and recognition of a mark are a necessary component of the likelihood-of-confusion analysis. The statement in Coach makes clear that the standard of consumer mark recognition required for a trademark-dilution claim is much more stringent — meaning truly na tional, widespread recognition — than that required for a likelihood-of-confusion analysis in a trademark-infringement claim.
Eva’s Bridal, 639 F3d at 789 (citation omitted) (second alteration in original).
See, for example, Detroit Creamery Co v Velvet Brand Ice Cream Co, 187 Mich 312, 316; 153 NW 664 (1915) (“It has been universally held that a trade-mark, as such cannot be assigned separately and distinct from the property to which it has been attached, and likewise the rule has been laid down that a naked license to use a trade-mark is of no more validity than an assignment thereof.”); Broeg v Duchaine, 319 Mass 711, 713; 67 NE2d 466 (1946) (holding under common law of trademark that “[o]ne who has developed a trade mark as a guaranty of the quality of his merchandise should not he permitted to license its use apart from his business to those who may sell an inferior product”); 3 McCarthy, Trademarks & Unfair Competition (4th ed), § 18:48.
See, for example, 884 Stores, Inc v Martinez, 227 Or 147, 160; 361 P2d 809 (1961) (“In the absence of [licensor control over licensees], the goods or services are not treated as emanating from a common source, an essential element of a common law trademark or trade name.”); Alexander Ave Kosher Restaurant Corp v Dragoon, 306 AD2d 298, 300; 762 NYS2d 101 (2003) (“[A] licensor must have some quality control of the goods produced by the licensee.”); 3 McCarthy, Trademarks & Unfair Competition (4th ed), § 18:48.
See, for example, Eva’s Bridal, 639 F3d at 789; Exxon Corp v Oxxford Clothes, Inc, 109 F3d 1070, 1075 (CA 5, 1997); Doeblers’ Pennsylvania Hybrids, Inc v Doebler, 442 F3d 812, 823 (CA 3, 2006); FreecycleSunnyvale v Freecyele Network, 626 F3d 509, 515-516 (CA 9, 2010).
As noted, “The Trademark Act is based on the common law, and it is therefore appropriate, when interpreting the statute, to consider federal and state cases that apply the common law of trademark.” Travis, 306 Mich App at 275, citing MCL 429.44. Furthermore, “[i]t is also ‘appropriate to look to federal case law when interpreting a state statute which parallels its federal counterpart,’ as it appears the Michigan Trademark Act does the federal Lanham Act.” Travis, 306 Mich App at 275 (citations omitted). Accordingly, a mark holder that engages in naked licensing of the mark renders it not valid under the Trademark Act — -just as the same conduct would render the mark not valid under the common law and the Lanham Act.
Wal-Mart, 529 US at 210.
Abercrombie & Fitch, 537 F2d at 9.
" ‘[Trademark] licensing is permissible provided the licensor retains some degree of control over the quality of the goods or services market thereunder.’ ” Vaad L’Hafotzas Sichos, Inc v Kehot Publication Society, 935 F Supp 2d 595, 601 (ED NY, 2013) (citation omitted) (alteration in original). See also Restatement Unfair Competition, 3d, § 33, comments b and c, pp 339-342; 3 McCarthy, Trademarks & Unfair Competition (4th ed), § 18:42.
Kentucky Fried Chicken Corp v Diversified Packaging Corp, 549 F2d 368, 387 (CA 5, 1977) (“Courts have long imposed upon trademark licensors a duty to oversee the quality of licensees’ products.”); Gen Motors Corp v Gibson Chem & Oil Corp, 786 F2d 105, 110 (CA 2, 1986) (“The critical question in determining whether a licensing program is controlled sufficiently by the licensor to protect his mark is whether the licensees’ operations are policed adequately to guarantee the quality of the products sold under the mark.”); Eva’s Bridal, 639 F3d at 790 (“The sort of supervision required for a trademark license is the sort that produces consistent quality.”).
“A trial court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong reason.” Travelers Prop Cas Co of America v Peaker Servs, Inc, 306 Mich App 178, 201; 855 NW2d 523 (2014) (citation and quotation marks omitted). | [
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Per Curiam.
Fetitioner, the mayor of the city of Cadillac, appeals by leave granted the trial court’s ruling that it would hear and decide the mayor’s petition for removal of respondent as a civil service commissioner under 1935 PA 78, MCL 38.501 et seq., by determining whether the mayor proved the allegations in his removal petition by the preponderance of the evidence. The mayor argues that the trial court’s ruling provides for review de novo of the mayor’s administrative decision, contrary to the review provided for in Const 1963, art 6, § 28, and would also violate the doctrine of the separation of powers, Const 1963, art 3, § 2. We affirm and remand for further proceedings.
During the city’s 2011 election cycle, the mayor was informed that respondent served on a political committee or was active in the management of the campaign of the mayor’s political opponent. Respondent had served for several years as an unpaid, appointed commissioner of the city’s Act 78 fire and police department civil service commission. The commission consists of three members, one appointed by the “principal elected officer of the city,” one selected by the paid members of the police and fire department, and one selected by the other two commissioners. MCL 38.502. The act prohibits any civil service commissioner from serving on “any political committee or [taking] any active part in the management of any political campaign.” MCL 38.503. Section 4 of the act provides that the mayor or principal executive officer of the pertinent city, village, or municipality “shall at any time remove any commissioner for incompetency, dereliction of duty, malfeasance in office or any other good cause ... MCL 38.504. The mayor or principal executive officer must initiate removal in a writing filed with the commission and served on the commissioner. But when the executive initiates removal, § 4 provides that “such removal shall be temporary only and shall be in effect for a period of 10 days.” Id. The commissioner is “deemed removed” if he or she does not respond within the 10 days. If, however, the commissioner answers the removal notice within 10 days, the statute provides:
[T]he mayor shall file in the office of the clerk of the circuit court of said county a petition setting forth in full the reason for said removal and praying for the confirmation by said circuit court of the action of the mayor in so removing the said commissioner. A copy of said petition, in writing, shall be served upon the commissioner so removed simultaneously with its filing in the office of the clerk of the circuit court and shall have precedence on the docket of the said court and shall be heard by said court as soon as the removed commissioner shall demand. [MCL 38.504.]
Petitioner complied with the initial removal requirements of MCL 38.504 by sending respondent written notice of his removal and by then petitioning the circuit court for confirmation of his removal decision after respondent promptly answered the notice. The circuit court held that it had original jurisdiction over the dispute under MCL 38.504 so that petitioner had to prove, by a preponderance of the evidence, the good cause for removing respondent from office that petitioner alleged in its removal petition. On appeal, petitioner argues that the court erroneously interpreted MCL 38.504 in a manner inconsistent with the judicial review of administrative decisions provided for in Const 1963, art 6, § 28. Petitioner also asserts that a circuit court’s review de novo of a mayor’s removal decision would violate the separation of powers doctrine, Const 1963, art 3, § 2. We hold that the circuit court correctly applied the plain terms of the statute and that this reading of the statute is not contrary to Michigan’s Constitution.
I. STANDARD OF REVIEW
This case presents questions of law regarding statutory interpretation and also the application of our state Constitution, which we review de novo. In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). “Statutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Id. When interpreting a statute, our primary goal is to “give effect to the intent of the Legislature.” Superior Hotels, LLC v Mackinaw Twp, 282 Mich App 621, 628; 765 NW2d 31 (2009). If the language of a statute is unambiguous, we presume the Legislature “intended the meaning expressed in the statute.” Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 76; 780 NW2d 753 (2010). A statutory provision is ambiguous only if it conflicts irreconcilably with another provision or it is equally susceptible to more than one meaning. Fluor Enterprises, Inc v Dep’t of Treas, 477 Mich 170, 177 n 3; 730 NW2d 722 (2007). A statute is not ambiguous merely because a term it contains is undefined or has multiple definitions in a dictionary, especially when the term is read in context. Cairns v East Lansing, 275 Mich App 102, 107; 738 NW2d 246 (2007). When construing a statute, we must assign every word or phrase its plain and ordinary meaning unless the Legislature has provided specific definitions or has used technical terms that have acquired a peculiar and appropriate meaning in the law. Superior Hotels, 282 Mich App at 629.
The primary goal of the judiciary when construing Michigan’s Constitution is to ascertain the purpose and intent of the provision at issue. Adair v Michigan, 486 Mich 468, 477; 785 NW2d 119 (2010). To do so, courts must apply the original meaning attributed to the words of a constitutional provision by its ratifiers, i.e., the most obvious commonly understood meaning the people would have assigned the words employed at the time of ratification. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). This is known as the rule of “common understanding.” Traverse City Sch Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). Under the rule of common understanding, we must apply the meaning that, at the time of ratification, was the most obvious to the common understanding, the one that reasonable minds and the great mass of the people themselves, would give it. In re Burnett Estate, 300 Mich App 489, 497; 834 NW2d 93 (2013). Thus, words should be given their common and most obvious meaning, and consideration of dictionary definitions used at the time of passage for undefined terms may be appropriate. Id. at 497-498. While historical records such as those concerning the debate that occurred at the constitutional convention are relevant, they are not controlling. Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d 452 (2003). Furthermore, all provisions must be read in light of the whole document and no provision should be read to nullify another. Id.
II. ANALYSIS
We hold the circuit court correctly read the plain terms of MCL 38.504 as placing the burden of proof on petitioner to establish good cause for removal by the preponderance of evidence at a hearing de novo. We also find that this reading of MCL 38.504 violates neither the provision for judicial review of final administrative decisions established in Const 1963, art 6, § 28, nor the constitutional doctrine of the separation of powers, Const 1963, art 3, § 2.
First, we examine the plain terms of the statute. Contrary to petitioner’s contention, the mayor’s administrative (or executive) decision to seek removal of respondent is, on the facts of this case, not final. Rather, the statute plainly provides that where, as here, respondent answers the mayor’s notice of removal within 10 days, the notice results in only a suspension of the commissioner during the removal proceedings. When the commissioner subject to removal timely answers the notice, the statute places the burden of going forward on the mayor, who must file “a petition setting forth in full the reason for said removal and praying for the confirmation by said circuit court of the action of the mayor in so removing the said commissioner.” MCL 38.504. If the mayor fails to file a petition for confirmation of the removal decision within 10 days after the commissioner’s answer, the “commissioner shall immediately resume his position as a member of the civil service commission.” Id. On the timely filing of the petition, “the commissioner so suspended shall remain suspended until a hearing is had upon the petition of the mayor.” Id.
Under the foregoing, MCL 38.504 clearly does not provide for circuit court review of a final administrative decision; rather, it provides a procedure for an original action by the mayor or other principal executive officer of a city, village, or municipality that has established an Act 78 fire and police department civil service commission for the removal of a commissioner that the executive believes to be incompetent or has committed malfeasance, or for which other good cause exists for removal. The statute in no way impinges on the administrative or executive determination in the first instance that good cause to remove a commissioner exists. Indeed, the mayor’s interpretation of the statute is entitled to respectful consideration, consonant with the principle of the separation of powers. In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 93, 103; 754 NW2d 259 (2008). But interpreting the law is a defining aspect of judicial power. Id. at 98. While an administrative agency in a contested case may engage in the “quasi-judicial” function of fact finding, id. at 99, deciding an existing case or controversy pending before the court is a quintessentially judicial function. See Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 738; 629 NW2d 900 (2001), quoting Daniels v People, 6 Mich 381, 388 (1859) (“ ‘By the judicial power of courts is generally understood the power to hear and determine controversies between adverse parties, and questions in litigation.’ ”) (emphasis omitted), and Risser v Hoyt, 53 Mich 185, 193; 18 NW 611 (1884) (“ ‘The judicial power referred to is the authority to hear and decide controversies, and to make binding orders and judgments respecting them.’ ”) (emphasis omitted); see also Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 360 n 6; 792 NW2d 686 (2010).
In this case, the clear and unambiguous terms of the statute must be enforced as written. Fluor Enterprises, 477 Mich at 174; Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). As discussed, under MCL 38.504, the mayor’s decision to initiate removal of a commissioner from office only works a temporary suspension; removal becomes final only after either (1) the commissioner fails to respond to the notice of removal after 10 days, or (2) the circuit court confirms the mayor’s removal decision. The statute further provides that after the mayor files a petition in the circuit court that states in “full the reason for . . . removal,” the court “shall hear and decide upon said petition.” Id. Indeed, the hearing is to be accorded precedence on the court’s docket and “and shall be heard by said court as soon as the removed commissioner shall demand.” The statute contemplates an evidentiary hearing at which the “contestant... shall have the right of appearing in person and by counsel and presenting his defense . . . .” Id. With respect to the circuit court’s decision on the removal petition, the statute provides the right “to petition the supreme court for a review ... as in chancery cases.” Id.
Thus, we conclude that the circuit court correctly held that it possessed original jurisdiction over the present dispute under MCL 38.504. While the exact nature of the hearing afforded by the statute is delineated, it is clear that petitioner could not, over respondent’s timely objection, unilaterally remove respondent from office. Because the mayor’s decision to seek removal of respondent as a civil service commissioner was not final until confirmed, after a circuit court hearing, the trial court correctly concluded that the removal proceeding is not controlled by Const 1963, art 6, § 28. That provision guarantees and provides a minimum standard for judicial review of “final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses . . . .” See Rental Prop Owners Ass’n v Grand Rapids, 455 Mich 246, 269; 566 NW2d 514 (1997). We agree with petitioner that where applicable, Const 1963, art 6, § 28 does not provide for or permit review de novo of final administrative decisions. See Viculin v Dep’t of Civil Serv, 386 Mich 375, 392; 192 NW2d 449 (1971) (“Art 6, § 28, neither guarantees nor permits de novo review of final decisions of the State Civil Service Commission. The scope of review is that stated by the constitution, ‘whether the same are supported by competent, material and substantial evidence on the whole record.’ ”). But the mayor’s notice of removal, and more particularly the petition for confirmation of removal, is not a final administrative decision; it is an original action. Consequently, Const 1963, art 6, § 28 does not control the circuit court proceedings under MCL 38.504.
Because the circuit court had original jurisdiction over this dispute, the court correctly determined that petitioner, who is the proponent of facts justifying removal, bore the burden of establishing the allegations supporting removal by a preponderance of the evidence, which is the default burden of proof in civil disputes. See Kar v Hogan, 399 Mich 529, 539; 251 NW2d 77 (1976) (“The party alleging a fact to be true should suffer the consequences of a failure to prove the truth of that allegation.”); Residential Ratepayer Consortium v Pub Serv Comm, 198 Mich App 144,149; 497 NW2d 558 (1993) (where the statute did not specify the standard of proof, the usual civil “ ‘preponderance of the evidence’ ” quantum of proof applied). After respondent answered petitioner’s removal notice, MCL 38.504 placed the burden on the mayor to petition the circuit court for confirmation of the mayor’s removal decision. The mayor must set forth his reasons “in full” for removal. The statute also permits respondent to appear in person and with counsel to present his defense to the mayor’s allegations. Further, the statute provides for a hearing in the circuit court by stating that the court “shall hear and decide upon said petition.” Thus, as the proponent of the allegations supporting removal, the burden of proof rested with the mayor. Kar, 399 Mich at 539; see also Baker v Costello, 300 Mich 686, 689; 2 NW2d 881 (1942), and Bunce v Secretary of State, 239 Mich App 204, 216; 607 NW2d 372 (1999). Further, because the statute does not state the quantum of proof necessary to obtain confirmation of removal, the default standard in civil cases, the preponderance of the evidence, applies. See Residential Ratepayer Consortium, 198 Mich App at 149; see also In re Moss, 301 Mich App 76, 84; 836 NW2d 182 (2013) (“in civil cases, the Legislature’s failure to spell out a standard of proof would usually require application of the preponderance of the evidence standard”).
Petitioner lastly argues that permitting review de novo of his decision to seek removal of respondent as a civil service commissioner violates the constitutional doctrine of the separation of powers. Const 1963, art 3, § 2. Petitioner contends that as the highest executive official of the city, he has sole discretion on how to operate the city, including whether to remove a civil service commissioner from office. The circuit court conducting a hearing on the executive’s removal decision, petitioner argues, intrudes on the domain of the executive contrary to the constitutionally mandated separation of powers. We disagree.
Our state Constitution expressly delineates three branches of government as follows:
The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [Const 1963, art 3, § 2.]
This state’s courts have long held that each branch of government must carefully balance their exercise of power so as not to intrude on the exclusive domain of the other branches.
Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. [Sutherland v Governor, 29 Mich 320, 324-325 (1874).]
But the separation of powers doctrine does not require so strict a separation that no overlap of responsibilities and powers of the various branches of government is permitted. Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 585; 640 NW2d 321 (2001). “ ‘If the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible.’ ” Id. (citation omitted).
In this case, as we have discussed already, the statute as correctly interpreted by the circuit court in no way impinges on the city executive’s decision to seek removal of a civil service commissioner. Further, the statute, as interpreted, poses no impediment to the mayor’s deciding in the first instance what constitutes “other good cause” for removal under the statute. Moreover, the statute merely requires that the circuit court perform a quintessentially judicial function of deciding an existing case or controversy pending before it. Lee, 464 Mich at 738. But, more fundamentally, there can be no encroachment by the circuit court on an executive or administrative function of a mayor contrary to Const 1963, art 3, § 2 because that constitutional provision applies only to state government and not local government. See Rental Prop Owners Ass’n, 455 Mich at 266-268; see also Hackel v Macomb Co Comm, 298 Mich App 311, 327; 826 NW2d 753 (2012).
We affirm and remand for further proceedings. We do not retain jurisdiction. Respondent appellee, as prevailing party, may tax costs pursuant to MCR 7.219.
Riordan, P.J., and Markey and K. F. Kelly, JJ., concurred.
This Court originally dismissed petitioner’s interlocutory application for leave to appeal for lack of jurisdiction. See Mayor of Cadillac v Blackburn, unpublished order of the Court of Appeals, entered October 29, 2012 (Docket No. 312803). Our Supreme Court decided otherwise in Mayor of the City of Cadillac v Blackburn, 493 Mich 889 (2012), holding that this Court “has jurisdiction over the petitioner’s application for leave to appeal pursuant to Const 1963, art 6, § 10, MCL 600.308(2)(e), and MCR 7.203(B)(1).” The Supreme Court also granted a stay of the proceedings in the circuit court pending this appeal. Blackburn, 493 Mich 889. This Court subsequently granted leave to appeal. Mayor of Cadillac v Blackburn, unpublished order of the Court of Appeals, entered December 17, 2012 (Docket No. 312803). | [
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Per Curiam.
Appellants appeal by leave granted the circuit court’s order affirming the decision of the Department of Environmental Quality (DEQ) to grant a mining permit to the Kennecott Eagle Minerals Company. We affirm.
I. FACTS
This case reflects the attempt to balance the potentially conflicting imperatives of exploiting a great economic opportunity and protecting the environment, natural resources, and public health. At issue is appellee Kennecott’s proposal to develop an underground mine to extract nickel and copper from the sulfide ores beneath the headwaters of the Salmon Trout River in the Yellow Dog Plains in Marquette County.
Governing such activities is 2004 PA 449, which added Part 632, MCL 324.63201 to MCL 324.63223, to the Natural Resources and Environmental Protection Act, MCL 324.101 et seq. MCL 324.63205(1) states: “A person shall not engage in the mining of nonferrous metallic minerals except as authorized in a mining permit issued by the department.” A “nonferrous metallic mineral” is “any ore or material to be excavated from the natural deposits on or in the earth for its metallic content, but not primarily for its iron or iron mineral content, to be used for commercial or industrial purposes.” MCL 324.63201(j). The Legislature set forth certain findings on this subject in MCL 324.63202, including the following:
(c) Nonferrous metallic sulfide deposits are different from the iron oxide ore deposits currently being mined in Michigan in that the sulfide minerals may react, when exposed to air and water, to form acid rock drainage. If the mineral products and waste materials associated with nonferrous metallic sulfide mining operations are not properly managed and controlled, they can cause significant damage to the environment, impact human health, and degrade the quality of life of the impacted community.
(d) The special concerns surrounding nonferrous metallic mineral mining warrant additional regulatory measures beyond those applied to the current iron mining operations.
(e) Nonferrous metallic mineral mining may be an important contributor to Michigan’s economic vitality. The economic benefits of nonferrous metallic mineral mining shall occur only under conditions that assure that the environment, natural resources, and public health and welfare are adequately protected.
In February 2006, Kennecott submitted applications to the DEQ for a nonferrous metallic mineral mining permit and a groundwater discharge permit. In January 2007, the DEQ consolidated the applications for public hearings, which were held in September 2007. In December 2007, the DEQ issued the mining and discharge permits to Kennecott.
Appellants requested contested case hearings on both permits. The DEQ’s administrative law judge (ALJ) held consolidated hearings over the spring and summer of 2008. In August 2009, the ALJ issued a proposal for decision, rejecting all challenges but crediting the concern of appellant Keweenaw Bay Indian Community that the proposed location for the mine’s portal, Eagle Rock, was a place of worship, and concluding that the permit application should therefore include a specific assessment in that regard.
The DEQ initially remanded the matter to the ALJ for additional findings on whether Eagle Rock was a place of worship, then vacated that order and referred that issue along with the rest of the case to its final decision-maker for a final determination and order.
The final decision-maker concluded that a stipulation prevented appellants from making the religious status of Eagle Rock an issue, and, alternatively, that Mich Admin Code, R 425.202(2)(p), which calls for assessment of mining impacts on “places of worship,” concerned only buildings used for human occupancy, not purely outdoor locations such as Eagle Rock. The final determination and order thus departed from the ALJ’s recommendations in that regard, but otherwise adopted the findings of fact and conclusions of law set forth in the proposal for decision, with minor additions, and granted the mining permit.
Appellants sought judicial review in the circuit court, which, in a lengthy and detailed opinion and order, affirmed the DEQ in all regards. This Court granted leave to appeal in an unpublished order entered August 7, 2012.
II. STANDARDS OF REVIEW
The circuit court’s task was to review the administrative decision to determine if it was authorized by law and supported by competent, material, and substantial evi dence on the whole record. Const 1963, art 6, § 28; MCL 24.306(1). An agency decision is not authorized by law if it violates constitutional or statutory provisions, lies beyond the agency’s jurisdiction, follows from unlawful procedures resulting in material prejudice, or is arbitrary and capricious. Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998).
“[W]hen reviewing a lower court’s review of agency action this Court must determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” Boyd v Civil Serv Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). “This latter standard is indistinguishable from the clearly erroneous standard .... [A] finding is clearly erroneous when, on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made.” Id. at 234-235.
A tribunal’s interpretation of a statute is subject to review de novo. In re Complaint ofRovas, 482 Mich 90, 102; 754 NW2d 259 (2008). A tribunal’s interpretation of an administrative rule is reviewed likewise. Aaronson v Lindsay & Hauer Int’l Ltd, 235 Mich App 259, 270; 597 NW2d 227 (1999). A tribunal’s evidentiary decisions are reviewed for an abuse of discretion. See Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337 (1993).
Unpreserved issues, however, are reviewed for plain error affecting substantial rights. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).
III. SCOPE OF CONTESTED CASE PROCEEDINGS
Appellants argue that the ALJ erred by allowing the introduction of new evidence in the contested case proceedings, or otherwise in treating the contested case as an extension of the original process of deciding the permit application. Appellants suggest that the original application proceedings leading up to the initial decision to issue the mining permit should be deemed a completed adjudication, with the contested case proceedings that followed then serving as the first stage of appellate review, which, for that reason, should have proceeded with a conservative approach to taking new evidence. We disagree.
As noted in our opinion affirming the circuit court’s rejection of this argument in connection with appellants’ objections to the DEQ’s decision to issue a groundwater discharge permit, Nat’l Wildlife Federation v Dep’t of Environmental Quality (No. 2), 306 Mich App 369; 856 NW2d 394 (2014) (Docket No. 308366), § 1701(1) of the Natural Resources and Environmental Protection Act, MCL 324.1701(1), authorizes the circuit court to grant “declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” Section 1704(2) adds that, when “administrative, licensing, or other proceedings are required or available to determine the legality of the defendant’s conduct, the court may direct the parties to seek relief in such proceedings.” Section 1704(4) states: “If judicial review of an administrative, licensing, or other proceeding is available, . . . the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.”
MCL 324.63205(2) through MCL 324.63205(15) set forth procedures for applying for a mining permit and for an initial agency decision on the application. MCL 324.63219(1) in turn authorizes a person aggrieved by agency action or inaction relating to a mining permit to file a petition for a contested case hearing. The statutes governing discharge permits set forth parallel provisions. See MCL 324.3103(1); MCL 324.3106; MCL 324. 3112(1) and (3).
As noted in the companion case, these statutory provisions collectively set forth avenues for the DEQ to arrive at a single final decision on a permit application. We decline to repeat here the full analysis from the companion case, but reiterate that MCL 324.1704 reserves appellate review to the circuit court that deferred to an administrative agency in the first instance and that the provisions for third parties to initiate contested cases, and generous provisions for submission of new evidence, better comport with original actions than with appellate proceedings. See also MCR 7.210(A) and MCR 7.216(A)(4) (restricting additions to the original record in appeals before this Court); MCL 24.275 and Mich Admin Code, R 324.64 (liberally providing for the presentation of evidence in contested cases).
For these reasons, we conclude that the DEQ and the circuit court correctly recognized the contested case proceeding below as an extension of the initial application process for purposes of arriving at a single final agency decision on the application for a mining permit.
IV BURDEN OF PROOF
Appellants argue that the DEQ erred by allocating the burden of proof to appellants to prove their objections in the contested case proceedings. We disagree.
MCL 324.63205(3) establishes that a person or entity seeking a mining permit under Part 632 bears the burden of proving that the mining project will satisfy applicable requirements, including that the project will proceed in ways minimizing adverse impacts on the environment:
The applicant has the burden of establishing that the terms and conditions set forth in the permit application; mining, reclamation, and environmental protection plan; and environmental impact assessment will result in a mining operation that reasonably minimizes actual or potential adverse impacts on air, water, or other natural resources and meets the requirements of this act.
MCL 324.63219(1) authorizes a person aggrieved by agency action or inaction relating to a mining permit to file a petition for a contested case hearing, and § 63219(2) directs that such contested case hearings be held in accordance with the Administrative Procedures Act. The latter authorizes administrative agencies to promulgate rules governing procedures for contested cases. MCL 24.233(3). Mich Admin Code, R 324.64(1), in turn, imposes on a party “filing an administrative complaint or petition for a contested case hearing. . . the burden of proof and of moving forward unless otherwise required by law.”
Appellants insist that the burden of proof set forth in MCL 324.63205(3) properly remained with Kennecott beyond the initial application proceedings and through its answering of appellants’ objections in the contested case proceedings. Appellants acknowledge Rule 324.64(1), but emphasize that it subordinates its allocation of the burden of proof where a different allocation is “required by law,” and argue that such deference to “other law” should have kept MCL 324.63205(3) applicable throughout the proceedings below.
But MCL 324.63205(3) does not set forth “other law” governing contested case proceedings under Part 632, because it sets forth the burden of proof for an “applicant,” meaning a party seeking a mining permit. Appellants assert that Kennecott remained an “applicant” through all the proceedings below, which is true in an important sense, given that, as discussed in Part III of this opinion, the contested case proceeding properly decided the question of Kennecott’s mining permit de novo, and so Kennecott always bore the burden of offering evidence with which the DEQ could decide if the requirements for a mining permit were satisfied. But if, in that sense, Kennecott retained the status of applicant throughout the proceedings, it nonetheless took on the status of responding intervenor in answering appellants’ objections. MCL 324.63205(3) governs applicants, not intervenors or respondents, and so does not constitute “other law” supplanting the allocation of the burden of proof in Rule 324.64(1) to those resorting to contested cases in hopes of vindicating objections to agency action or inaction.
Appellants also suggest that the DEQ failed to apply the proper statutory evidentiary standard in reviewing Kennecott’s permit application in the first instance, asserting that the DEQ official who headed the review team in this matter testified that his team did not apply MCL 324.63205 in reviewing the permit application, and that the ALJ called on appellants to submit conclusive evidence that the mining operation would, in fact, pollute, impair, or destroy natural resources.
However, checking the page of the record appellants cited to support their assertion concerning how the ALJ approached the case brought to light only one of the many instances where the ALJ held appellants to the burden of proving their objections, consistent with the substantive commands of Rule 324.64(1). The discus sion at the page cited related to the contested case proceeding, and thus sheds no light on what burden Kennecott was held to in initially satisfying the DEQ that it was entitled to the mining permit.
Appellants draw their argument about how the DEQ’s team leader testified from the following exchange that occurred when that witness was cross-examined:
Q. Subsection (11)[ ] lays out the terms under which your department could grant a permit; right?
A. Correct.
Q. And could you just read that language for the record? . . . Subsection (b) would be okay, I think.
A. Okay.
“Subject to subsection (10), the department shall approve a mining permit if it determines both of the following: The permit application meets the requirements of this part. The proposed mining operation will not pollute, impair or destroy the air, water or other natural resources or the public trust in those resources in accordance with Part 17 of this act.[ ] In making this determination, the department shall take into account the extent to which other permit determinations afford protection to natural resources. For the purposes of this subsection, excavation and removal of nonferrous metallic minerals and of associated overburden and waste rock in and of itself does not constitute pollution, impairment or destruction of those natural resources.”
Q. Now, subsection (12) indicates that, if the conditions in subsection (11), which you just read, are not met, the department shall deny the permit; right?
A. That is correct.
Q. Now, given the section we just read before this about the burden of proof being on the applicant, would you agree with me that the burden of proof is on the applicant to prove that they will not pollute, impair or destroy the air, water or other natural resources of the public trust and those resources in accordance with Part 17, which is the Michigan Environmental Protection Act, for the record?
A. The applicant does have the burden under this section, yes.
Q. Okay. The burden that they will not pollute; right?
A. ... I’m not familiar with Part 17 .... I’m not sure of the contents of that.
Q. Okay. But they have the burden of proving that they will not pollute natural resources; right?
A. .. . [I]t says that subsection (10) — “The department shall approve a mining permit if it determines both of the following.” But you’re right. They have to provide us the information that we would be able to use to make that determination.
Q. So the applicant has the burden of proving that they will not pollute air, water or other natural resources; right?
A. Well, I don’t understand that. I’m not sure what your question—
Q. I’m just asking do you agree with me about that— that that’s what the language here says?
A. It does not say that, because it doesn’t say anything about the applicant having the burden of proof there.
Q. But we just read that.
A. We read that in the previous section.
Q. Right. But we could go back and look at it if you want to. .. . I’ll just read.
“The applicant has the burden of establishing that the terms and conditions set forth in the permit application, mining, reclamation and environmental protection plan and environmental assessment will result in a mining operation that reasonably minimizes actual or potential adverse impacts on air, water and other natural resources and meets the requirements of this act.”[ ]
Right?
A. Correct.
Q. So all of these requirements — for the whole Part 632 and its rules, the applicant has the burden; right?
A. I’m not sure.
Counsel for Kennecott then objected that this question had been asked and answered. The ALJ opined that “he’s done the best he can in answering it,” but counsel for the National Wildlife Federation and the Yellow Dog Watershed Preserve, Inc., continued:
Q. [W]hat standard did you apply in guiding your team’s review of the application and ultimately making a recommendation that the application be approved and a permit be granted? What was the standard you used?
A. We referred to the rule package and under the rules identified the sections that were required to be submitted by the applicant and did those indeed meet the requirements of the rules. And there’s many rules that are there.
Q. There are. Did you apply this section of the statute to your analysis?
A. I did not, no.
Q. Did the mining team apply this section of the statute to its analysis?
A. I don’t believe so, no.
Although counsel did finally succeed in obtaining the witness’s agreement that his review team did not apply the statutory standard, presumably still referring to MCL 324.63205(3) and its placing of the burden on the applicant to show that a mining project will reasonably minimize adverse impacts on natural resources and otherwise comply with environmental laws, the witness stated earlier that the applicant bore the burden of showing such compliance. That witness’s inability to engage in a discourse on the environmental protection act, as incorporated by reference within Part 632, shows only that the review team considered the myriad factors involved in deciding a permit application as being guided by a “package” of “many rules” instead of by general statutory provisions. The cross-examination set forth above did not include detailing or exploring those “many rules,” let alone attempting to expose them as failing to operate in furtherance of the applicable statutory imperatives.
For these reasons, we conclude that the testimony that appellants here take issue with did not imply that the DEQ failed to hold Kennecott to its initial burden of proof concerning mitigating environmental damage or otherwise complying with applicable law.
V HYDRAULIC AND STRUCTURAL STABILITY
Appellants argue that the overwhelming weight of the evidence established that the mine is at substantial risk of hydraulic or structural failure if constructed and operated as planned. Appellants express concerns that the crown pillar — the undisturbed rock mass that is left between the active mine workings and the surface, in other words the “roof” of the mine — may collapse and that water from the overhead Salmon Trout River or wetlands could flood the mine and cause acid rock drainage on a large scale. The circuit court was satisfied that substantial evidence supported the DEQ’s conclusion that the mine would be structurally sound. We agree with the circuit court.
Appellants point out that the DEQ’s review team for this project resorted to outside experts to supplement its expertise in rock mechanics and geochemistry to review the plans and assert that the experts so relied on adjudged the mine application as proposing a “ ‘sloppy’ and ‘indefensible’ ’’design. However, review of the complete opinions offered by those experts reveals that both were persuaded that the plans for the mine, as finally determined, would result in a structurally stable operation.
One of those experts, who was recognized without objection as an expert in the fields of mining engineering, geotechnical engineering, rock mechanics, and mine stability, recounted that he became involved in the instant project in 2007 and that initial concerns had included the stability of the crown pillar. But asked about a recommendation that mining operations be conducted initially to ensure a minimum thickness of 87V2 meters for the crown pillar, with careful monitoring thereafter, the expert opined that this “was a technically sound recommendation” and agreed that the mining permit should be approved. The other of those experts, whose credentials included having written a Ph.D. thesis on the analysis of crown-pillar stability, testified that the earlier envisioned crown pillar of 57V2 meters would be “marginally stable,” hut that one of 87 meters as eventually decided on “is definitely going to be stable.”
Appellants repeatedly assert that the latter witness contradicted himself in a communication offered the same day, and they separately contest an evidentiary decision that kept that contradiction out of the record. Appellants advise that this expert communicated through an e-mail to an official with Kennecott’s parent company that he retained serious concerns with even an 87½-meter crown pillar. However, the copy of this e-mail appellants wanted to enter into evidence was but one part of an offered deposition exhibit of over a thousand pages. Although the subject of that e-mail was touched upon during that expert’s deposition, there was no hint that that one part of the voluminous exhibit seemed to contradict his approval of the crown pillar as ultimately proposed. Further, that witness was available for neither cross-examination nor rehabilitation when appellants attempted to contest that potential impeachment evidence. For those reasons, the ALJ limited admission of that exhibit to documents actually discussed during the deposition. The circuit court affirmed that decision. We agree that, because appellants wished to resort to that impeachment evidence only after the opportunity to cross-examine the witness regarding it had passed, the ALJ’s decision to disallow it was not an abuse of discretion.
Appellants otherwise point to expert testimony that persisted in expressing concerns about the stability of the mine and argue that it should have held sway. But, again, the circuit court’s task was not to reevaluate the evidence, but rather to determine if substantial evidence supported the DEQ’s decisions. “ ‘Substantial evidence’ is evidence which a reasoning mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance.” Tomczik v State Tenure Comm, 175 Mich App 495, 499; 438 NW2d 642 (1989). Because the circuit court recognized that the opinions of the two experts discussed above approving of the crown pillar design as finally determined provided substantial evidence in support of the DEQ’s conclusion that agreed with them, we conclude that the circuit court did not misapprehend or misapply the pertinent standard of review.
VI. ENVIRONMENTAL IMPACT ASSESSMENT
MCL 324.63205(2) (b) requires that an application for a permit to engage in the mining of nonferrous metallic minerals include an environmental impact assessment (EIA) describing “the natural and humanmade features ... in the proposed mining area and the affected area that may be impacted by the mining, and the potential impacts on those features from the proposed mining operation,” and further directs that the EIA “define the affected area and. . . address feasible and prudent alternatives.”
A. POTENTIALLY AFFECTED AREA
Appellants argue that Kennecott’s EIA failed to consider potential impacts outside the immediate mining area. We agree with the DEQ and the circuit court that Kennecott satisfied the pertinent requirement by showing that there would be no such impacts.
“Affected area” is defined as “an area outside of the mining area where the land surface, surface water, groundwater, or air resources are determined through an environmental impact assessment to be potentially affected by mining operations within the proposed mining area.” MCL 324.63201(b). In this case, Kennecott’s EIA addressed environmental impacts of the mining project within the mining site only, insisting that there was no significant potential for impacts beyond the site and thus that its study needed to go no further. Appellants argue that Kennecott’s EIA thus failed to satisfy the requirement to take into account the whole area that mining operations might impact, including “area outside of the mining area.”
We note that the statutory command to consider impacts “outside of the mining area” where natural resources “are determined through an environmental impact assessment to be potentially affected by mining operations” on its face imposes the duty to consider area outside the immediate mining area only to the extent that “the land surface, surface water, groundwater, or air resources” of such area are determined to be vulnerable to the impacts of mining. The question, then, is whether there was substantial evidence to support the conclusion that the proposed mining project imposed no significant potential for such environmental impacts beyond its fences.
Not in dispute is that the experts offered conflicting opinions in these regards. The ALJ resolved them in favor of Kennecott, concluding that the record showed that there would be no adverse environmental effects outside the mine’s fence line from air deposition, water drawdown, habitat fragmentation, or noise, that Kennecott’s air emissions would meet air quality standards both on and off site, and that emissions would be at permissible levels and have no adverse impact on the area’s flora or fauna. The ALJ was thus satisfied that Kennecott fulfilled the requirements of Part 632 to address the “affected area” subject to mining impacts.
Appellants insist that the evidence militated in favor of recognizing significant environmental impacts outside the area covered by the EIA. However, again, weighing the evidence that way is not this Court’s, nor was it the circuit court’s, task, which was and is to review for substantial evidence.
The circuit court summarized in detail the testimony of the environmental engineer who prepared Kennecott’s air permit application, who stated that he intentionally overestimated the amount of air pollutants likely to be produced, but that even under those conditions the mine’s emissions would fall well within legal limits. The court additionally noted that an air quality specialist with the DEQ testified that the amount and concentration of every air pollutant or toxin that the mine would produce would be below the permitted maximum and that, even after 10 years of accumulation, the levels would be low enough that area streams and soil would meet Michigan’s drinking water and direct-contact criteria. According to this expert, although particulate deposition would occur over a wide area, it would be of no consequence because even the highest of such concentrations would be at insignificant levels. The court additionally noted that two toxicologists agreed that the maximum amount of emissions and concentrations, even as projected over the 10-year expected life of the mine, did not rise to the threshold of concentrations that would bring about adverse effects in plants, invertebrates, birds, or mammals. One of them further explained that the annual maximum deposition of the two heavy metals of greatest concern, copper and nickel, would constitute a fraction of the amount of those metals that was already found in the area’s soil. The other opined that the amount of heavy metals entering the area’s streams would be so small that it was unlikely that there would be any toxic plume in Lake Superior or any significant effect on the mouth of the Salmon Trout River.
The circuit court further noted that several of appellants’ own witnesses admitted that serious habitat fragmentation had already occurred in the area as the result of historical and ongoing logging and other activities, that there was no evidence that wildlife used the Yellow Dog Plains as a corridor between habitats, and that other areas within the vicinity of the mine provided the same habitats as those found within the mine footprint, and so wildlife displaced by the mine could readily relocate.
The court recounted that Kennecott’s expert opined that the decibel level of the blasting noise would start at something akin to that of a chainsaw at the portal but only register at the level of a spoken conversation at the property line, but that after approximately one week the noise from the blasts would register at the level of a spoken conversation at the mine portal itself and would be inaudible at the fence line. The court further noted that Kennecott would be shielding lights at the mine site, building berms around the outside of the surface facilities to dampen noise, and equipping the exhaust stacks with silencers.
The court continued that Kennecott planned to build no new roads, intended to control road dust by watering at regular intervals in accordance with the strict limits set forth in the mining permit, and planned to follow a fugitive dust plan. The court further noted that there was testimony to the effect that road use associated with the mine would not have a substantial impact on wildlife in the area because the road was already well used and regularly graded.
The court additionally summarized Kennecott’s blasting expert’s testimony as stating that various techniques would mitigate the vibrations of blasts in order to protect sensitive areas or structures, so that the particle velocity from blasting would be well below levels that could damage buildings. The court noted that the expert added that the blasting energy would be well below the level that would be harmful to the fish in the Salmon Trout River.
Appellants do not take issue with any of these representations concerning the evidence of record, but instead point to several examples of conflicting testimony that they insist should have held sway. But the DEQ was entitled to resolve such factual controversies on the basis of substantial evidence, and the circuit court’s summary obviously showed that there was more than a scintilla of the evidence supporting the conclusion that there was no significant potential for environmental impacts beyond the immediate mining area.
B. PLACE OF WORSHIP
Mich Admin Code, R 425.202(1)(a)(i) requires that an EIA include an “identification and description of the condition or feature as it currently exists within the mining area and the affected area.” Rule 425.202(2) states that the latter requirements “apply to natural and humanmade conditions and features including, but not limited to,” several listed items, among which Subrule (2)(p) specifies “ [residential dwellings, places of business, places of worship, schools, hospitals, government buildings, or other buildings used for human occupancy all or part of the year.”
At issue is the mining project’s impacts on Eagle Rock, which appellants describe in their brief on appeal as “an imposing jagged rock outcrop rising some 60 feet at its highest point, from the otherwise flat geography of the Yellow Dog Plain.” The testimony below included elaborate descriptions of traditional religious and other cultural uses of that location as a special gathering place, along with ancient names for it from the pertinent Native American languages.
Kennecott’s EIA considered Eagle Rock only as normal topography, its archeologist having reported nothing about that location to suggest that it was a place of any cultural significance. The Keweenaw Bay Indian Community intervened in this case over its concerns regarding the impacts of mining operations on the cultural traditions associated with Eagle Rock.
Appellees objected to further development of this issue below on the ground that appellants had stipulated to limit such advocacy to the issue of the Keweenaw Bay Indian Community’s standing to intervene. The ALJ, however, reached the issue on its merits and determined that further findings were in order. The DEQ’s final decision-maker, however, alternatively concluded that a stipulation kept the issue off the table and that “place of worship” for purposes of Rule 425.202(2)(p) referred to buildings for human occupancy, not purely outdoor locations. The circuit court in turn affirmed the DEQ on those alternative grounds.
We affirm on still other grounds. See Zimmerman v Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997) (stating that this Court will not reverse when the trial court reaches the correct result even for the wrong reason). Kennecott submitted its EIA in February 2006, and public hearings on the mining application were held in September of that year. In their brief on appeal, appellants advise that Kennecott and the DEQ “were informed of the significance of Eagle Rock during the Part 632 public comment period,” thus admitting that Kennecott had no knowledge of any such customs when it submitted its EIA. Appellants nowhere suggest that any investigation or inquiry on Kennecott’s part in the early stages of the proceedings was deficient, nor do they cite any authority for the proposition that a mining applicant is obliged to update its EIA throughout the whole review process to take account of newly acquired information. Accordingly, assuming without deciding that no stipulation prevented litigation of this issue and also that “places of worship” for purposes of Rule 425.202(2)(p) include such outdoor locations as Eagle Rock, we nonetheless hold that Kennecott’s EIA was not deficient for want of consideration of Eagle Rock as a place of worship, because it neither knew, nor should have known, of such traditional cultural uses of that location when it offered its EIA.
C. CUMULATIVE IMPACTS ANALYSIS
Mich Admin Code, R 425.202(1)(b) requires that an EIA provided with an application for a permit to mine nonferrous metallic minerals include an “analysis of the potential cumulative impacts on each of the conditions or features listed in [Rule 425.202(2)] within the mining area and the affected area from all proposed mining activities and through all processes or mechanisms,” and specifies that the analysis “consider additive effects, and the assessment of significant interactions between chemical and physical properties of any discharges, with reference to the physical and chemical characteristics of the environment into which the discharge may be released.” Rule 425.202(2) lists the many features and conditions to be considered. “Cumulative impact” is “the environmental impact that results from the proposed mining activities when added to other past, present, and reasonably foreseeable future activities.” Mich Admin Code, R 425.102(1)(h).
That the witnesses differed on how best to analyze cumulative impacts, and thus on whether Kennecott satisfied that requirement, is not at issue. The ALJ concluded that there was no generally accepted scientific protocol for evaluating cumulative impacts of this sort, that the only evidence in the record was that the best practice was to accumulate as much data about individual stressors as is practical and use that data to reach conclusions regarding overall potential impacts, and that because Kennecott followed that best practice its EIA included a cumulative-impacts analysis that satisfied the requirements of Part 632.
The circuit court in turn acknowledged that appellants presented witnesses who disapproved of how Kennecott endeavored to address cumulative impacts, but noted that a toxicologist had testified that the components that a cumulative impact analysis should include had in fact been addressed in Kennecott’s permit application and that another expert testified that the cumulative impact of multiple stressors was very difficult to measure, that there was no established protocol for evaluating the effect of multiple stressors, at least with regard to wildlife, and that Kennecott followed the standard method of assessing cumulative impacts in its EIA.
Appellants do not dispute the circuit court’s summary of the evidence but for questioning the relevance of, and otherwise discounting, the toxicologist’s opinion on the sufficiency of Kennecott’s approach to cumulative impacts.
We conclude that the circuit court correctly recognized that the expert testimony concerning the lack of protocols for analyzing cumulative impacts and indicating that Kennecott had followed best practices, constituted substantial evidence to support the DEQ’s determination that Kennecott had satisfied the requirement to consider cumulative impacts.
VII. RECLAMATION AND ENVIRONMENTAL PROTECTION PLAN
MCL 324.63205(2)(c)(v) requires that an application for a permit to mine nonferrous metallic minerals include a reclamation and environmental protection plan, which must in turn include “[provisions for the prevention, control, and monitoring of acid-forming waste products and other waste products from the mining process so as to prevent leaching into groundwater or runoff into surface water.” Mich Admin Code, R 425.203(c)(xxi) in turn requires that such plans include information depicting or describing “[p]lans and schedules for monitoring, containment, and treatment of surface runoff that has contacted, or may-contact, ore, waste rock, overburden, or tailings determined to be reactive,” and that such plans “be designed to reasonably minimize actual and potential adverse impacts on groundwater and surface water by preventing leaching or runoff of acid-forming waste products and other waste products from the mining process.”
MCL 324.63205(2)(c)(i) adds that such plans must include “[a] description of materials, methods, and techniques that will be utilized.” Subsection (2)(c)(ii) in turn calls for “[information that demonstrates that all methods, materials, and techniques proposed . .. are capable of accomplishing their stated objectives in protecting the environment and public health,” with the exception that “such information may not be required for methods, materials, and techniques that are widely used in mining or other industries and are generally accepted as effective.”
A. ACID ROCK DRAINAGE
Appellants argue that Kennecott failed to adequately address the prevention, control, and monitoring of acid-forming waste products to prevent runoff into surface waters. The circuit court dismissed that concern on the ground that appellants had failed to provide evidentiary support for their position. Appellants do not argue that they did in fact provide evidentiary support for their position, but instead suggest that this issue was self-preserving simply because, in their view, the mining application was facially deficient in addressing management of acid rock drainage and how to protect nearby watercourses from it. We disagree and conclude that the circuit court correctly recognized that appellants bore the burden of proof in the contested case proceedings (as discussed in Part IV of this opinion), and so forfeited any issue over which they failed to give expression to, and provide support for, any concerns they had.
Further, appellants argue this issue in purely substantive terms, articulating no challenge to the circuit court’s decision to deem it forfeited for lack of preservation. Because appellants do not challenge the procedural basis upon which the circuit court rejected its appellate arguments regarding the adequacy of Kennecott’s plans to minimize the hazards of acid rock drainage, we affirm the result below in this regard for that reason.
Alternatively, we conclude that there was substantial evidence to show that Kennecott’s reclamation and environmental protection plan well enough addressed that hazard.
The evidence showed that runoff from the facility or road surfaces could contain sulfide- or sulfur-bearing rock, which could turn to sulfuric acid, and that acid rock drainage may also occur from runoff from development rock, which is the material removed from the mine to reach the ore. An environmental chemist elaborated that a project of this sort involves “a lot of rock that has not experienced oxygen or water . . . very deep in the earth,” and that “as that rock is excavated ... it is exposed to oxygen and water,” triggering “reactions . . . that generate sulfuric acid.” The expert added that “the sulfuric acid then dissolves a variety of constituents,” potentially resulting in “water that’s .. . acidic and has a highly variable metal loading that can cause substantial impacts on receding waters.” The parties have consistently agreed that the hazard of acid rock drainage that this mining project poses demands careful management.
Kennecott’s application reported that development rock would initially be stored in a temporary storage area, then later returned to the mine as backfill. The permit itself confirms this plan. The development rock will be sheltered and neutralized with limestone, and runoff will be routed to lined basins, whose pumps are designed to handle even severe storms, and then processed through the wastewater treatment plant. A water resources engineer testified that the life of the instant mining project was projected at seven years, but that the wastewater treatment plant was designed to accommodate extremes of rainfall that might occur over a 100-year period, and combinations of snowmelt and rainfall that might occur over a 50-year period, characterizing those models as “prudent” and resulting in a “conservative” design.
The record thus contains more than a scintilla of evidence indicating that the mining plans include adequate safeguards to protect surface waters from acid rock drainage.
B. AIR FILTER
Appellants argued below that Kennecott had failed to provide information to show that the air filter it intended to use with its smokestack to limit emissions of pollutants would he effective for that purpose, or was well enough established through uses in industry to obviate the need to do so. The circuit court agreed that Kennecott did not provide information regarding the exhaust stack, but rejected appellants’ challenge on the basis of expert testimony that similar filtration systems were widely used in other industries and worked at a high efficiency rate.
We decline to address this issue in light of events transpiring since it was originally litigated. In their briefs on appeal, the parties agreed that Kennecott submitted an amended application for an air permit that eliminated the filter from the plan, and at oral argument the parties agreed that Kennecott prevailed in this regard and was vindicated in litigation not at issue in this appeal.
For these reasons, we decline to reach this issue in deference to an earlier determination, see In re Application of Consumers Energy Co for Rate Increase, 291 Mich App 106, 122; 804 NW2d 574 (2010) (noting that collateral estoppel retains limited operation in cases originating in administrative agencies), or, alternatively, because subsequent events have rendered it impossible for us to grant any relief in the matter, see B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998) (“As a general rule, an appellate court will not decide moot issues.”).
VIII. CONTINGENCY PLANS
MCL 324.63205(2)(d) requires that an application for a permit to mine nonferrous metallic minerals include a “contingency plan that includes an assessment of the risk to the environment or public health and safety associated with potential significant incidents or failures and describes the operator’s notification and response plans.” Mich Admin Code, R 425.205(1)(a) lists among the potential accidents or failures that must be addressed for this purpose unplanned subsidence of the mine’s structure, power disruptions, equipment failures, fires, natural disasters, and the various risks attendant to producing, processing, storing, releasing, or transporting hazardous substances. Rule 425.205(1)(b) and (c) call for descriptions of emergency procedures, including persons or entities to notify, and Subrule (1) (d) calls for a plan for testing the contingency plan.
Kennecott’s contingency plan listed the 12 hazards set forth in Rule 425.205(1)(a), and addressed each in turn, along with emergency procedures and testing. Appellants protest that the plan is inadequate for failure to consider interruptions of electrical service occasioned by natural disasters and for want of plans for recapturing escaping contaminants, plugging any holes or fractures associated with subsidence, neutralizing any acidification resulting from that or other mishaps, restoring water levels drawn down by subsidence, or rescuing the fish and other wildlife potentially affected by a disaster under the Salmon Trout River. Appellants further assert that the head of the DEQ’s review team for this project stated that Kennecott’s application “contains no contingency plan for subsidence or crown pillar failure; for closure of the wastewater treatment plant for a substantial period of time; for significantly increased inflow to the mine; malfunction of the [mine ventilation air raise] air filtering system; or for water leaking into aquifers from the underground mine.” Appellants further protest that “Kennecott’s application proposes to form a plan only after the fact. If its subsidence monitoring indicates the existence of a problem, only then will it initiate an evaluation of its mining methods and only then will it attempt to devise ‘response measures’ to combat disaster.”
In contrast, the ALJ described Kennecott’s contingency plan as “thorough” and “complete,” addressing “a host of contingencies,” including unexpected subsidence, meaning sinking, or partial collapse, of the crown pillar.
The court noted that appellants had asserted that the head of the DEQ’s review team had admitted that the contingency plan failed to consider crown pillar failure, long-term closure of the wastewater treatment plant, significantly greater mining inflow than estimated, failure of the exhaust stack, contaminated-water leakage from the reflooded mine, or other catastrophic events. The circuit court continued that appellants had in fact misrepresented that DEQ official’s testimony, noting that in the testimony appellants cited the official was speaking not of the contingency plan submitted by Kennecott, but of contingency conditions included within the permit.
The circuit court further noted in detail that Kennecott’s plan contained information regarding each of the contingencies identified by appellants, then added that “[g]iven the multiple different variables that may come into play should any given contingency occur, such as the scope of the problem and the cause or causes of the problem, providing a range of possible measures that will be considered and undertaken is a reasonable approach to drafting a contingency plan.”
Our review of the record confirms the circuit court’s observations concerning the testimony of the DEQ official to whom appellants attribute admissions concerning major deficiencies in Kennecott’s contingency plan. In the testimony that appellants cite, that witness was indeed testifying that the permit, as issued, did not address contingency plans in the event of crown pillar failure, tornadoes, forest fires, prolonged shutdowns of the wastewater treatment plant, inflows to the mine upwards of 500 gallons per minute, or malfunctions of the air filtering system. The witness later reiterated that the permit did not include any contingency plan for failure of the crown pillar, but stated that he would have to check the application to see what it had to say on that subject, then added, “I have not agreed” that the application lacked a contingency plan for crown pillar failure. The next day, the witness again testified about hazards for which the permit, not the application, included no contingency plans. As the circuit court ably noted, the testimony cited does not support the proposition for which appellants cited it.
We further agree with the circuit court that Kennecott properly offered a range of possible responses to several potential misadventures and did not fall short in connection with the most devastating of conceivable disasters, the wholesale collapse of the crown pillar.
Kennecott’s plan first describes mining techniques calculated to “minimize the potential for surface subsidence to occur,” then explains the prediction that “displacement of the crown pillar . . . will be imperceptible at the ground surface,” then continues as follows:
The contingency measures to be taken in the event unanticipated surface subsidence occurs will be initiated based on subsidence monitoring. Subsidence monitoring will be performed at two locations above the ore body, adjacent to the overlying wetland. In the event of unanticipated subsidence, the mining sequence and backfill methods ... will be evaluated and adjusted to reduce the subsidence. Adjustments to the stope sequence, backfill methods, crown pillar thickness, and backfill mix would be [made] as needed to minimize subsidence.
Appellants do not argue that adjustments in the mining sequence and backfill methods are insufficient to cor rect for unexpected subsidence, but instead suggest that the plan is deficient for failing to consider a disastrous degree of subsidence occurring too quickly for those techniques to remediate. We conclude that because there was substantial evidence to support the conclusion that the crown pillar would be stable (see Part V of this opinion), the DEQ and the circuit court did not err by not insisting that the contingency plan consider such an extreme-case scenario.
IX. CONCLUSION
For the reasons stated, we affirm the decision of the circuit court affirming the DEQ’s decision to grant Kennecott a Part 632 mining permit.
Affirmed. No taxable costs under MCR 7.219, a question of public policy being involved.
Cavanagh, P.J., and Owens and Stephens, JJ., concurred.
As noted, this appeal relates only to the decision to grant the mining permit. The decision to grant the groundwater discharge permit is the subject of this case’s companion, Nat’l Wildlife Federation v Dep’t of Environmental Quality (No 2), 306 Mich App 369; 856 NW2d 394 (2014) (Docket No. 308366).
MCL 24.201 et seq.
The DEQ’s final determination and order reflected this understanding in pointing out that the case was ultimately decided on the basis of how the evidence preponderated generally, not simply on the basis of appellants’ failure to prove their objections.
MCL 324.63205(11).
“This act” refers to the Natural Resources and Environmental Protection Act, MCL 324.101 et seq., Part 17 of which, MCL 324.1701 to MCL 324.1706, is the Michigan environmental protection act, commonly referred to as the MEPA.
This is a close paraphrase of MCL 324.63205(3).
The proceedings below included occasional comments about Native American treaty rights in connection with Eagle Rock, which comments were echoed at oral argument. But such discussion was properly kept at the margins in this case, because proceedings under Part 632 are not a forum for vindicating treaty rights.
This testimony confirms the Legislature’s findings stated in MCL 324.63202(c), which we earlier set forth in the recitation of facts. | [
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ON RECONSIDERATION
Per Curiam.
In this foreclosure-related litigation, plaintiff, Federal Home Loan Mortgage Association (Freddie Mac), appeals by leave granted an Ingham Circuit Court opinion and order reversing the 55th District Court’s July 31, 2012 order terminating the possession by defendants Michael R. and Kathryn M. Kelley of residential property located in East Lansing. For the reasons set forth in this opinion, we reverse and remand for reinstatement of the district court’s order.
I. BACKGROUND
A. UNDERLYING MORTGAGE TRANSACTION
This dispute involves real property located at 2458 Barnsbury Road, in East Lansing, Michigan. On March 21, 2003, First National Bank of America loaned defendants $240,000 for the purchase of the property. Defendants executed a mortgage encumbering the property to First National. The mortgage was recorded on April 24, 2003. On March 26, 2003, First National assigned the mortgage to ABN-AMRO Mortgage Group, Inc. The assignment was recorded on November 25, 2003. On September 1, 2007, CitiMortgage, Inc. and ABN-AMRO merged and maintained the name CitiMortgage (hereinafter CMI).
B. FREDDIE MAC AND THE FEDERAL HOUSING FINANCE AGENCY CONSERVATORSHIP
Freddie Mac is a federally chartered corporation that was created as part of the Emergency Home Finance Act of 1970. See 12 USC 1451 et seq.; American Bankers Mtg Corp v Fed Home Loan Mtg Corp, 75 F3d 1401, 1404 (CA 9, 1996). Freddie Mac operates in the secondary mortgage market, purchasing and securitizing residential mortgages. Sonoma Co v Fed Housing Fin Agency, 710 F3d 987, 989 (CA 9, 2013). Freddie Mac is governed by the Federal Housing Enterprises Financial Safety and Soundness Act, 12 USC 4501 et seq. Sonoma Co, 710 F3d at 989.
In 2008, Congress amended the Financial Safety and Soundness Act by enacting the Housing and Economic Recovery Act (HERA), 12 USC 4511 et seq. “HERA established the Federal Housing Finance Agency [FHFA], an independent agency charged with supervising [Fannie Mae and Freddie Mac] and the Federal Home Loan Banks.” Sonoma Co, 710 F3d at 989. HERA empowered the FHFA to act, under certain circumstances, as a conservator or receiver of Freddie Mac or the Federal National Mortgage Association (Fannie Mae) for purposes of “reorganizing, rehabilitating, or winding up the affairs” of either entity. 12 USC 4617(a)(2). It is undisputed that the FHFA placed Freddie Mac into conservatorship in September 2008.
C. FORECLOSURE OF THE PROPERTY
In June 2011, defendants defaulted on the mortgage and CMI foreclosed on the property under Michigan’s foreclosure by advertisement statute, MCL 600.3201 et seq. Freddie Mac purchased the property at an October 20, 2011 sheriffs sale. Defendants failed to redeem the property within the six-month statutory redemption period, and the property vested in Freddie Mac on April 20, 2012. See MCL 600.3236.
On May 1, 2012, after expiration of the statutory redemption period, Freddie Mac initiated eviction proceedings in district court pursuant to MCL 600.5704. Defendants challenged the foreclosure, arguing in part that the foreclosure violated their Fifth Amendment due process rights. Defendants maintained that Freddie Mac was a federal actor by virtue of FHFA’s conservatorship and was subject to the due process requirements of the Fifth Amendment, and therefore could not foreclose by advertisement. Defendants also argued that CMI’s foreclosure was invalid under MCL 600.3204(3) because there was no chain of title evidencing the transfer of the mortgage from ABN-AMRO to CMI. Therefore, according to defendants, CMI did not own the debt and the foreclosure notice failed to properly identify the foreclosing entity.
The district court granted Freddie Mac’s motion for summary disposition under MCR 2.116(C)(9) (failure to state valid defense) and MCR 2.116(C)(10) (no genuine issue of material fact). The district court held in relevant part that Freddie Mac was not a governmental actor subject to Fifth Amendment claims and that the chain of title was proper under MCL 600.3204(3) because the merger between ABN-AMRO and CMI did not constitute an “assignment” of the mortgage that necessitated a recording.
Defendants appealed, and the circuit court reversed. The circuit court held that Freddie Mac was a governmental entity subject to the Fifth Amendment’s notice and hearing requirements. The circuit court reasoned that Freddie Mac filed tax exemptions as the United States under MCL 207.526(h)(i) and 505(h)(i) and that the federal government retained permanent control over all aspects of Freddie Mac. Noting that “FHFA controls every aspect of [Freddie Mac’s] business and its Board of Directors is appointed by and answers to the Director of the FHFA,” the court concluded that “the procedures and provisions in place in this case make the conservatorship, in all practicality, permanent.” Regarding the chain of title, the circuit court held that the foreclosure was invalid because MCL 600.3204(3) requires assignments to be made whenever the foreclosing party is not the original mortgagee, so that assignments must be recorded when a mortgagee merges into another company. The court stated, “ABN AMRO ceased to exist when it merged with [CMI]. Because of this, [CMI] is not synonymous with ABN AMRO, but is an entirely different entity that is required to be assigned the mortgage under MCL 600.3204(3).”
The circuit court reversed the district court’s order awarding possession to Freddie Mac and dismissed the complaint. Freddie Mac applied for leave to appeal and the FHFA moved to intervene. This Court granted both applications. On appeal, Freddie Mac argues that the circuit court erred by holding that it was a governmental entity for constitutional purposes, erred by concluding that the foreclosure failed to comply with MCL 600.3204(3), and, to the extent there was a defect in the chain of title, erred by concluding that the foreclosure was void ab initio as opposed to merely voidable.
II. STANDARD OF REVIEW
“We review de novo a trial court’s decision on a motion for summary disposition to determine whether the moving party is entitled to judgment as a matter of law.” Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519 (2012). We review constitutional issues and issues of statutory construction under the same standard. Great Lakes Society v Georgetown Charter Twp, 281 Mich App 396, 425; 761 NW2d 371 (2008); Cuddington, 298 Mich App at 271.
III. ANALYSIS
A. DUE PROCESS
The Fifth Amendment “appl[ies] to and restrict[s] only the Federal Government and not private persons.” Pub Utilities Comm of DC v Poliak, 343 US 451, 461; 72 S Ct 813; 96 L Ed 1068 (1952). Therefore, the threshold question in this case is whether Freddie Mac is a governmental entity subject to a Fifth Amendment claim.
The circuit court concluded that Freddie Mac is a governmental entity subject to Fifth Amendment claims for two reasons: (1) Freddie Mac “filed tax exemptions as the United States under MCL 207.526(h)(¿) and 505(h)(i)”; and (2) Freddie Mac is a governmental entity under Lebron v Nat’l R Passenger Corp, 513 US 374, 377; 115 S Ct 961; 130 L Ed 2d 902 (1995). Both of these conclusions are erroneous.
With respect to Freddie Mac’s tax status, while MCL 207.505(h)(i) and MCL 207.526(h)(i) provide tax exemptions for certain instruments and transactions involving the United States, Freddie Mac is specifically authorized by federal statute to be exempt from “all taxation now or hereafter imposed by any... State,” except for real property taxes. 12 USC 1452(e). Thus, Freddie Mac would have been exempt regardless of whether it sought an exemption “as the United States.” Moreover, the circuit court did not cite, and defendants do not provide, any authority supporting the position that seeking a tax exemption “as the United States” subjects federally created corporations to constitutional claims under the Fifth Amendment. As the United States Court of Appeals for the Ninth Circuit stated in Hall v American Nat’l Red Cross, 86 F3d 919, 922 (CA 9, 1996), “Government-created corporations are often held to be tax-immune government instrumentalities, but courts have also frequently found them not to be subject to constitutional treatment as government actors.” Thus, the mere fact that Freddie Mac filed for tax exemptions as “the United States” was not dispositive of whether Freddie Mac is a governmental entity for constitutional purposes. Instead, Lebron, 513 US 374, is controlling on this issue, and under the Lebrón framework, we conclude that Freddie Mac is not a governmental entity.
In Lebrón, the United States Supreme Court addressed whether the National Railroad Passenger Corporation (commonly known as Amtrak) was a governmental entity for constitutional purposes. In that case, Amtrak refused to display the plaintiffs political advertisement on a large billboard at Penn Station commonly known as “the Spectacular.” The plaintiff sued, alleging violations of his First and Fifth Amendment rights. Id. at 377-378. At issue was whether Amtrak was a governmental entity subject to the plaintiffs constitutional claims. Id. at 378-379.
In resolving this issue, the Supreme Court held that, “where . . . the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government” for constitutional purposes. Id. at 400. Although Amtrak’s authorizing statute expressly stated that Amtrak was not a federal entity, the Lebrón Court concluded otherwise. The Court reasoned that Amtrak was created by special statute explicitly for the furtherance of a governmental goal — specifically, the preservation of passenger trains in the United States. Id. at 383, 397-398. Furthermore, six of the eight Amtrak board members were directly appointed by the President of the United States. Id. at 397. Moreover, the Court reasoned, the government’s control of Amtrak was permanent in nature, explaining:
Amtrak is not merely in the temporary control of the Government (as a private corporation whose stock comes into federal ownership might be); it is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees. It is in that respect no different from the so-called independent regulatory agencies such as the Federal Communications Commission or the Securities Exchange Commission, which are run by Presidential appointees with fixed terms. Ud.l
In concluding that Amtrak was a federal entity, the Lebron Court distinguished Regional Rail Reorganization Act Cases, 419 US 102; 95 S Ct 335; 42 L Ed 2d 320 (1974), wherein the Supreme Court held that Conrail was not a federal instrumentality “despite the President’s power to appoint... 8 of [Conrail’s] 15 directors.” Lebron, 513 US at 399. The Lebron Court noted that, in Regional Rail, the federal appointees were appointed to the Conrail board to protect federally backed debt obligations. Id. Furthermore, the appointees were required to operate Conrail “at a profit for the benefit of its shareholders,” and full control of the board would shift back to the shareholders once federally backed debt obligations fell below 50 percent of total indebtedness. Id. (quotation marks and citations omitted). In contrast, “[t]he Government exerts its control [over Amtrak] not as a creditor but as a policymaker, and no provision exists that will automatically terminate control upon termination of a temporary financial interest.” Id.
In this case, there is no dispute that the government created Freddie Mac by special statute for the purpose of furthering governmental objectives. Defendants do not argue, nor can they prove that, preconservatorship, Freddie Mac was a governmental entity. See American Bankers Mtg Corp v Fed Home Loan Mtg Corp, 75 F3d 1401, 1406-1409 (CA 9, 1996) (holding that preconservatorship Freddie Mac lacked sufficient government control under Lebron because 13 of its 18 directors were elected annually by common shareholders and its 60 million shares of common stock were publicly traded on the New York Stock Exchange).
Instead, defendants argue that the FHFA’s 2008 conservatorship served to transform Freddie Mac into a governmental entity. This argument is not novel and has been repeatedly rejected by federal courts including the United States Court of Appeals for the Sixth Circuit, which recently held that “[u]nder the Lebrón framework, Freddie Mac is not a government actor who can be held liable for violations of the Fifth Amendment’s Due Process Clause.” Mik v Fed Home Loan Mtg Corp, 743 F3d 149, 168 (CA 6, 2014). This holding aligned with numerous decisions by federal courts across the country, which have soundly rejected the same argument. For the following reasons, we now similarly hold that Freddie Mac, under the conservator-ship of the FHFA, is not a governmental entity for constitutional purposes.
As conservator, the FHFA succeeded to “all” of Freddie Mac’s “rights, titles, powers, and privileges,” with authority to operate all of its business “with all the powers of the shareholders, the directors, and the officers . . . .” 12 USC 4617(b)(2)(A), (B)(i). Although these powers are sweeping, importantly, Congress did not appoint FHFA as permanent conservator over Freddie Mac. Instead, the purpose of the conservatorship is to reorganize, rehabilitate, or wind up Freddie Mac’s affairs. 12 USC 4617(a)(2). These terms connote a temporary period of control, and defendants identify no statutory language showing that the government intended to effectuate a permanent takeover of Freddie Mac.
The circuit court concluded that although “conservatorship is described as a temporary status of a company, the procedures in place in this case make the conservatorship, in all practicality, permanent,” noting that “there is no determined end date in which [Freddie Mac] will become a private entity, nor is there an automatic provision that will revert [Freddie Mac] to a private entity.” Similarly, defendants point out that in Regional Rail, 419 US at 102, the Court held that Conrail was not a federal instrumentality in part because the government’s full voting control would automatically shift back to Conrail’s shareholders once the corporation’s federal debt obligations fell below 50 percent of its indebtedness. Lebron, 513 US at 399, citing Regional Rail, 419 US at 152. Defendants argue that, unlike Conrail, in this case there is no triggering mechanism that terminates the conservatorship. These arguments are unpersuasive.
The Lebrón Court noted that with respect to Conrail the government was merely acting as its creditor and exerted control over Conrail for the purpose of ensuring a profit for Conrail’s shareholders. Lebrón, 513 US at 399. Notably, the Lebrón Court did not state that government control would be deemed permanent unless the government’s involvement was scheduled to terminate on a specified date or upon the satisfaction of a specified condition. To the contrary, the Lebrón Court recognized that the indefinite government control over Conrail, pending the satisfaction of certain conditions, did not equate to permanent government control. Id. With respect to permanence, the conservatorship of Freddie Mac is analogous to the government’s control of Conrail, as it is similarly of indefinite duration pending the satisfaction of certain conditions. See 12 USC 4617(a)(2). Thus, Congress’s failure to specify a termination date does not render the FHFA’s control permanent under the Lebrón framework. This is especially true considering that the government’s control of Freddie Mac was imposed for the inherently temporary purpose of “reorganizing, rehabilitating, or winding up” its affairs. 12 USC 4617(a)(2).
In sum, Freddie Mac was created by special law for governmental purposes; however, although the federal government, through the FHFA, exercises control over Freddie Mac, that control is not permanent in nature. Accordingly, under the Lebrón framework, Freddie Mac is not a federal entity for constitutional purposes, and defendants’ due process claim fails as a matter of law. See Nat’l Airport Corp v Wayne Bank, 73 Mich App 572, 574; 252 NW2d 519 (1977) (“It is unquestioned that state action is required in order to assert a denial of due process under both the Michigan and United States Constitutions. ”).
B. VALIDITY OF FORECLOSURE UNDER MCL 600.3204(3)
Freddie Mac argues that the circuit court erred in holding that the foreclosure was void ab initio because the foreclosure did not comply with MCL 600.3204(3).
MCL 600.3204(3) provides as follows:
If the party foreclosing a mortgage by advertisement is not the original mortgagee, a record chain of title shall exist prior to the date of sale under [MCL 600.3216] evidencing the assignment of the mortgage to the party foreclosing the mortgage. [Emphasis added.][ ]
In this case, it is undisputed that the foreclosing party was not the original mortgagee. First National assigned the mortgage to ABN-AMRO, and that assignment was duly recorded. Subsequently, ABN-AMRO merged with CMI, the foreclosing entity. Freddie Mac argues that CMI was not required to record its interest in defendants’ mortgage under MCL 600.3204(3) because it acquired that interest pursuant to a merger. Defendants argue that the circuit court correctly concluded that CMI failed to comply with MCL 600.3204(3). We need not address the substance of this issue, however, because our Supreme Court in Kim v JPMorgan Chase Bank, NA, 493 Mich 98, 115-116; 825 NW2d 329 (2012), held that parties seeking to set aside a foreclosure sale on this basis must show that they were prejudiced by the mortgagee’s failure to comply with MCL 600.3204 by demonstrating that “they would have been in a better position to preserve their interest in the property absent [the mortgagee’s] noncompliance with the statute.” In this case, the only prejudice defendants allege is that plaintiff violated their due process rights. In light of our holding that defendants’ due process rights were not violated, defendants have failed to allege the prejudice necessary for this Court to reach the merits of this issue.
IV CONCLUSION
In summary, we conclude that Freddie Mac is not a governmental entity for constitutional purposes and defendants’ due process claim therefore failed as a matter of law. Further, whether CMI properly complied with MCL 600.3204(3) is not before us given defendants’ failure to allege prejudice. Therefore, defendants were not entitled to any relief, and the district court properly entered an order terminating defendants’ possession of the property. Accordingly, we reverse the circuit court’s order and remand for reinstatement of the district court’s order terminating defendants’ possession of the property.
Reversed and remanded for proceedings consistent with this opinion. No costs are awarded in this matter. MCR 7.219 (A). We do not retain jurisdiction.
Borrello, P.J., and Servitto and Beckering, JJ., concurred.
In the lower court, plaintiff referred to itself as the Federal Home Loan Mortgage Corporation; however, on appeal, it refers to itself as the Federal Home Loan Mortgage Association. For purposes of this opinion, we will refer to plaintiff as “Freddie Mac.”
Although it appears from the mortgage and other documents that defendants’ surname is “Kelly,” this opinion retains the spelling from the caption of the order being appealed.
“Freddie Mac” was officially titled the “Federal Home Loan Mortgage Corporation.” See 12 USC 1451, 1452.
The FHFA also simultaneously placed Fannie Mae into conservator-ship. See Herron v Fannie Mae, 857 F Supp 2d 87 (D DC, 2012).
Defendants’ brief on appeal explains that at the time of the foreclosure, Freddie Mac was the investor of defendants’ mortgage, and CMI was selected by Freddie Mac to service the mortgage.
Fed Home Loan Mtg Ass’n v Kelley, unpublished order of the Court of Appeals, entered October 11, 2013 (Docket No. 315082).
“Though not binding on this Court, federal precedent is generally considered highly persuasive when it addresses analogous issues.” Wilcoxon v Minn Mining & Mfg Co, 235 Mich App 347, 360 n 5; 597 NW2d 250 (1999).
See, e.g., 12 USC 4501; American Bankers Mtg Corp v Fed Home Loan Mtg Corp, 75 F3d 1401, 1406-1407 (CA 9, 1996) (“The congressional purposes for Freddie Mac are clearly designed to serve the public interest by increasing the availability of mortgages on housing for low- and moderate-income families and by promoting nationwide access to mortgages.”).
See, e.g., Narra v Fannie Mae, opinion of the United States District Court for the Eastern District of Michigan, issued February 7,2014 (Docket No. 2:13-ev-12282); Fed Home Loan Mtg Corp v Shamoon, 922 F Supp 2d 641 (ED Mich, 2013); Lopez v Bank of America, NA., 920 F Supp 2d 798 (WD Mich, 2013); Dias v Fed Nat’l Mtg Ass’n, 990 F Supp 2d 1042 (D Hawaii, 2013); Matueychuk v One West Bank, opinion of the United States District Court for the Northern District of Georgia, issued December 19, 2013 (Docket No. 1:13-CV-3464-AT); May v Wells Fargo Bank, opinion of the United States District Court for the Southern District of Texas, issued August 29, 2013 (Docket No. 4:11-3516); Bernard v Fed Nat’l Mtg Ass’n, opinion of the United States District Court for the Eastern District of Michigan, issued March 27, 2013 (Docket No. 12-14680); In re Kapla, 485 BR 136 (Bankr ED Mich, 2012); Syriani v Freddie Mac Multiclass Certificates, opinion of the United States District Court for the Central District of California, issued July 10, 2012 (Docket No. CV 12-3035-JFW); Herron v Fannie Mae, 857 F Supp 2d 87, 95-96 (D DC, 2012).
Because we conclude that Freddie Mac is not a governmental entity for constitutional purposes, we need not address Freddie Mac’s argument that Michigan’s foreclosure by advertisement does not violate the Due Process Clause.
This language reflects the version of MCL 600.3204(3) in effect when this action was filed. The minor amendment of this provision that became effective on June 19, 2014, does not affect our analysis. See 2014 PA 125. | [
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Per Curiam.
Following a jury trial, defendant appeals as of right his conviction of assault with intent to do great bodily harm (AWIGBH), MCL 750.84. The trial court sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 7 to 20 years’ imprisonment. Because the prosecution presented sufficient evidence to support defendant’s conviction for AWIGBH and any error related to the scoring of prior record variable (PRV) 5 does not entitle defendant to resentencing, we affirm.
Defendant’s conviction arises from a stabbing that occurred on March 7, 2012. At the time of the stabbing, the victim, Luther Allbright, lived with two women, Maria Castillo and Sandra Williams. The evening before the stabbing, defendant and Williams went to defendant’s apartment, approximately two blocks from All-bright’s house. When Williams did not return to All-bright’s house, Castillo became concerned, and she and Allbright went to defendant’s apartment. After Castillo aggressively knocked on the apartment door, defendant opened the door and punched Castillo, at which time Allbright departed from the building without entering defendant’s apartment. Sometime later, Castillo and Williams also departed; but defendant ran after the women and stopped them. Defendant frisked Williams, supposedly looking for possessions he claimed were missing from his apartment.
The following afternoon, defendant went to All-bright’s home and a fight ensued. In particular, according to Allbright, defendant entered his home uninvited and asked, “Why did you bring all that drama to my house?” Defendant then punched Allbright in the face, after which defendant wrestled him to the ground. While the two rolled on the ground, defendant stabbed Allbright twice in the left side of his back, once in the right side of his back (puncturing Allbright’s lung), and once in his left arm. He then pinned Allbright to the ground and told him, “I’m King Tut, bitch.” Afterward, defendant left Allbright’s house, purchased beer at a party store, and returned to his apartment.
At trial, defendant conceded that he brought a knife to Allbright’s home and that he stabbed Allbright, but he claimed that he acted in self-defense. According to defendant’s version of events, he suffers from several medical conditions, including congestive heart failure. Defendant maintained that, during the fight, Allbright ended up on top of defendant while they were wrestling on the ground and, because of his medical conditions, defendant could not breathe, which prompted him to pull a knife and stab Allbright several times.
The trial court instructed the jury on the theory of self-defense; however, the jury convicted defendant of AWIGBH. The trial court sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 7 to 20 years’ imprisonment. Defendant now appeals as of right.
On appeal, defendant first argues that the trial court erred when it assessed 20 points under PRV 5 on the basis of defendant’s prior misdemeanor convictions. Defendant failed to preserve his challenge to the scoring of PRV 5 for appeal, meaning his claim is unpreserved and reviewed for plain error affecting his substantial rights. People v Loper, 299 Mich App 451, 456-457; 830 NW2d 836 (2013); MCL 769.34(10).
Relevant to defendant’s claim, under MCL 777.55(1)(a), PRV 5 should be scored at 20 points when the offender has seven or more prior misdemeanor convictions. The phrase “prior misdemeanor conviction” refers to “a conviction for a misdemeanor under a law of this state, a political subdivision of this state, another state, a political subdivision of another state, or the United States if the conviction was entered before the sentencing offense was committed.” MCL 777.55(3)(a). However, for purposes of PRV 5, not all prior misdemeanor convictions may be counted when determining how many prior misdemeanor convictions a defendant has. MCL 777.55(2). Specifically, except as provided in MCL 777.55(2)(b), which does not apply in this case, a prior misdemeanor conviction may be counted “only if it is an offense against a person or property, a controlled substance offense, or a weapon offense.” MCL 777.55(2)(a).
In this case, defendant has numerous misdemeanor convictions that the trial court considered when it assessed defendant 20 points under PRV 5. On appeal, defendant acknowledges that he has 13 misdemeanor convictions, including four for possession of drug paraphernalia, but he asserts that he should have been assessed only 10 points, the score appropriate when the offender has 3 or 4 misdemeanor convictions. See MCL 777.55(1)(c). Defendant argues that only four of his misdemeanor offenses — aggravated assault, resisting and obstructing a police officer, and two trespassing convictions — qualify as offenses against a person or property, a controlled substance offense, or a weapon offense. He specifically asserts that his four convictions for possession of drug paraphernalia may not be counted as controlled substance offenses.
The prosecution concedes error in the scoring of PRV 5, acknowledging that not all of defendant’s misdemeanor convictions should have been counted. However, the prosecution identifies what it considers to be six offenses that could have been properly counted under PRV 5: aggravated assault, resisting and ob-
stracting, and four convictions for possession of drug paraphernalia. By the prosecution’s count, defendant’s prior misdemeanors merit a PRV 5 score of 15 points. See MCL 777.55(1)(b).
If the prosecution is correct, any error in the trial court’s scoring was harmless as it did not affect defendant’s ultimate PRV score and therefore did not alter the appropriate guideline range. In contrast, if defendant’s view is correct, a PRV 5 score of 10 points would necessitate resentencing because it would affect defendant’s ultimate PRV score and thus alter the appropriate guidelines range. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring error does not alter the appropriate guidelines range, resentencing is not required.”). Specifically, with a PRV 5 score of 20 points, defendant’s total PRV score was 55 points, placing him in PRV Level E. MCL 777.65. A reduction to 15 points, as advanced by the prosecution, results in a total PRV score of 50 points, which still places defendant in PRV Level E. In contrast, a 10-point score for PRV 5, as championed by defendant, reduces defendant’s total PRV score to 45 points, placing him in PRV Level D. Id. Because error, if there is error, in the counting of defendant’s misdemeanor drug paraphernalia offenses would necessitate resentencing, we must decide whether misdemeanor convictions for possession of drug paraphernalia qualify as controlled substance offenses for purposes of scoring PRV 5.
To make this determination, we must ascertain what the Legislature intended when it authorized the counting of a prior misdemeanor conviction under PRV 5 that qualified as a “controlled substance offense.” MCL 777.55(2)(a). The Code of Criminal Procedure and, in particular, the statutory provisions relating to the scoring of PRV 5 do not include a definition of the phrase “controlled substance offense.” However, this Court has previously recognized that the phrase relates to Article 7 of the Public Health Code. See People v Endres, 269 Mich App 414, 418; 711 NW2d 398 (2006), overruled in part on other grounds by People v Hardy, 494 Mich 430, 438 n 18 (2013). Specifically, Article 7, which is titled “controlled substances,” includes a definition for the term “controlled substance” and it penalizes offenses involving controlled substances. Because Article 7 governs controlled substances, in Endres, this Court ruled “it appropriate to apply the Public Health Code definition of ‘controlled substance’ for purposes of PRV 5,” and, because alcohol was not identified as a controlled substance under the Public Health Code definition, this Court reasoned that the defendant’s alcohol-related misdemeanor convictions could not be counted under PRV 5 as controlled substance offenses. Id. at 418-420.
In keeping with Endres, we again turn to Article 7 of the Public Health Code to ascertain whether misdemeanor convictions for possession of drug paraphernalia may be counted toward the scoring of PRV 5 as controlled substance offenses. A definition of drug paraphernalia is specifically provided in Article 7 at MCL 333.7451, and this definition makes plain that, while drug paraphernalia is not itself a controlled substance, certain acts related to drug paraphernalia have been criminalized because drug paraphernalia is inextricably linked to controlled substances. For this reason, offenses involving drug paraphernalia qualify as controlled substance offenses. Specifically, “drug paraphernalia” refers to “any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance . . . .” MCL 333.7451 (emphasis added). Acts involving drug paraphernalia are then criminalized in MCL 333.7453 and MCL 333.7455. Notably, the statutory definition of drug paraphernalia and the related provisions criminalizing activities associated with drug paraphernalia are found in Part 74 of Article 7, and Part 74 is specifically titled “offenses and penalties.” Thus, offenses involving drug paraphernalia have been specifically categorized by the Legislature as offenses within the controlled substances article of the Public Health Code. Given this classification, it is apparent that such offenses may be counted as controlled substance offenses for purposes of PRV 5.
Accordingly, we conclude that, in this case, the trial court properly counted defendant’s misdemeanor convictions for possession of drug paraphernalia under PRV 5. Counting these offenses and also accepting the prosecution’s concession of error relating to several of defendant’s other misdemeanor convictions, PRV 5 should have been scored at 15 points rather than 20 points. However, this error does not require resentencing because the change to defendant’s PRV score does not alter the appropriate guidelines range. See Francisco, 474 Mich at 89 n 8.
On appeal, defendant also argues that the evidence presented at trial was insufficient to sustain his conviction for AWIGBH. Specifically, defendant maintains that the prosecution failed to establish that he possessed the requisite intent to cause great bodily harm. He also asserts that the prosecution failed to disprove his claim of self-defense.
Challenges to the sufficiency of the evidence are reviewed de novo, in the light most favorable to the prosecution, to determine if any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012). All conflicts in the evidence are resolved in favor of the prosecution. Id. This Court will not interfere with the trier of fact’s determinations regarding the weight of the evidence or the credibility of witnesses. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
The elements of AWIGBH are “(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.” People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997). AWIGBH is a specific intent crime. Id. The intent to do great bodily harm less than murder is “an intent to do serious injury of an aggravated nature.” People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005) (quotation marks and citation omitted). “If a defendant has such intent, the fact that he was provoked or that he acted in the heat of passion is irrelevant to a conviction.” People v Mitchell, 149 Mich App 36, 39; 385 NW2d 717 (1986). Because of the difficulty in proving an actor’s intent, only minimal circumstantial evidence is necessary to show that a defendant had the requisite intent. People v Harverson, 291 Mich App 171,178; 804 NW2d 757 (2010). Intent to cause serious harm can be inferred from the defendant’s actions, including the use of a dangerous weapon or the making of threats. See Parcha, 227 Mich App at 239; People v Cunningham, 21 Mich App 381, 384; 175 NW2d 781 (1970). Although actual injury to the victim is not an element of the crime, People v Harrington, 194 Mich App 424, 430; 487 NW2d 479 (1992), injuries suffered by the victim may also be indicative of a defendant’s intent, see Cunningham, 21 Mich App at 384.
In this case, defendant went to Allbright’s home armed with a knife to confront him over a perceived wrong from the previous evening. Allbright testified that defendant entered his home without invitation, threatened him, instigated a fight, and wrestled him to the ground. Defendant then took out his knife and stabbed Allbright four times. Three of the stab wounds were to Allbright’s back, and one succeeded in puncturing his lung. After stabbing Allbright, defendant pinned him to the ground and proclaimed that he was “King Tut, bitch.” Defendant then walked away from the incident, purchased beer, and went home. On the whole, this evidence — particularly defendant’s instigation of the fight, his use of a knife, and the serious injury suffered by Allbright — was sufficient to demonstrate that defendant intended to cause a serious injury of an aggravated nature.
To the extent defendant argues that the prosecution failed to disprove his claim of self-defense, his claim is equally without merit. Once a defendant raises the issue of self-defense and “satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist,” the prosecution must “exclude the possibility” of self-defense beyond a reasonable doubt. People v Dupree, 486 Mich 693, 709-710; 788 NW2d 399 (2010) (quotation marks and citations omitted). Under MCL 780.972(1):
An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if...
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
In this case, ample evidence existed to discount defendant’s claim of self-defense. According to All-bright, defendant entered his home uninvited and attacked him. From this, it appears defendant had no legal right to be in the home, and that, by attacking Allbright, defendant engaged in the commission of a crime. In these circumstances, defendant could not justifiably claim self-defense. See MCL 780.972(1)(a). Further, Allbright was never armed with any sort of weapon, and there is no indication that Allbright used deadly force against defendant. The only evidence that defendant had reason to fear for his life came from defendant’s testimony, in particular defendant’s claim that Allbright was on top of him during their struggle, causing him difficulty breathing. But this testimony was in conflict with Allbright’s description of events, and the credibility of defendant’s testimony was a question for the jury. See Kanaan, 278 Mich App at 619. And, indeed, a jury could well disbelieve, even from defendant’s description, that stabbing Allbright four times was necessary to prevent defendant’s imminent death. On the whole, the prosecution provided sufficient evidence to exclude beyond a reasonable doubt defendant’s claim of self-defense. See MCL 780.972(1)(a).
Affirmed.
Hoekstra, P.J., and Wilder and Fort Hood, JJ., concurred.
The jury found defendant not guilty of assault with intent to murder, felonious assault, and first-degree home invasion.
We note that, in contrast to the prosecution, defendant includes two trespassing convictions as misdemeanors that may be scored under PRV 5, presumably on the premise that they constitute crimes against property. Because, in this case, scoring of these trespassing offenses will not alter the appropriate guideline range, we find it unnecessary to consider whether misdemeanor trespassing convictions may be scored under PRV 5. Cf. People v Crews, 299 Mich App 381, 399 n 10; 829 NW2d 898 (2013).
Capitalization altered.
Capitalization altered; italicization omitted.
Given this result, we see no merit in defendant’s claim that counsel rendered ineffective assistance by failing to object to the scoring of defendant’s misdemeanor convictions for possession of drug paraphernalia. Because these convictions were properly scored, any objection by counsel would have been futile, and counsel cannot be considered ineffective for failing to raise a futile objection. See People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004). | [
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Per Curiam.
We granted the delayed application for leave to appeal by respondent State Tax Commission (STC) regarding a circuit court order reversing a decision of the STC that denied petitioner’s request to reclassify its real and personal property from commercial to industrial for the 2011 tax year. We reverse.
The STC challenges the standard of review the circuit court employed. The STC maintains that because this appeal did not arise from a contested case, judicial review was limited to ascertaining whether the law authorized the STC’s decision. According to the STC, the circuit court erred to the extent that it took into account facts beyond the administrative record in this case. The STC argues that the court should have struck petitioner’s appellate brief, which referred to facts not part of the administrative record.
We must begin our review of the circuit court’s review of an agency decision by determining whether the circuit court applied correct legal principles. Monroe v State Employees’ Retirement Sys, 293 Mich App 594, 607-608; 809 NW2d 453 (2011), quoting Boyd v Civil Serv Comm, 220 Mich App 226, 234-235; 559 NW2d 342 (1996). The first paragraph of Const 1963, art 6, § 28, delineates the scope of judicial review of agency decisions. It provides, in relevant part:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
In Midland Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich 83, 91-93; 803 NW2d 674 (2011), our Supreme Court held that an STC classification decision is reviewable under this constitutional provision because it embodies a final, quasi-judicial decision that affects private rights. Because no other review is “provided by law,” a property owner may appeal a classification decision by the STC to the circuit court. Id. at 97-98, citing MCL 600.631.
Although petitioner has an avenue by which to obtain direct review of the STC’s classification of property, the parties dispute the applicable scope of this review. This Court has explained that the proper scope of review depends on whether the STC held a hearing:
Whether “a hearing is required” is determined by reference to the statute governing the particular agency. Where no hearing is required, it is not proper for the circuit court or this Court to review the evidentiary support of an administrative agency’s determination. In such cases, [judicial review is not de novo and is limited in scope to a determination whether the action of the agency was authorized by law. [Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998) (some quotation marks omitted; citations omitted).]
We conclude that the review procedure in MCL 211.34c(6) does not qualify as a hearing in the constitutional sense. The goal of the judiciary when construing Michigan’s Constitution is to identify the original meaning that its ratifiers attributed to the words used in a constitutional provision. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). In performing this task, we employ the rule of common understanding. In re Burnett Estate, 300 Mich App 489, 497; 834 NW2d 93 (2013). Under the rule of common understanding, we must apply the meaning that, at the time of ratification, was the most obvious common understanding of the provision, the one that reasonable minds and the great mass of the people themselves would give it. Adair v Michigan, 486 Mich 468, 477; 785 NW2d 119 (2010), quoting Traverse City Sch Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). “Words should be given their common and most obvious meaning, and consideration of dictionary definitions used at the time of passage for undefined terms can be appropriate.” In re Burnett Estate, 300 Mich App at 497-498. According to Webster’s Third New International Dictionary (1965), the applicable definitions of “hearing” include: “a trial in equity practice”; “a listening to arguments or proofs and arguments in interlocutory proceedings”; “a trial before an administrative tribunal”; and “a session (as of a congressional committee) in which witnesses are heard and testimony is taken.” These definitions contemplate an opportunity to present before a tribunal evidence and argument.
The review of property classification disputes afforded in MCL 211.34c(6) does not require a hearing. In pertinent part, MCL 211.34c(6) provides:
An owner of any assessable property who disputes the classification of that parcel shall notify the assessor and may protest the assigned classification to the March board of review. An owner or assessor may appeal the decision of the March board of review by filing a petition with the state tax commission not later than June 30 in that tax year. The state tax commission shall arbitrate the petition based on the written petition and the written recommendations of the assessor and the state tax commission staff. [Emphasis added.]
The plain statutory language contemplates that the STC must arbitrate a property classification dispute only on the basis of written submissions. Consequently, judicial review of the STC’s classification determinations is limited to whether they “are authorized by law.” Const 1963, art 6, § 28.
[I]n plain English, authorized by law means allowed, permitted, or empowered by law. Black’s Law Dictionary (5th ed). Therefore, it seems clear that an agency’s decision that is in violation of statute [or constitution], in excess of the statutory authority or jurisdiction of the agency, made upon unlawful procedures resulting in material prejudice, or is arbitrary and capricious, is a decision that is not authorized by law. [Northwestern Nat’l Cas Co, 231 Mich App at 488 (quotation marks and citation omitted).]
We conclude that the circuit court employed an appropriate standard of review. Although the circuit court entertained some hypothetical arguments concerning whether the scope of petitioner’s activities might qualify as either commercial or industrial under MCL 211.34c, the court did not make any findings on the basis of the hypothetical arguments. The court’s ruling properly took into account only the STC’s determinations that no manufacturing or processing took place on petitioner’s property, but that some warehousing did. Because the circuit court’s ultimate ruling took into account only the facts that the STC found concerning the absence of manufacturing or processing and the presence of a warehouse on petitioner’s property, the court did not improperly expand the record.
The STC also asserts that the circuit court misconstrued MCL 211.34c(2)(d)(ii) when it concluded that petitioner’s property qualifies as industrial property. This Court reviews de novo issues of statutory interpretation underlying an administrative body’s ruling. Wexford Med Group v City of Cadillac, 474 Mich 192, 202; 713 NW2d 734 (2006).
When faced with questions of statutory interpretation, our obligation is to discern and give effect to the Legislature’s intent as expressed in the words of the statute. We give the words of a statute their plain and ordinary meaning, looking outside the statute to ascertain the Legislature’s intent only if the statutory language is ambiguous. Where the language is unambiguous, we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written. Similarly, courts may not speculate about an unstated purpose where the unambiguous text plainly reflects the intent of the Legislature. [Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002) (quotation marks and citations omitted).]
MCL 211.34c(1) requires local assessors to annually “classify every item of assessable property according to the definitions contained in this section.” The pertinent definitions appear in MCL 211.34c(2), which provides, in relevant part:
(b) Commercial real property includes the following:
(i) Platted or unplatted parcels used for commercial purposes, whether wholesale, retail, or service, with or without buildings.
(ii) Parcels used by fraternal societies.
(Hi) Parcels used as golf courses, boat clubs, ski areas, or apartment buildings with more than 4 units.
(iv) For taxes levied after December 31, 2002, buildings on leased land used for commercial purposes.
(d) Industrial real property includes the following:
(i) Platted or unplatted parcels used for manufacturing and processing purposes, with or without buildings.
(ii) Parcels used for utilities sites for generating plants, pumping stations, switches, substations, compressing stations, warehouses, rights-of-way, flowage land, and storage areas.
(iii) Parcels used for removal or processing of gravel, stone, or mineral ores.
(iv) For taxes levied after December 31, 2002, buildings on leased land used for industrial purposes.
(v) For taxes levied after December 31, 2002, buildings on leased land for utility purposes.
The circuit court concluded that because petitioner’s property contained a warehouse, it qualified as industrial real property under MCL 211.34c(2)(d)(ii). The court accepted petitioner’s argument that it had to construe the term “warehouses” in subsection (2)(d)(ii) in petitioner’s favor in accordance with the proposition that ambiguities in tax statutes should be construed in the taxpayer’s favor. We find nothing ambiguous in the language of subsection (2)(d)(ii). By its plain terms, the subsection defines as “Industrial real property” parcels utilized for a variety of utility-site-related purposes, including warehousing. We conclude that the circuit court incorrectly interpreted the language in subsection (2)(d)(ii), which does not apply unless petitioner’s property is used for utility-related functions.
Although MCL 211.34c(6) does not expressly say so, petitioner had the burden to prove that the assessor improperly classified its property as commercial. See Baker v Costello, 300 Mich 686, 689; 2 NW2d 881 (1942) (applying the general rule that the burden of proof lies with the proponent of an allegation). Because petitioner did not submit with its reclassification petitions documentary evidence establishing in what manner it used the property during the 2011 tax year, petitioner failed in its burden to demonstrate that the property should be classified as industrial pursuant to MCL 211.34c(2)(d)(i) or (ii). And because petitioner did not substantiate the manner in which it used the property during the 2011 tax year, the STC properly denied the reclassification petition. For purposes of petitioner’s appeal in the circuit court, we find that the STC’s denial of the petition was authorized by law; therefore, the circuit court incorrectly applied MCL 211.34c(2)(d)(ii) when it reversed the STC’s classification ruling.
We reverse.
O’Connell, P.J., and Fitzgerald and Markey, JJ., concurred.
Petitioner suggests that if a more restrictive proceeding exists under which taxpayers may challenge STC classification decisions in MCL 211.34c(6), the existence of a broader avenue for Department of Treasury appeals of classification decisions in MCL 211.34c(7) violates petitioner’s right to due process and equal protection. Subsection (7) envisions that “[t]he department of treasury may appeal the classification of any assessable property to the residential and small claims division of the Michigan tax tribunal. . . .” However, the Legislature might reasonably have wanted to provide the state a more expansive review procedure to enhance the state’s ability to ensure that all Michigan property is classified properly for taxation purposes and to protect the income that the state derives from its tax base. Crego v Coleman, 463 Mich 248, 259-260; 615 NW2d 218 (2000) (“Under rational-basis review [of equal protection claims], courts will uphold legislation as long as that legislation is rationally related to a legitimate government purpose. To prevail under this highly deferential standard of review, a challenger must show that the legislation is arbitrary and wholly unrelated in a rational way to the objective of the statute. A classification reviewed on this basis passes constitutional muster if the legislative judgment is supported by any set of facts, either known or which could reasonably be assumed, even if such facts may be debatable.”) (quotation marks and citations omitted). | [
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Campbell J.:
The complainant, being the holder of a negotiable promissory note given by S. F. Hodge, the defendant, secured by mortgage, filed his bill to foreclose. The note was originally given to one Cowles, and it was set up in defense that Hodge had, prior to the maturity of the note, been garnisheed upon a claim against Cowles, and suffered judgment for a portion of the amount of the note. It appears very clearly that Littlefield was a bona fide assignee of the note before it became due, and the evidence in no way tends to impeach his good faith.
We think the decree below was rightly made, in favor of the complainant. He was an entire stranger to the garnishee proceedings; and they could not stop the currency of commercial paper, the negotiability of which is recognized and protected, not only by the law merchant, but by express Statute. Garnishee process is not, we think, properly applicable to such paper, until it has ceased to become negotiable, by falling due. The debtor can not know certainly in whose hands his obligation may be when it matures, and his admission that such a note is outstanding can not be effectual as an admission of indebtedness to the original holder, of such a character as to be a continuing liability in his hands. The courts have, very generally, in the absence of statutes to the contrary, regarded negotiable paper as not liable to be reached in this way; and the reasons on which they have so decided are obvious and unanswerable. — See Drake on Attachment, §577, et seq.
It was urged that the note in question here, although payable to order, and without contingency, on a day certain, was not negotiable, because it purported to be according to the condition of a mortgage. But as the. terms of the mortgage correspond with those expressed in the note, there is nothing to affect its negotiability. Whatever might be the effect of a repugnancy (upon which we express no opinion), nothing short of that could impair the negotiable character of the security.
t The decree must be affirmed, with costs.
The other Justices concurred. | [
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Campbell J.:
This case comes up on reservation from Calhoun Circuit.
The plaintiff, who is widow of Samuel Snyder, brought ejectment for her dower in certain premises occupied by the defendant. The property was sold during the life-time of Samuel Snyder, upon an execution against him. Prior to the execution proceedings, Samuel Snyder had executed a mortgage upon the premises, in which the plaintiff joined by way of releasing her dowel. The execution title having become absolute, was purchased by the holder of the mortgage, who subsequently conveyed the .whole property by warranty deed to the defendant in this action.
The plaintiff claims that she is entitled to dower in the premises, without any deduction on account of the mortgage, on the ground that it has been extinguished by the union of titles.
The authorities are quite uniform that the holder of a mortgage interest shall lose no substantial rights by becoming owner of the equity of redemption. It would be a rule in conflict with every principle of justice, to hold that by the union of two separate' interests, each of which repre sented a full and valuable consideration, either should be destroyed, unless some duty lay on the holder inconsistent with the assertion of any such rights. In this case the wife was fairly entitled to dower in the fee of the land, because she never released her dower in it; but she certainly could have no claim to dower as against the mortgage, unless that had been paid or discharged by some one whose act would in law inure to her benefit.
Our statute (2 Gomp. L. p. 851) provides that when the heir, or any other person claiming under the husband, shall pay and satisfy a mortgage in which the wife has joined with her husband, the amount of the mortgage shall be deducted from the whole value of the land, and the widow’s dower shall be set off in the residue. In setting-off dower under such a state of facts, the commissioners, having ascertained the whole value of the property, deduct from that value the amount of the incumbrance, and set off such a portion of land to the widow’s use as they consider worth one-third of the residue. The amount of the incumbrance being ascertained, there is no practical difficulty in performing their duty. n
Mr. Alvah Snyder, holding the execution title and the mortgage, and having- conveyed the land as an entirety, it is fair to presume that he intended to regard the mortgage as extinguished, as an independent security. But this extinguishment being made by himself, and he being, in virtue of his execution title, an assignee of the husband, this can not enlarge the widow’s rights. She can only claim' dower in the residue. And inasmuch as the statute provides for making the deduction in setting off dower, that is the proper occasion for making it.
The only remaining- inquiry is whether this can be done in the action of ejectment. Our statute does not require dower to be set off before ejectment. It authorizes an action to be brought by any one entitled to dower, and, in case of recovery, provides that it shall be set off by commissioners, in the same manner as in probate proceedings.— 2 Comp. X. p. 1240, §4612.
As tbe widow’s dower is to be reduced by any sucb incumbrances as have been referred to, it would seem thaj they should be proven in order that a proper foundation may be laid for instructions to the commissioners. In this case the amount of the mortgage is agreed upon, and there is therefore no difficulty in giving the proper instructions.
We are of opinion that the facts before us are such that the whole rights of the parties may be disposed of in tbe action of ejectment, and that the conveyance to Alvah Snyder was, under the circumstances, such a merger as authorized him to stand in the position of an assignee of Samuel Snyder satisfying it.
The other Justices concurred.
See Brown v. Lapham, 3 Cush, 557. | [
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Oiieistiancy J.:
The main question in this case is, whether the two deeds from Macy to Dodd and Hoxie respectively, dated August 4th, 1835, acknowledged the same day, and recorded in the uffice of the register of deeds in the city of Detroit, October 9th, 1835, were so executed, attested, and acknowledged, as to be entitled to record under the then existing laws of the territory. If entitled to be recorded, the record was notice to all the world of the title of Dodd and Hoxie, and they should have ■«closure suit; and not having been made parties to the fore-been made parties, they were Hot bound by the decree, and they or their grantees would' now be entitled to redeem. But if not entitled to record,, then, though, recorded in fact, the record is notice to no one,, and Dodd and Hoxie, and their grantees, are barred of all' rights of redemption by the foreclosure against Macy alone;all the mortgaged premises having been purchased by the other defendants from Abbott, and neither he nor his-, grantees- having any notice of the titles in question, aside fi‘om the record.
These deeds purport to have been executed in the state of New York, and each has but a single witness, who is, the same person before whom the acknowledgment was taken*
The defendants insist that these deeds were not entitled to record, First, Because not properly acknowledged and certified, according to the laws of the state of New York, and the seventh section of the territorial act of Michigan, of April 12th, 182V (Compilation of 1888, p. 281, efic.); and, Second, If duly acknowledged and certified, they could not be legally recorded, because not attested by two witnesses.
The first ground of objection we think wholly untenable. It is fully met by the decision of this court in Ives v. Kim-ball, 1 Mich. 308, which arose under the same law. The only circumstance which might distinguish that case from the present (as relates to this point), is, that in that case the acknowledgment was taken before a judge of the Court of Common Pleas, wbñe in tbe case before us it was before a commissioner. The provision, of the New York Revised Statutes (.Edition of 1836, vol. 1, p. '749, section eighteen), to which we are referred, and which requires a clerk’s certificate to a commissioner’s acknowledgment when the deed is to be recorded in another county, manifestly has no application to this case, as it only applies when the deed is to be recorded in some other county of that state. This clerk’s certificate is no part of the acknowledgment, or of the certificate of acknowledgment. The latter under' section seven of the is the only certificate required territorial act. The question hero is, whether the acknowledgment, and the certificate of such acknowledgment, were in accordance with the laws of New York. TJpon this question we can not entertain a doubt. We think, therefore, the deeds were sufficiently acknowledged and certified to entitle them to record here, if they could be recorded with a single witness only.
But the question still remains, whether the deeds were entitled to record with but a single subscribing witness. .
This question depends entirely upon the territorial statute originally adopted by the Governor and Judges, March 27th, 1820, from the laws of five of the original states {Laws of 1820, p. 156, et seq.), re-enacted without altera tion (so far as this point is involved), April 12th, 1827 (Laws of 1827, p. 258; and Laws of 1883, p. 279), and in force at the time the deeds in question were made and recorded. "We say the question depends entirely upon this statute, because it was the only statute in force upon the subject, and because, though statutes in pari materia often shed much light upon the true construction of a particular statute in a doubtful case, yet, in the present case, we think the legislative intent can be easily deduced from this statute itself, and if it could not, such is the peculiar nature of the case, that little .light could be derived either from prior or subsequent legislation. Little from the for mer, as this was tbe first act of the legislative power of the territory in reference to the material questions here in-, volved. And whether the provision of the Ordinance requiring two witnesses (until other provisions should be made by the territorial laws) was, or was not, in force when this act was adopted, it ceased upon its adoption, and its prior existence can furnish no safe inference in itself, whether the policy of that Ordinance in this'respect was intended to be continued or changed by the act. The one inference might be as probable as the other, and the question can only be settled by the provisions of the act itself Quite as little light is to be derived from subsequent legislation; because, First, There was no subsequent act on the subject till after these deeds were executed and recorded, and a legislative construction could have little effect upon prior transactions; and, Second, The subsequent legislation so entirely changed and re-changed the law relative to witnesses, and deeds executed out of the state, that the principal inference to be drawn from this subsequent legislation as to the understanding or intention, of the Legislature in reference to this act, is, that' they were not satisfied with the law as it was, and therefore chose to alter it by making a different provision.
The question must, therefore, be settled by an analysis of the provisions of the act itself; and its solution will be found to depend mainly upon the first and seventh sections.
The first section provides “That all deeds or other conveyances of any lands, tenements, or hereditaments, lying in this territory, signed and sealed by the parties granting the same, having good and lawful right and authority thereunto, and signed by two or more witnesses, and acknowledged by such grantor or grantors, or proved, and recorded, as hereinafter provided, shall he good and valid to pass the same lands, tenements, or hereditaments, to the grantee or grantees, without any other act or ceremony in law whatever.”
Whether a deed without two witnesses would be invalid to pass the title inter partes, under this -section, is a question upon which we express no .opinion, as it is not involved in the case. But whether it relates to the validity of the deed inter partes, or only to its validity for the purposes of registry, for which provision is made in the subsequent sections, can make little difference here: whether it relates to the one or the other, or to both, we are satisfied from the nature of the provision, and the whole scope of the act — the obvious design of which was to provide a system for the conveyance of lands and the registry of deeds, which should be complete in itself — that this see, tion must be construed as exclusive in its operation, though there are no negative words; and this is abundantly shown by the following authorities, cited by the counsel of the defendants.— Wiswall v. Ross, 4 Port. Ala. 321; Claris v, Graham, 6 Wheat. 577; Alston v. Thompson, 1 Cheves, 271; Gorham v. Daniels, 23 Vt. 600.
But if this provision, touching the validity of the deed, relates only to its validity for the purpose of registry (and, it certainly relates to this, whether it has any greater extent or not), no one can doubt that, in this respect at least, the provision is exclusive, and no deed included under this section could be recorded without two witnesses. There was no registry at common law; and so far as this pro-, vision relates to validity for the purpose of registry, it is an enabling act. The validity of the deed for the pur-, pose of registry can extend no further than the affirmative provisions of the statute have extended it; the common law can not supply any omission or deficiency of the statute. The same reasoning will apply to, and the same conclusion result from, the provisions of section seven, touching the validity of deeds there mentioned. We can not, therefore, resist the conclusion that to authorize the registry of a deed under this statute, it must be a valid deed under this statute, and that its validity must depend upon the affirmative provisions of the statute itself; unless, indeed, the statute has in some way recognized a common law deed as susceptible of record — a point which we shall consider in the proper place.
But do the provisions of this section, in reference to the execution and attestation of deeds, extend to the deeds mentioned in the seventh section? The language of the first section is general, and on its face purports to apply to all deeds affecting lands in the territory; and must therefore be applied to all the deeds mentioned in the act, unless clearly limited to a part only, by some subsequent .provision. It is also apparent that while this section purports to prescribe rules for the execution and attestation of all deeds affecting lands in the territory, it has made no provision for the mode of acknowledgment, or proof (as a substitute for acknowledgment), or registry, of the deeds mentioned in it; but for provisions touching these subjects it exp'essly refers to the subsequent provisions of the act, by the clause “and acknowledged, or proved, and recorded, as hereinafter provided.”
This reference would seem to extend to all the subsequent provisions of the act on the subject of acknowledgment or proof and registry, and plainly to indicate that all the deeds and conveyances for the acknowledgment or proof and registry, of which provision is made in any subsequent Section, were understood to be included among the deeds and conveyances mentioned in this section, unless this reference should be found to be limited by some subsequent provision.
The subsequent provisions relating • to the acknowledgment or proof and registry are to be found in sections two, three, four, six, and seven.
Section two (which will be noticed more fully hereafter) provides for the acknowledgment or proof of deeds within the territory only, requires them to be recorded, and prescribes the consequences of omitting to record them. It makes no provision for acknowledgment or proof out of the territory, nor does it prescribe the order or manner oí recording.
Section three provides for a register of deeds in the city ■of Detroit.
Section four provides for the acknowledgment of deeds of married women: 1st, those residing in the territory; 2d, those residing toithout the territory; and authorizes the recording of deeds of the latter class.
Section six, provides that “ all deeds,” &c., entitled to be recorded “by virtue of this act,” shall be recorded in the order and within the time therein prescribed ; and makes the deed when recorded, with the register’s certificate on the same, as well as the record, or a transcript thereof, evidence in any court, without further proof. This is the only section which provides for the order or mode of recording.
Section seven, upon which the questions in this cause mainly depend, is in the following words: “That all deeds and conveyances of lands, tenements, or hereditaments, situate lying and being within this territory, which shall hereafter be made and executed in any other territory, state, or country, whereby such lands, tenements, or hereditaments shall be conveyed, in whole or in part, or otherwise affected or incumbered in law, shall be acknowledged, and proved, and certified, according to, and in conformity with, the laws and usages of the territory, state, or country, in which such deeds or conveyances were acknowledged or proved, or in which they shall be acknowledged or proved; and all such deeds and conveyances are hereby declared effectual and valid in law, to all intents and purposes, as though the same acknowledgments had been taken, or proof of execution made, within this territory, and in pursuance of the laws thereof; and such deeds and conveyances, so acknowledged or proved as aforesaid, may be admitted to be, and shall be, recorded in the respective counties in which such lands, tenements, or hereditaments, do or may lie; and all deeds and conveyances of lands, tenements, and hereditaments, situate'lying and being within this territory, which have been acknowledged or proved in any other territory, state, or country, according to, and in compliance with, the laws and usages of such territory, state, or country, and which deeds or conveyances have been recorded within this territory, be and the same are hereby, confirmed and declared effectual and valid in law, to all intents and purposes, as though the said deeds or conveyances, so acknowledged or proved and, recorded, had, prior to being recorded, been acknowledged or proved within this territory.”
It is contended by the complainant’s counsel that the general provisions of section one are restrained by the language of section two, so as to include no other deeds than those which are required to be acknowledged under the provisions of section two, and that the reference contained in the language of section one in the clause “as hereinafter provided,” &c., is thereby restrained in like manner; that section seven provides for a class of deeds not included in section one, and is to be treated as complete in itself, providing for the execution, acknowledgment, and registry of all deeds executed out of the territory; and in support of this view (and necessary to its support) it is further contended, that the execution of the deeds mentioned in section seven is sufficiently provided for by the, section itself, either, 1st (as maintained by the counsel who opened the argument), by adopting a common law deed and a common law execution; or, 2d (as urged with much ability by the_ counsel who closed), that this section has adopted, for the purposes of execution, the law of the place of execution.
Let us see whether this construction will fairly harmonize the various provisions of the statute.
Is the first section limited by the second as contended? It can not be denied that, on a first inspection, confining ourselves strictly to the particular words, “all such deeds,” &c., in connection with the provision for acknowledgment within the territory, this view would appear plausible; but Avhen we come to look at the leading idea and main object of the section, in connection with the various provisions which precede and follow it, we do not think this view can be maintained. The leading- idea and chief purpose of this section were not to limit the preceding section, but to provide for the acknowledgment of deeds within the territory, and before officers within the territory; to require such deeds to be recorded, and to prescribe the consequences of a neglect to record. The apparent repugnancy between this section and the preceding, considered with reference to its main scope and professed object, is merely incidental; while to construe it only with reference to the particular words referred to, would create a direct conflict between this section and sections one, six, and seven. The same harmony of transition from one section or one provision to another is, perhaps, hardly to be expected in an act adopted, as this was, from the laws of five separate states, as would be expected in an act prepared and passed, as a whole, by the same legislature. But statutes should always be so construed as to produce the least conflict, and to harmonize, as far as possible, all their provisions.
The construction contended for by the complainant would confine the express general reference in section one (of which we have spoken) exclusively to the deeds mentioned in section two; while it is manifest, we think, that this reference extends also to those mentioned in section six, which latter section obviously includes those mentioned in section seven, as well as those in section two, — and it is admitted that those mentioned in section two are included in section one. Indeed, we think the reference is quite as clear to section six as to section two; as the sixth section is the only one which provides fully the order and manner of recording, and prescribes the effect of the record. If, then, it extends to the deeds mentioned in the sixth section, how can it be claimed not to extend to those mentioned in the seventh, which are included in the sixth?
The same reference of section one just as evidently extends to the second class of deeds mentioned in section four, which, if executed out of the territory, might, as we think, and as complainant’s counsel contend, be acknowledged or proved out of the territory, under the provisions of section seven. And it can not well be doubted that the same class of deeds might also be acknowledged in the territory under section two.
Section seven refers only to deeds executed out of the territory; and is entirely silent as to the manner of executing or attesting such deeds, but makes full and express provision for the mode of acknowledgment, or proof, and • the certificate thereof, when taken in any other state or country — not by adopting the law of the place of execution, but of the place where such acknowledgment or proof may be taken.
We cannot suppose that by the terms “deed or conveyance made and executed” (see section seven) the Legislature intended to adopt a common law deed merely, or the mode of execution at common law. We can see no foundation for such an in_ ference in the language; and there is nothing in the context or general scope of the statute to warrant the inference that they intended to use the terms “ deed or conveyance,” in this section in any different sense from that in which the same terms are used in every other portion of the act. Nor can we suppose, especially in the absence of any language indicative of such an intent, that they intended to authorize the recording of deeds, not only without a witness, but without even the signature of the grantor, neither of which was essential at common law— sealing alone being sufficient.
It may, we think, be safely affirmed that this feature of the common law was never recognized in the territory of Michigan, if in any of the northwestern states; and the construction Which would allow such a deed to be recorded, would certainly violate the rule of construction contended for*by the complainant’s counsel, that the plain and obvious meaning should be 'taken, instead of one only discoverable by professional criticism, for which he cited 23 Pa. St. 242.
Again, as already intimated, a married woman residing out 'of the territory, might, by virtue of section four, either execute and acknowledge her deed out of the territory under section seven, or within it under section two; and the construction contended for by complainant would then make the same word, in the same connection and in the same place, mean a common law deed under section seven, or a statute deed under section one, as. it might happen to be acknowledged within or Without the territory.
But the construction claimed by one of the complainant’s counsel, that this section has adopted, in reference to the execu~ ■tion of the deed, the law of place of execution, is, if possible, still less tenable. The language of the section precludes any such construction. It has not adopted the law of the place of execution for any purpose; while it has adopted, in the most explicit terms, in reference to the acknowledgment or proof, the law of the place where acknowledged or proved. It is but treasonable to suppose that if it intended to adopt the law of the place of execution, that intention would also have been expressed. The expression of the one is the exclusion of the -other.
Now, the execution of the deed, and the attestation by subscribing witnesses — whether it be a part of the execution (as we think it is, under this statute) or not, are distinct from the acknowledgment, and complete -without it. And we see no good reason why a deed executed in the state of New York might not, under section seven, be acknowledged or proved in the state of Pennsylvania or Ohio. In such case, the law of the place of execution and the place of acknowledgment would be different, and the latter only would apply.
But again: Section seven after providing for the acknowl edgment ont of the territory, declares that “ all such deeds and conveyances ” shall be “ as effectual and valid in law, to all intents and purposes, as though the same acknowledgments had been taken, or proof of execution made, within this territory, and in pursuance of the laws thereof.” This necessarily implies that the deed, though executed out of the territory, might have been acknowledged here, and, if so, it must have been under the provisions of section two, as this was the only law under which, any acknowledgment could be taken here; and, in this case,, beyond all controversy, the two witnesses would have been required ; as it is admitted, on all liands, that all the deeds, for-the acknowledgment of which provision is made in section two, are included in, and referred to. by section one.
The conclusions, then, to be drawn from an analysis of the statute, are that the reference in section one extends to the deeds mentioned in section seven; that, consequently, the deeds mentioned in section seven are included among those for the execution and attestation of which provision is made in the first section; and that the seventh section, being silent on the subject of execution and attestation, and only providing for acknowledgment or proof, a deed with but a single witness Avould be of no greater validity for the purposes of registry, when acknowledged out of the territory under section seven, than if the same deed, so attested, had been acknowledged within the territory under section tAvo.
Let us now see if this final conclusion is not expressed in plain and unmistakable terms in the language of section seven itself. After having made provision for the acknowledgment or proof of deeds out of the territory, it adopts the following language already quoted — “ and all such deeds, and conveyances are hereby declared effectual and valid in law, to ah intents and purposes, as though the same acknowledgments had leen taken, or proof of execution made, within this territory, and in pursuance of the laws thereof.”
We are compelled to regard this as a plain and direct Statute enactment of the conclusion at which Ave have already arrived by analysis of the Avhole act.
It declares just liow far such deeds shall be valid; not to all intents and purposes, but to the same extent as if the same ■deed had been acknowledged “in this territory, and in pursuance of the laws thereof.” No reference could be more direct to the provisions of section two of this act, 'which was the ■only law under which the acknowledgment could be -taken in the territory.
The test question then is, Had these deeds from Macy to Dodd and Hoxie, with but a single subscribing witness, been acknowledged in the territory under section two of this act, would they have been valid deeds, for the purpose of registry ? Clearly they would not, since it is not, and can not be, denied that all the deeds for the acknowledgment or proof of which provision is made hi the second section, are included in the first section, and must -be executed according to the provisions of the latter to entitle them to record.
We think, therefore, that whatever doubt might be entertained whether the reference hi section one extends to section 'seven, there can be little doubt that the language of section seven, above quoted, refers directly to section two, and, through that, to section one, for all that is essential to entitle a deed to record, except the acknowledgment or proof, and certificate, provided for in the seventh section. A similar limitation as to validity, and a similar reference to the first two sections of the act, are contained in the latter part of the seventh section,, in reference to deeds previously acknowledged out of the territory.
The language referred to is too plain and explicit, and the whole provision too cautiously worded, especially when twice used in the same section, to have been the result of accident or mistake. At all events, if a mistake, it is one which this court can not correct.
We are, therefore, of opinion that the deeds from Macy to Dodd and Hoxie were not entitled to be recorded; that, though recorded in fact, the record was notice to no one; and, therefore, that Macy and his grantees were barred of the right ■of redemption by the foreclosure suit against Macy alone. For these reasons the decree of the court below, dismissing the bill, must be affirmed.
Martin Oh. J. and Manning J. concurred. Campbell J. did not sit in this case, having been counsel for one of the parties. | [
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Christiancy J.:
The view we have taken of the question presented by the third assignment of error, renders it unnecessary to. determine those raised by the first and second.
' We shall therefore notice the matters covered by the first and second assignments of error only so far as they may tend -to throw light upon the question raised by the third. We think it unnecessary to the decision of the cause to determine whether the copies of the certificates were duly proved as copies, or were admissible as such; because we think the original certificate, with the due preliminary proof of execution, could not, of itself, without evidence almnde, have any tendency to show a partnership of any kind between the plaintiffs. If admissible at all for such a purpose, it must have been in connection with acts of the parties tending to show they had actually gone into business as partners. The only purpose for which such a certificate was authorized by the New York statute was, we think, when the same should be duly recorded, to create a limited partnership under the statute as to third imrsons. We do not think the statute contemplates this as necessarily the agreement or contract of partnership between the parties themselves; certainly not as the only agreement, though doubtless the parties might make it so. But whether the record of this certificate could be admissible evidence for the plaintiffs, for any other purpose than to show a limited partnership restricting the liability of the special partners, may well be questioned; as this would seem to be the only purpose, beneficial to the partners, for which the statute authorized the record. And it is perhaps still more questionable whether the affidavit filed with the certificate, could, if duly authenticated, be admitted for any purpose in favor of the plaintiffs as general partners in this case, to prove the facts set forth in it, any more than if such affidavit had been made on the trial of the cause. But however this may be, the certificate in this case not having been recorded, did not, and was not claimed to, have the effect to create a limited partnership (see PT. JT. JR. 8. Part 2, Title 1, Qhap. 4), and the only natural'and legitimate inference to be drawn from the unrecorded certificate alone, would seem to be that the attempt to create such limited partnership had been abandoned; but we are unable to perceive how this, of itself, without other evidence, could warrant the further inference, or tend in any degree to prove, that the jfiaintiffs had formed a general partnership, or any partnership whatever, or that they had gone into business as partners. It is probably true that this inference of abandonment might have been rebutted by proof of the subsequent acts of the parties, tending to. show they had gone into and carried on business in accordance with its terms; and though the tendency of this evidence might be only to prove them, in some degree, special partners as between themselves, it would, as we shall endeavor to show, be equally available to them in the present suit.
It is also true, that, without the aid, and even in contradiction of the certificate, the plaintiffs might have proved a partnership between themselves, by written or oral proof, by their mode of doing business, joint contribution of capital, participation in profit and loss; or by showing that they actually carried on the business in question ostensibly as partners, and that they recognized each other as partners in the business as between themselves; and it is possible, that such facts might have a greater tendency to prove such partnership when taken in connection with this unrecorded certificate than if considered alone ^without reference to it. The certificate, in this view, might, if properly proved, be admissible as tending to explain such extrinsic facts, and the acts of the parties. But, standing alone, without any extrinsic evidence tending to show that they had actually entered into business as partners, it could not, we think, tend to prove an actual partnership between the plaintiffs; and if no such extrinsic evidence wag given, we think it would have been the duty of the Court to charge the jury that there was no legal evidence from which they were authorized to find the fact of such partnership.
There may have been other evidence bearing upon this point; it Avas conceded on the argument that there Avas some slight evidence of this kind; but the case does not disclose it, and of its precise character we are not informed.
But the partnership was controverted by the defendant; and the charge of the Court on Avhich the third assignment -of error was based, was manifestly, we think, intended to apply, to all the evidence in the caáe bearing upon this question, whatever that evidence might be, and to furnish to the .jury a legal standard for weighing and applying the evidence.
The charge was, that, “If the evidence showed that the plaintiffs had made themselves partners as to third persons, they had, in fact become general partners, and as such were entitled to maintain this action.”
Was this charge correct? The plaintiffs had sued jointly for the wheat; they were therefore bound to show a joint right to, or interest in the wheat as between themselves. They sued as partners, and claimed the joint right or interest in no other way. It was necessary, therefore, to prove a partnership which would constitute such joint right or interest. But, though this joint right would depend upon the fact whether they were partners as between themselves, it was in no way material whether, as between themselves, they were general or special partners, or what was the share of each in the capital, or what special stipulations existed between them, not inconsistent with the existence of a partnership. If partners at all as to this wheat, they would have a joint interest in it, and a joint right of action in respect to it; they would be general partners as to third persons. Had they perfected their arrangement for the creation of a limited partnership, the right of action would have vested in one of the partners only, though, as between themselves, they would still have had’ a joint interest. But it is the statute alone which gives the right of action to the single partner; and in cases not coming within the statute, it is not competent for partners, by any arrangement between themselves, to vary their right of action against third persons, nor'to give the right to one of their members to bring an action hi his own name against strangers. —Radenhurst v. Bates, 3 Bing. 470; Clark v. Howe, 23 Me. 560; Davies v. Hawkins, 3 M. & S. 487, and see Horback v. Huey, 4 Watts, 445. Had the Court charged the jury that if they should find that the plaintiffs went into business as partners under and in pursuance of this certificate, and were so in business at the time this transaction occurred, the plaintiffs would be general partners, and entitled to sue as such, the charge would not have been erroneous if the certificate was properly in evidence, because, as to the distinction between general and special partners, it would have been immaterial, and such a charge would substantially have submitted the question whether the plaintiffs were partners as between themselves, and would not have given to the jury a false standard by which to estimate,the evidence. But this is not the fair import of the charge as given, nor could it have been, we think, so understood by the jury.
Taking this charge in connection with the request in answer to which it was given — and the request maybe looked to for the purpose of understanding the charge, though its refusal is not assigned for error — the effect of the charge is to deny the necessity of showing any partnership or joint right as between the plaintiffs themselves, and to instruct the jury that any thing which would make them partners as to third persons, would enable them to sue and recover as such. This was applying the same rule in all respects to the proof of partnership of plaintiffs, as would be applicable had they been sued as partners'. We do not understand this to be the law, especially in a case like the present. Had the plaintiffs held themselves out to defendant as partners, and had he contracted with them as such in respect to this wheat, they might, perhaps, have maintained an action as partners against him for any thing growing out of the contract, without showing that they were strictly partners as between themselves. — Bond v. Pittard, 3 M. & W 358. Or if the suit had been upon a written contract made expressly with all the plaintiffs as partners, or upon negotiable paper, endorsed in blank, &c., no partnership, perhaps, need be proved. But here the suit is not upon a contract. The defendant is a stranger to the firm. The name of the firm is that of a single individual. The blank acceptances with which the wheat is claimed to have been purchased, were in the name of Charles D. Gibson alone, and the wheat consigned to his name. There is nothing, therefore, in the name of the firm, or in the transaction connected with the purchase and shipment of the wheat, prima facie, to suggest the idea of a partnership; nor, as an act of the parties, can it tend to prove an actual partnership. No doubt a partnership can be proved in such .a case as well as in ordinary eases, though it woidd require evidence at least as strong as that usually required to establish a partnership between plaintiffs. At least, there is nothing to take the case out of the general rule, that the right of action by partners depends upon the contract of partnership as existing between themselves.— Coll. on Part. 3d Am. ed. (by Perkins) §§3, 5, and 6.
The question, whether persons are partners inter se, is to be determined by the understanding and intention of the parties — or, in other words, the contract, as between themselves; and no partnership, as between the parties, can be formed without the assent of every member, and his actual intention to become such. But several persons may become partners as to third persons, and liable to be sued as such, by holding themselves out as partners to the world, or to any particular person with whom they may deal, by verbal admissions and declarations, by acts which niay justify third persons in believing them to be partners, and in a great variety of ways, without any actual partnership between themselves, and even contrary to their own express contracts with each other. These are elementary principles in the law of partnership, and hardly require the citation of authorities.— See Coll. §§ 78 to 98; Pars. Mer. Law, 166; Bird v, Hamilton, Walk. Ch. 361.
Though much of the same kind of evidence usually adduced to prove the partnership of defendants (partnership as to third persons) is often admissible also as tending to show a partnership between plaintiffs (partnership inter se), yet much which would be admissible for the former purpose Would be wholly inadmissible for the latter, such as the naked admissions of the parties; and much, if not most of that which would be equally admissible for either purpose, such as acts of the parties, would have much more decisive weight and significance to prove a partnership against defendants, than to prove the like partnership in their favor if plaintiffs. Mr. Greenleaf in his work on Evidence, vol. 2, §483 speaking of evidence to prove partnership of defendants, very properly says: “The utmost strictness of proof is not required; for though, when they sue as plaintiffs, they may well be held to some strictness of proof, because they are conusant of all the means whereby the fact of partnership may be proved, yet when they are defendants, the facts being less known to the plaintiff, it is sufficient for him ^to prove they have acted as partners, and. that by their habit and' course of dealing, conduct and declarations, they have induced those with whom they have dealt to consider them as partners.”
The question of partnership which should have been submitted to the jury was, whether the plaintiffs were partners as between themselves: the question actually submitted, was, whether they had rendered themselves partners as to third persons; the fair import of which is, that if the evidence was such as would be sufficient 'to render them liable' as partners, it was sufficient to enable them to recover as such. The charge submitted a question not properly involved in the cause; it gave the jury an erroneous standard by which to estimate and apply the evidence, and the verdict does not determine the real question involved, because that question was not submitted to them.
The charge was therefore equally calculated to mislead, whether the certificate was properly in evidence or not,— whether it was the only evidence of partnership, or was accompanied with other evidence tending to show that plaintiffs had gone into business as partners. It is difficult to conceive any state of the evidence (short of the admission of the partnership) in which this charge would not be calculated to mislead.
For this error, the judgment must be reversed, and a new trial granted.
Martin Ch. J. concurred.
Manning J.:
I think the sworn copy of the certificate of partnership was properly admitted to go to the jury. Three objections were taken to it:
1st. “That the paper produced by the witness was not a copy of the whole paper filed with the clerk, the certificates of acknowledgment being essential parts of the instrument,” &o.
2d. “That if the certificate of partnership was not, in fact, acknowledged by the plaintiffs, then, it not being such a paper as the clerk of Erie county was authorized to receive and file in his office, it was not legally in his custody.”
These objections do not very clearly state what I suppose to be the real objection intended. The first objection would seem to be that the certificates of acknowledgment were a part of the certificate of partnership; and the second, that there was no evidence that the certificate of partnership had been acknowledged. As the certificates of acknowledgment are no part of the certificate of partnership, which is a complete instrument in itself without them, and as the witness stated that certificates of acknowledgment were appended to the original certificate of partnership on file, I suppose the objection intended in each case to be this: That the copy should contain a transcript of the certificates of acknowledgment, to enable the Court to determine whether the acknowledgments were taken by proper officers, and in due form; the objection assuming these facts to be essential to the legal custody of the certificate of partnership by the clerk.
The rule requiring the best evidence to be adduced, refers, not to the weight of evidence, but to its quality, when com pared Avitli other evidence to prove the same fact, in possession -of the party, or Avithin his reach by due process of law. The reason of the rule — and it is to that we should look in determining its applicability in a given case- — -seems to be, that when superior evidence is attainable, the law presumes a sinister or improper motive in offering secondary evidence. It can not, on principles of ordinary prudence, othenvise account for a party’s willingness to hazard his case- on such evidence, when that which is more satisfactory and conclusive is at his command. All suspicion, however, is remoAred, and secondary evidence is allowed, provided it be the next best, when it is shoAvn, to the satisfaction of the Court, that, without any fault of the party, the superior evidence is not to be had. Hence oral eAddence is received of the contents of a bond, or other written contract, after proof of its execution and loss or destruction ; or, if it be in possession of the adverse party, after due notice to produce it on the trial, and its refusal; and when a contract, or other writing, to give it legal effect, is required to bo placed in custody of the law, and to be kept at a particular place, and it is shown to be in such custody, as in the case before us; its non-production, I think, is sufficiently accounted for within the reason of the rule we have been considering, to admit secondary evidence of its contents. “Rules of evidence,” says Thompson J., “are adopted for practical purposes in the administration of justice; and must be so applied as to promote the ends for which they were 'designed.”— United States v. Reyburn, 6 Pet. 367.
If the object of plaintiffs had been to prove a partner■ship under the statute, the form of the acknowledgments, and the officers before whom they were taken, would have been material to enable the Court to determine Avhether the act had been complied with. As the evidence, however, was not offered with that view, but to prove a partnership outside of the statute, the only question was whether a sufficient shoAving had been made to admit secondary evidence. Did the evidence offered for that purpose show the certifi cate of partnership in the legal custody of the clerk of Erie county? I think it did. The law relative to the reception and filing of papers, and the subsequent power of the officer over them, I understand to be this: He may refuse to receive them when they are not properly authenticated, and, if he err in refusing them, the injured party may compel their reception by mandamus: That, when received and filed, they cease to be private papers, and become public records; and. that the officer can not afterwards, by any act of his, divest the public of its interest in, or control over, th.em.. His sub-, sequent powers are those of a custodian only. He can not undo what he has already done. , Such a power would be extremely dangerous, in such an officer, and, if sanctioned by law, would open a door that might be used for the worst off purposes. It was therefore immaterial whether the certiii-. cate of partnership should, or should not, have been received and filed in the first instance, as it was acknowledged, and the requirements of the law seem to have been complied with, in form, if not in substance; for, admitting the officer-erred in receiving it, it was still in his official custody.
The third objection was, the certificate did not tend tQv prove a general partnership. I think it did, and shall notice, this objection more particularly hereafter.
The plaintiffs next offered in evidence, duly authenticated under the act of Congress, a copy of the certificate of part-, nership, with the certificates of acknowledgment, and a copy of an affidavit of Charles D. Gibson, stating that the capital mentioned in the certificate had been paid to the partnership;. the statute requiring such an affidavit to be made and filed, with the certificate. The evidence was objected to, and an exception was taken to the ruling of the court admitting it,.
1st. Because the act of Congress of 1804, providing for the authentication of office books, does not extend to “files”— to papers “ filed, but not recorded.”
I have already stated that when contracts, or other writings, to give them a legal effect they would not other wise have, are required by law to be deposited with, and to be kept by, a public officer, they are, when so deposited, in 'custody of the law; that the public has an interest in them; and that they cease to be private papers, and become public property. And when they come in possession of the officer in strict compliance with law, they are, in my opinion, public records within the meaning of the Constitution of the United States, and of the act of Congress of 1804. They are memorials of acts affecting the public, and for that reason are required to be placed in its keeping. The public interest is asserted by the law in requiring the deposit. The act of Congress, it is said, does not extend “to papers filed but not recorded.” I see no ground for the distinction. Enrollment is not essential to a record. The files and journal entries of our courts are the only records we have of their judgments — the common law judgment record having been abolished. The objection admits, that if the certificate had been recorded, that is, transcribed into a book, the -transcript Would be a record within the act. When the original is to be permanently left with the officer, and is not deposited for ■recording only, I see no good reason for the transcript being ¡a record and the original not; or why a copy of the former, Which is itself but a copy, should be better evidence than a ■copy of the original.
The second objection is, that as the statute of New York required the certificate to be recorded, and it was not, a copy of it Could not be made evidence. Why not evidence? Because it was not recorded, and therefore was no record; and not being a record, could not be exemplified under the act of Congress. Viewed in this light, for I can not see its bearing in any other, this objection is a repetition, in a roundabout way, of the one I have just been considering, and is already answered.
The third and fourth objections were abandoned on the •Argument.
The fifth objection is “That the acknowledgment of the certificate by Charles D. Gibson and Amasa Mason does not appear to have been made before an officer authorized by the law of New York to take the same.”
The acknowledgment was before a commissioner of deeds,,, who is not one of the officers named in the act authorized to take the acknowledgment. By a subsequent statute, which was in evidence, it might be taken by any officer authorized to take the acknowledgment of conveyances of land; but no.. statute was in evidence showing commissioners of deeds could take such acknowledgments. For that reason, we are asked to reverse the judgment, and send the case back to-the court below for a new trial. If the acknowledgment was not before a proper officer, the certificate is no record 5 and if not a record, it could not be exemplified under the act Congress. The question is of no importance as it respects, the certificate of partnership, for that was already in evidence, and a subsequent error in admitting a second copy would not vitiate the prior evidence. It is important, how-, ever, as it respects the certificates of acknowledgment and the affidavit of Gibson. At first view it seems a little sur-, prising that plaintiffs’ attorney, with the Revised Statutes of" New York in his hands, should not have turned to the law-authorizing commissioners of deeds to take acknowledgments;, of conveyances of real estate. But on looking into the bill of exceptions, it is obvious to my mind how the omission occurred. The statute providing for limited partnerships, was the only statute of New York in evidence when the objection, was made and overruled. After the evidence had been re-, ceived, and not before, as appears from the bill of exceptions, the statute was introduced and read in evidence, authorizing the acknowledgment to be taken by officers empowered to take acknowledgments of conveyances of real estate. This,, undoubtedly was supposed at the time to be a complete-answer to the objection, more especially as the name, commissioner of deeds, would of itself seem to indicate the duties of the office, and as no further objection was made. If defendant was not satisfied with it as an answer, he should have renewed Ms objection, varying it to suit the new aspect of the ease, and pointing out particularly the still existing defect, that plaintiffs might obviate it by further testimony, if in their power. Not having done so, he must be considered as having assented to the sufficiency of the evidence for that purpose.
There is another reason, equally conclusive with me, why the judgment should not, on this account, be disturbed. When the error is one for which a new trial will not be granted, there would be an absurdity in reversing the judgment. In Duncan v. Duboys, 3 Johns. Cas. 125, the Court refused to grant a new trial because the printed statute book was read in evidence of a private act, when, from an exemplification of the act, it appeared the printed book was correct. In High v. Wilson, 2 Johns. 46, which was an action of trespass for taking goods, defendant justified as sheriff, under an execution against one Blanchard. On the trial it was objected, that defendant, to make out a justification under the execution, must prove the judgment on wMch the execution issued. The objection was overruled; and a verdict having been rendered for defendant, plaintiff moved for a new trial. On the motion, the judgment record was produced, and the Court refused a new trial, although the judge erred in admitting the execution in evidence without proof of the judgment. — See Burt v. Place, 4 Wend: 591; Watson v. Delafield, 2 Cai. 224. In these cases the admissibility of the evidence depended on the existence of a record that was not produced and proven at the trial; and the subsequent motion for a new trial failed, on the record being produced, as the truth of it, had it been used on the trial, could not have been controverted. In the case before us the objection is, that the evidence should not have been permitted to go to the jury, because the plaintiffs did not produce a statute of the state of New York authorizing commissioners of deeds to take acknowledgments of conveyances of real estate. May not this Court now look into the statutes of that state to see whether there is such a law? I have no hesitation in saying we may. We have a statute declaring’ printed copies of the statutes of sister states, “if purporting to be published under” their authority, “shall be admitted in all courts, and in all proceedings within this state, as prima facie evidence of such law.” — Comp. JO. §4315. The question, If purporting to be published under authority of the state, is a question for the Court to decide, upon inspecting the printed copy. It is not, under the statute, a question of fact for the jury; and it seems to me we may look into the statutes of New York to decide a question of law, made on the trial under a statute of that state, in the same way we would look into our own statutes to decide a question raised under them. When the statute is one of a sister state, it should be produced and read on the trial for the information of the Court, which is not supposed to know the statute laws of other statesbut if it is not, and the decision is in conformity with the statute, it is not a good ground for reversing the judgment. We are as well prepared now, after having looked into the statutes of New York, to decide a commissioner of deeds could take the acknowledgment, as we would be had the statute been read on the trial; and under such circumstances, it would be sacrificing substance to form to send the case back for a new trial.
The sixth and last objection is, that “there is no provision in the law of New York by which a limited partnership can be converted into a general partnership, until after the record of the certificate and affidavit; and, as these papers are shown not to have been recorded, no limited partnership could have been proved; hence the papers offered do not even tend to prove the existence of a general partnership between the plaintiffs.”
It is a sufficient answer to the first part of this objection, to say that the evidence was not offered to prove a limited partnership, or that such a partnership had afterwards become a general partnership. The latter part of the objection — that the papers do not tend to prove a general partnership — is a repetition of the third objection taken to the sworn copy; which I have already answered in part, and shall hereafter liotiee more fully.
Three exceptions were taken to the charge of the Court. The first was waived on the argument. The other two are as follows:
The Court was asked to charge the jury, “That in order to recover as plaintiffs, the plaintiffs must show a right as between themselves, to do so, and are hound by the agreement made among themselves.” The Court declined so to charge, but charged the jury that if the evidence showed that the plaintiffs had made themselves partners as to third persons, they had, in fact, become general partners, and, as such, wore entitled to maintain then action. To which refusal and charge, the defendant excej>ted.
The error assigned on this part of the record is, that the circuit judge erred in charging the jury that if the plaintiffs had made themselves liable as partners to third persons, they had become partners in fact, and were entitled to sue as such.
The charge was erroneous, in stating that if plaintiffs had made themselves liable as partners to third persons, they might sue as partners. To sustain an action as partners, plaintiffs must be partners in fact. A partnership must actually exist between them, and they must have a joint interest in the subject-matter of the suit. Two or more persons Who are not partners, by holding themselves out to the world as partners, will make themselves liable as partners to persons deceived thereby into dealing with them as partners. Though not partners in fact, the law, in such circumstances; to prevent fraud, imposes on them the liability of partners. The evidence of a partnership in such cases is not of a positive and direct character, but circumstantial only — that is, it is not of a partnership in fact, but of circumstances from which a partnership may be inferred — and the evidence may be such as not only to warrant a verdict of partnership as to third persons, but of a partnership in fact; the only difference being, the evidence should be stronger to find a partnership in fact, than to warrant a verdict of partnership as to third persons only. There was nothing in the character of the evidence before the jury, so far as it appears from the bill of exceptions, calling for this discrimination in the charge of the Court.
The error was in charging the jury on a rule of law having nothing to do with the case. The evidence was of a partnership in' fact, and not of circumstances only from which a partnership might be inferred. I do not see how the jury on this part of the case, could have rendered a different verdict from the one they did. The evidence consisted of a written admission of the partnership, signed by all of the plaintiffs, and acknowledged by them before an officer authorized by law to take the acknowledgment. It states they had formed a limited partnership, under the name or firm of Charles D. Gibson, and that William Mason had contributed fifteen thousand dollars capital, and Amasa Mason ten thous- and dollars. It also states the business to be transacted by the partnership, and that the partnership was to commence on the 10th of March, 1853, and to terminate on the 10th of March, 1858. The certificate is dated on the 7th of Mar oh, 1853. It was acknowledged by William Mason on the 10th of that month — the day the partnership was to commence; and by Amasa Mason, and Gibson, on the 14th, or four days afterwards. On the last mentioned day, Gibson made an affidavit that the capital mentioned in the certificate had actually, and in good faith, been paid in cash; and three days thereafter, that is, on the 17th day of March, the certificate and affidavit were filed with the clerk. If these acknowledgments and acts of the plaintiffs — all of which took place long before the transaction giving origin to the present suit — • are not evidence in their favor, it is not easy to comprehend _the legal principle admitting articles of partnership as such evidence.
It is objected that the evidence consists -wholly of plaintiffs’ admissions; and that, although such admissions are evidence between themselves, as well as in favor of third persons, of a partnership, they are not evidence in their favor against third persons. The admissions are something more than dry, naked declarations: they are a part of the res gestae — part and parcel of acts done by plaintiffs, in pursuance of law, with a view to limit the liability of two of the partners. They are found embodied in a certificate which the law requires shoidd eim brace them, and which, without them, would be nugatory, Starkie on Evidence, vol. 1, p. 52, says: “In general, where the evidence is offered as a mere fact which is connected with the matter in dispute, and not with a view to affect the party, otherwise than as the actual existence of the fact affects the nature of the transaction itself; then, although it was a transaction between others, yet, as a mere fact, and part of the res gestee, it is evidence. Suppose, for instance, that goods consigned by A to B are injured by the defendant while they are in the hands of the carrier; in an action for the wrong, brought either by A or B, according to the circumstances, it would be competent to either of them, being plaintiff, to establish Ids right of property in the goods, by proof of such an agreement between them, as either loft the right of property and of action in himself, or vested it in him, by the delivery to the carrier; this would bo, it is true, nothing more than an agreement between A and B to which the defendant was not privy, but it would be evidence against him, not as concluding any right of his without his assent, but as affecting the nature of the transaction itself, and showing to whom the injury was done.”
If the certificate was to be treated as an admission only, I shoidd still hold it competent evidence for plaintiffs of a partnership. An admission by A that he and B are partners, is evidence against A of such partnership in favor of B or a third person, but it is not evidence against B. If it were, it would be in A’s power to subject B and his property to the payment of A’s debts;- — -nay, more, it would enable A to claim an interest in B’s property, by declaring the existence of a partnership between them. The sole object of the rule is to protect B against the dishonesty of A. Now it is clear, the reason of the rule does not apply to admissions made by both A and B, or by all of the partners; and where the reason of a rule of evidence ceases, the rule itself is of no force. To apply it in such a case would impede the administration of justice, by throwing as an obstacle in its way what was intended only to rid it of impurities. Such an admission is evidence of a partnership in fact, because made by all of the partners — the admission of each one concluding him individually; and á partnership in fact, is a partnership as to all the world. There is no such thing as a partnership between the parties themselves, and not as to third persons. It is not essential to a partnership that it should be public, or known to the world. All rights acquired, and all debts incurred, by it, are partnership rights and liabilities, whether the persons dealing with it had notice of the partnership or not. If ignorant of its existence at the time, a subsequent discovery works no injury to them: if creditors, it gives them a larger number of persons to whom they may look for payment: if debtors, their liability is not increased, as it is matter of no moment to them whether a sum of money they are owing, when paid, goes to one or more persons, so long as they can not be called on to pay a second time.
In the case before us, the partnership business was to be carried on in the name of Gibson, and the wheat in controversy was purchased in his name. Admitting the Avheat belonged to him individually, the judgment record will bo a bar to any future action by him, as he is one of the plaintiffs.
When several persons are jointly interested in a contract the action must be brought in the name of all, or the plaintiffs will be nonsuited on the trial. It was to bring themselves within this rule of law — to show a joint interest,in the wheat between themselves, and not their right to it against defendant, that made it necessary for plaintiffs to prove the partnership. The question of partnership affects defendant in no way except as to the form of the remedy against him; viz. whether the action should be in the name of Gibson alone, or of all the plaintiffs. It has nothing to do with the right to the wheat between him and plaintiffs; and, however determined, makes nothing against his right, or that of any other person, to the wheat. It is a question of right as to the wheat between the plaintiffs alone; and the right being established as between them, the form of the remedy follows as a necessary incident. Hence, “a father who holds out to the world that his son is his partner, and who sends bills and signs receipts in their joint names, in an action brought in his own name, is not precluded from proving that his son is not a partner.”— Glossop v. Colman, 1 Stark. 25 (2 E. C.L. 279); Kell v. Nainby, 10 B. & C. 20 (21 E C. L. 17).
Did the certificate tend to prove a general partnership? At common law, all partners are alike liable for the debts of the firm. The only difference between, a common law partnership and a limited partnership under the act (for they are both partnerships) is, that in the latter the liability of some of the partners is limited to the capital invested by them in the partnership. This is a personal privilege, conferred by the statute when its provisions have been strictly complied with, but not otherwise. In the case before us the act was but in part complied with. The cer, tifieate was made and acknowledged, and, with the requisite affidavit, was filed. But it was not recorded. Why it was not, does not appear. It may have been from various causes; as ignorance of the law requiring it to be recorded, or negligence in not paying the clerk for making the record, or a subsequent determination not to claim the benefits of the act. From whatever cause, it did not put an end to the partnership, but left it as if nothing had been done under the act • — • an unlimited partnership, or partnership at common law. Gibson, who was to be the general partner, and in whose name the business was to be done, states, in his affidavit filed with the certificate, that each of the other partners had “ actually and in good faith paid in cash” the sum named in the certificate to have been contributed by him. The partnership was then launched, if not before, and there is no evidence of a subsequent dissolution.
As the error in the charge was on a point of law not involved in the case, and could not have injured the defense, I think the judgment should be affirmed.
Campbell J. did not sit in the case, having been counsel for one of the parties.
Judgment reversed. | [
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Christiancy J.:
The principal question in this case arises upon the construction given to the lease, in the charge of the court helow to the jury, which was, “That Norris was not bound by the terms of the lease to call for that portion of rent payable in board, as the same became due, and within the year, but was at liberty to call for the same in board at any time; and if Evans refused to pay the same in board when demanded, that then Evans was liable to pay the plaintiff the amount in money; and that if the defendant wished to avoid the payment of the rent in money or board at any future period, it was the defendant’s duty to notify Norris that he was ready to board any person sent by him, and demand that Norris should send boarders there within, the time prescribed by the lease.”
We think this charge was erroneous, and not warranted by a fair construction of the lease. The provision for taking half the year’s rent in board “as the same falls due,” applies, we think, exclusively to the first year’s rent; and such, on the argument, was admitted to be the express Words of the lease, though the word “first” is omitted in the record. As it applies only to the first year’s rent, it is quite evident, from the whole instrument, it should be read in connection with the covenant for the payment of the rent of that year, and as a part or qualification of that covenant, and clearly implies the assent and obligation of Evans to pay in that way, as much as that of Norris thus to receive it.
It is not optional with Evans to pay in money or board. He would not be at liberty to refuse the board; and though such refusal might render him liable to pay the money, it would be as damages (and not necessarily as the entire damages) for the breach of the contract. The cases cited by counsel for the defendant in error, as to the right of election to pay in one of two ways, do not therefor apply.
By any fair construction of this lease, we think Norris was bound to call for that portion of the rent payable in board, within the year, and substantially as the same became due; that he could not claim the whole board during a single month, nor any part of it after the expiration of the year, which would be entirely outside of the contract. — Clement v. Clement, 8 N. H. 215. Having a right wholly to refuse to board after the year had expired, he might, if he chose to board at all, make such terms, and impose such conditions, as he pleased.
The fair import of the whole contract is, that the board was to be furnished at the hotel to' be kept by the lessee; and it would be a most unnatural perversion of the instrument which should extort an inference that Evans was required to furnish it elsewhere. No other place is mentioned; the furnishing of board is one of the ordinary uses to which hotels in this country are applied.
It would be equally extravagant, we think, to infer a duty on the part of Evans to call upon Norris and demand that he should send the boarders. He had contracted to receive half the rent in board, and was entitled to it in no other way. His own interest ought to be sufficient to prompt him to notice his rights and obligations under his own contracts.
The charge was therefore erroneous, and tended to mislead the jury to the injury of the defendant.
There are other errors assigned upon the charge, but as all those which are presented with sufficient clearness grew out of, and are included in, the one already noticed, it is not necessary to notice them here.
The judgment must be reversed, and a new trial granted.
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‘’Campbell J.:
In this case, a motion is made to dismiss, on the ground that there is no case properly before the Court.
The cause could properly come into this Court for review, lipón a certificate of the clerk, in one of two methods: First, If it is a case agreed upon in the court below before judgment, under the statute; or, Second, If it is a case made and settled by the judge after judgment.
It is very evident that there was no case agreed upon before judgment, in the sense of the statute. That contemplates something which must be filed, and which can be certified by the clerk. The rules have always provided that 'no stipulation shall be binding unless reduced to writing •and signed by the parties or their attorneys. And any other construction of the statute would leave the whole matter open to dispute.
Is the case filed, a case settled after judgment according to the statute and the rules? It does not on its face '¿how, conclusively, or necessarily, that it was so intended. But in the absence of any thing tending to throw doubt upon its character, we should not be disposed to reject a paper >of this kind upon any technical niceties of form only. But we are not prepared to hold that if a clerk should certify up a paper of an ambiguous character, no showing can be allowed to inform us what it really is. Our jurisdiction ■can not be concluded by any such dubious acts.
In the present case, 'the judge who tried the suit, and whose name is attached to the document certified up, has informed us, by his certificate, that he never put his name to 'any thing which he supposed to be a settlement of a case under the statute, and that this instrument is imperfect in not "setting forth the whole facts as they existed. Objections are made to the reception of this certificate, and affidavits •"are offered to contradict it.
In the case of Sweetzer v. Mead, 5 Mich. • 33, we had
occasion to consider the power of a judge of the circuit court to amend his finding, and we held that he could do so in his discretion. The practice of allowing amendments, either-before or after error brought, to apply verdicts to the counts, under which the evidence was all offered, has prevailed in England and in this country. In the case of Clark v. Lamb, 8 Pick. 414, such an amendment was allowed upon the judge’s certificate, after error brought, and when the effeet of' the amendment was to cure the error which was alleged in the appellate court. In that case, and in Mathison's Adm'rs v. Grant's Adm'r, 2 How. 263, a number of authorities are-cited, which show how universally courts have endeavored to preclude, in this way, errors of haste and inadvertence,, whereby, if not rectified, substantial justice would be defeated; and the cases show the same doctrine to apply in other cases of mistake or inadvertence. The case of Richardson v. Mellish, 3 Bing. 334, 336, 7 B. & C. 819, and 9 Bing. 125, is. very much in point. See also Ex, parte Justices of the County of Essex, 15 Eng. L. & Eq. 571.
We think the certificate of the judge is entirely proper; .and that upon receiving such a notification, it is our duty,, whether requested by counsel or not, to remit the papers, to the clerk of the court below, for such action as they may require. — 3 Bing. 334. The certificate is sufficient evidence, that the document filed was not intended by the judge to-be regarded as a settled case, and does not contradict the former certificate. Upon such an intimation, we have no hesitation in ordering the papers to be sent back. The parties. •can take such steps in the court below as that court shall 'determine to be proper under the circumstances.
Let an order be entered remitting the papers to the clerk 'of the Circuit Court for the county of Genesee, for the further action of that court.
The other Justices concurred.
As to the general power of amendment after judgment, see Emory v. Whitwell, post; after error brought, or appeal, Short v. Coffin, 5 Burr. 2780; Vslier v. Dansey, 4 Maule & S. 94; Petrie v. Hannay, 3 T. R. 659; Tillotson v. Cheetham, 3 Johns. 95; Cunningham v. Fontaine, 25 Ala. 644. That amendments must be made, in such a case, by the inferior tribunal, Hutchinson v. Crossen, 10 Mass. 251; Cooper v. Bissell, 15 Johns. 318; Rowell v. Bruce, 5 N. H. 381; True v. Plumley, 36 Me. 466; Scribner v. Gay, 5 Mich. 511; Evans v. Norris, ante p. 69. And the papers may be re-, manded for that purpose. — Ibid.
A justice of the peace can not amend a judgment rendered by himself, even to correct an error of computation in rendering it (People v. Delaware Com. Pleas, 18-Wend. 558); though he would have the power of amendment in the same mannor. as courts of record, before judgment.— Near v. VanAlstyne, 14 Wend. 230. | [
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Manning J.:
The defendant’s motion is to quash the assignment off errors, and to dismiss the writ of error.
The error assigned is one of fact, viz., the death off John P. Wetherell before the suit was brought.
The motion is placed on several different grounds:
1st. A want of jurisdiction, in this court, of errors off fact;
2d. That errors of fact are cognizable only in the court. rendering the judgment, which in this cas^ is the Wayne Circuit Court;
3d. That errors of fact can not be assigned on the writ of error in this case, which is a writ for errors of law, and not for errors of fact.
In support of the first ground, it is urged this court is a court of appellate jurisdiction, and therefore can not, on a writ of error, hear and determine any question that was not before the court below, and could not have been heard and determined by it. And we have been referred to adjudications in the state of New York on the jurisdiction of the late Court of Errors of that state, and to the English Exchequer Chamber, and House of Lords, in which it is said errors of fact can not be assigned on a writ of error. There would be much force in the argument if this court was an appellate court only. It has original, as well as appellate, jurisdiction given to it by the Constitution. Section three of article six is in these words: “The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.”
It was further said on the argument, that the Legislature had made no provision for the trial in this court of issues of fact, except in cases of informations in the nature of a quo warranto, and that the court has no means of trying an issue of fact in error. The jurisdiction of writs of error is plenary as given by the Constitution; it extends to all errors — to errors of fact as well as of - law — and stands in need of no legislative action to make it operative. The Legislature may regulate the proceedings and practice of the coxu’t, but this is in no way essential to the exercise of the power. In the absence of legislation, the Constitution, in giving the power unconditionally, impliedly gives all the cimmou law means of executing it. If necessary, a venire may be issued for a jury to try the issue of fact in this court, or it may be sent to the proper circuit for trial. The same objection was taken in this court, as organized under the old Constitution, on an information in the nature of a quo warranto against the Erie and Kalamazoo Railroad, and it was held that the court might issue a venire to try an issue of fact, if one should be formed in the case.
This was before the statute for the trial of issues of fact in cases of information, referred to, was passed. In 6 Wend. 32'?, the Court of Errors of the state of New York, refused to permit an assignment of errors in fact, on the ground of want of jurisdiction; and it is put on that ground in 10 Wend. 51, where the Chancellor says the plaintiff should have brought a writ coram vobis in the Supreme Court. A want of jurisdiction, we presume, *8 the true reason why errors of fact can not be assigned in the Exchequer Chamber or House of Lords, and not the one sometimes to be found in the books, viz. that they can not try an issue of fact. A release of errors may be pleaded in either of these courts, and there must be some way of trying it when the truth of the plea is put in issue.
2d. As to the jurisdiction of the circuit court. The Constitution and statutes defining and limiting its jurisdiction do not give it power in any case to issue a writ of error, and without this power, a writ of error coram vobis, issued by that court, would be void. — 20 Johns. 22; 14 Ibid. 422. And if it had the power, it would not oust this court of its jurisdiction.
3d. The next objection is that errors of fact can not be assigned on the writ of error in this case, because, it is said, the writ is one for errors of law, and not for errors of fact. This objection goes on the ground that errors of fact can not be assigned on the common writ of error. We have no doubt they may be assigned on such writ, when the court has jurisdiction of this class of errors as well as of errors of law. Binns v. Pratt, 2 Chit. R. 369 (18 Eng. C. L. 109); and Castledine v. Mundy, 4 B. & Adol. 90 (24 Eng. C. L. 30), are writs of error in the King’s Bench, on judgments of the Common Pleas, in which errors of fact were assigned, and sustained by the court. And Maynard v. Downer, 13 Wend. 575, Camp v. Bennett, 16 Wend. 48, and Arnold v. Sandford, 14 Johns. 417, are writs of error in the Supreme Court of the state of New York, on judgments of inferior courts, for errors of fact. If this class of errors could be corrected only on writs of error coram nobis, or coram vobis, the party in many cases would be remediless. The case before us is one of this description, if the error can not be corrected in this court; for the circuit court, as we have already shown, has not power to issue such a writ.
There appears to be much confusion and great want of discrimination in the books, as to the distinctive features and appropriate offices of a writ of error, a writ of error coram nobis, and a writ of error coram vobis. When the object of the writ is to remove a judgment from an inferior into a superior court, for review, and the correction of errors of law-or fact, it is called a writ of error only —nothing more. But when the object of the writ is to correct an error’ of fact in the same court that rendered the judgment, it is called a writ of error coram nobis If it be in the King’s Bench, and a writ of error coram vobis if it be in the Common Pleas.
A writ of error is an original writ, and hi England Issues out of the Court of Chancery, and runs in the name of the king. With us, it issues from this court, and under our present judicial organization can issue from no other. It is “in the nature, as well of a certiorari to remove a record from an inferior into a superior court, as of a commission to the judges of the superior court to examine the re cord, and to affirm or reverse it according to law.” — 2 Saund. 101 a. The writs coram nobis and coram vobis differ from a writ of error in two particulars: 1st. They contain no. certiorari clause, for there is no record to be certified,' 2d. They have no return day, as they are in the nature of a. commission only to the court to correct error. They lie for errors of fact, and for errors in the process, or through the default of the clerks. — 1 Arch. Prac. 234. They do not lie when the error is in the judgment of the court itself, and not in the process.— 1 Arch.- Prac. 235. The writ is called a writ of error coram nobis in the King’s Bench, because the record and proceedings are stated in the writ to remain before us (coram nobis); that is, in the court of King’s Bench, — 1 Arch. Prac. 234; 2 Saund. 101 a. The king, by a fiction of law, is supposed to preside in person in that court. In the Common Pleas, where the king is not supposed to preside, it is called a writ of error coram vobis, because the record and proceedings are stated in the writ to remain before you (coram vobis); that is, the king’s justices.— 2 Ticld Prac. 1056, note y. See a writ of error coram vobis in the Common Pleas in Arch. Forms, 243; 2 Punlap's Prac. 1125. In the King’s Bench, the writ coram nobis also lies on the judgment of- an inferior court, after the record has been removed into that court by a writ of error that has been quashed, or has abated — the writ in that court, in such case, answering all the purposes of a second writ of error. The reason of this is, that the record of the inferior court, and not a transcript of the record, is returned, or is supposed to be, although a transcript only is sent up. Saunders says, “ The record itself is supposed to be removed, that it may remain as a precedent, and evidence of the law in similar cases.” — 2 Saund. 101 m. But a writ coram vobis will not lie in the Exchequer Chamber on the abatement of a writ of error there. “If a writ of error brought in the Exchequer Chamber upon a judgment in the King’s Bench abate by death or otherwise, no writ coram nobis (vobis) lies there, for the record itself is not removed there by the writ of error, hut only a transcript; and therefore there must be a new writ of error.” — 2 Saund. 101 b. The judgment for plaintiff for an error of fact on a writ coram nobis or coram vobis is, that the judgment he revolted; on a writ of error, that it be reversed.— Camp v. Bennett, 16 Wend. 48.
Other objections were urged on the argument; as the uncertainty of the assignment of errors; that it does not conclude with a verification; that it prays the judgment may be reversed; and-the like. Whether any or all of them he well or ill taken, it is not necessary for us now to decide, as they relate to the pleading, and not to the jurisdiction of the court, and are no ground for quashing the assignment of errors, or dismissing the writ.
Defendant’s motion must be denied. Plaintiff having made a cross motion for leave to amend, ten days are given Mm to withdraw his assignment, and file and serve a new assignment of errors on defendant’s attorney. All subsequent pleadings to be filed under the rules of court. Neither party to have costs.
The other Justices concurred. | [
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Martin Ch. J.:
The first question presented in this case is, whether, after goods transported by the Railroad Company have arrived at their place of consignment, and have been deposited in such Company’s warehouse, according to the usual course of business, the Company’s liability, from the time of so depositing them, would be that of warehousemen, or that of common carriers. The consideration of this question necessarily involves that of the second presented in this case, viz., the construction and effect of the sixteenth section of the Company’s charter, — as this last contains really no independent proposition, but, as suggested by defendants’ counsel, rather assigns a reason in support of the first. We will, therefore, consider the two as one.
The fifteenth section of the charter provides that “It shall and may be lawful for the said Company, from time to time, to fix, regulate, and receive tolls and charges taken for transportation of property and persons on said railroad as aforesaid, and for the storage of property remaining in the depots of said Company, if not taken away as hereinafter provided,” &c.; and the sixteenth section provides that “The said Company may charge and collect a reasonable sum for storage upon all property which shall have been transported by them, upon delivery thereof at any of their depots, and which shall have remained in any of their depots more than four days: Provided, That elsewhere than at their Detroit depot, the consignee shall have been notified, if known, either personally, or by notice left at his place of business or residence, or by notice sent by mail, of the receipt of such property* at least four days before any storage shall be charged, and at the Detroit depot such notice shall be given twenty-four hours (Sundays excepted) before any storage shall be charged: but such storage may be charged after the expiration of said twenty-four hours upon goods not taken away; Provided, That in all cases the said Company shall be responsible for goods in deposit in any of their depots, awaiting delivery, as warehousemen, and not as common 'carriers. And if said Company shall charge or take any re- numeration for storage of goods otherwise than as aforesaid* it shall forfeit and pay to the State of Michigan, in each case* for so doing, the sum of fifty dollars.”
These sections determine the question when the liability of this Company as common carriers ceases, and as warehouse-, men commences. Were it to be settled by the rules of the common law, much difficulty might be experienced in determining it — a conflict existing- as to whether notice is, or is, not, necessary; or whether the lapse of time wherein the con-, signee, by the use of diligence, might remove Ms property* is, or is not, necessary; or whether any, and what, reasonable time is allowed him in which to remove his property before-the Company can he released from their liability as carriers. But we apprehend the rules of the common law can have no operation upon this question; and it is the resort to these rules, and the attempt to interweave one or the other of them into this charter, and so fix the liability of the Company, that has given rise to the doubts which surround it. The late Supreme Court, in the case of this Company v. Wardy (2 Mich. 538), held, that notice of the arrival of the property, and the lapse of the time allowed for its removal, were necessary, both by common law and under the charter, and that property could not be considered as awaiting delivery* within the meaning of the proviso to the sixteenth section* until after the expiration of the time limited for -its removal. But, whether notice is required, or the use of diligence by the consignee, or whether neither, but the lapse of a reason able time, after arrival for its removal, is allowed, or all, in the absence of any provisions in the charter upon the subject* becomes immaterial when such provision exists.
The necessity of a notice before the right to charge for-storage arises, is clearly determined by the sixteenth section, and the imposition of a forfeiture of fifty dollars, if it should be charged, or any remuneration taken therefor, except as therein authorized, seems to indicate that the charging for storage was the paramount subject of the section, and that the proviso Avas inserted to avoid the presumption that the liability of the Company as carriers should continue until notice, or removal of the property, or any period of time after the property had been transported and deposited for delivery.
The fifteenth section empoAvers the Company to fix, regulate and receive tolls upon all goods remaining in their •depots, if not taken away within the time fixed by section sixteen. This time is twenty-four hours Avhen goods are in the Detroit depot, and four days if at any depot elsewhere, after notice of their arrival shall have been given. But, has the notice any effect upon the liability of the Company ? It ■is claimed by the defendants in error that it has; because, 1st, The liability of carriers only ceases when that of warehoAisemen commences ; and they claim that this is Avhen the right to charge for storage commences: and, 2d, Because the Company are liable as carriers until the property is “awaiting delivery,” which, as they insist, is not until after notice, and the lapse of the time limited for their removal without charge for storage.
But is it true that the Company can not be warehouse-men unless the right to charge for storage exists?
That no interval can elapse between their laying doAvn the character of Carrier and assuming that of warehousemen is true, • — ■ and these characters are defined by the liabilities as Avell as by the rights attached by laAv to them. The right to charge storage is an incident to that of warehousemen, and, ■unless restrained by law, exists from the moment of the 'deposit of goods in a warehouse; but a restraint of this right ‘does not divest the warehouseman of his character any more than the imposition of any other restraint upon his business Avould.
This Company are created a railroad and transportation company, and are consequently Common carriers; but the Legislature, presuming that property, after transportation, might remain a longer or shorter time in their possession before being removed, regards their depots as warehouses, and recognizes them as being warehousemen for goods thus remaining therein, but imposes upon them the duty of notifying the consignee of the arrival of his property, if they would make such continued possession the foundation of a right to charge for its storage. It nowhere, by express words, creates them warehousemen, but it recognizes them as such in re-, gard to property deposited in any of their depots, awaiting delivery, and restricts their right to charge for storage of such property, notwithstanding it may be thus deposited, un-. less notice shall have been given. Accordingly, as we have seen, by the provisions of section fifteen they- are empowered to receive tolls upon goods received into their warehouse, unless taken away under the conditions and restrictions contained in section sixteen; but lest these should be construed as extending their liability as carriers until the right to re-, eeive tolls should arise, or leave, in doubt the time, when such liability changed to that of warehousemen, it is provided that, "notwithstanding this disability to charge for storage for a limited time, the character of warehousemen should commence at the time, when the goods are deposited in the depot and ready for delivery. This is what is meant by the words “awaiting delivery.” By this, we do not mean to be understood that the mere deposit of goods hi the depot is sufficient.
The facts of this case show, however, that the property was not only deposited, but in a situation to be delivered when called for; and being in, such situation, they were within the proviso. Now, property is “awaiting delivery” as soon as it is in a situation to be delivered over to the consignee, when demanded; and such must be held to have been the view of' the Legislature, unless we can suppose that two rules of liability were intended, — one respecting goods in the Detroit depot, and another respecting goods in a country depot. For such a distinction there is no apparent reason, and the very inequality of the. rule contended for, shows that none such. Was in contemplation of the parties to the charter.
It was urged (and such was the decision of this. Court in, the case against Ward), that the Legislature by the use of the term “awaiting delivery,” had reference to the time which might elapse after the right to charge for storage accrued, and before removal of the property. But, for the-purpose of shifting the liability of the Company as carriers to that of warehousemen, during this period, no such provision was necessary; as, by law, without any limiting proviso in the charter, such would be their liability during that interval of time, and the proviso, under such construction, becomes meaningless as a proviso.
Now, when a proviso is inserted in an act, its office is-to limit the operation of such act, or to confine it to particular persons, or to a particular state of facts; and if it be held that the provisions of the charter respecting the collection of storage would primarily operate to continue the Company’s liability as carriers until the right to collect if should arise, then the proper interpretation, of the proviso is that which shall limit this efieet. Otherwise, it is no proviso. It was urged that “ awaiting delivery” presupposes the consummation of every preliminary requisite to delivery, and consequently presupposes notice to the consignee, and the elapsing of the time limited for its removal. But this is upon the assumption that notice, as well as reasonable time for removal, are common-law requisites to the discharge of a carrier’s liability; and so long as these are open questions, it can hardly be assumed, we think, that the Legislature intended to incorporate into this charter, by the sixteenth section, either rule. The presumption is, rather, that they designed to adopt a certain and independent rule relative to the liability of this Company, to avoid the uncertainties of the common law upon this subject.
Now, goods are in deposit in the depots of the Company, either awaiting transportation, or awaiting delivery. The section has reference only to goods which have been transported and placed in the Company’s depots for delivery to the consignee, and this language of the proviso was em ployed to designate the situation of the property, and not to create a new liability from such condition.
The office of the notice contemplated by the sixteenth section, is, then, we think, only to affix the right to charge for storage, and not to continue the liability of the Company as common carriers; and, if the necessity of notice to terminate the carrier’s liability did not exist without, it was not created by, it; while if it did exist, it is removed by the limitation of liability to that of warehousemen when goods are in deposit, and in a situation to be delivered, whether such notice be or be not given.
There was, therefore, error in the refusal of the circuit judge to charge as requested by the plaintiffs in error, and alleged in their first and second assignments of error.
The next question, and the only one we deem it necessary to consider, is, whether the Company can limit their common law liability by contract. This question involves, under the facts of this case, both the power of limitation by notice and by special agreement; and in this respect it is more broadly put than the facts of the case warrant, as the point thus stated assumes the existence of an express contract, or implies it from the terms of the receipt and accompanying notice. The error assigned is that the court refused to charge that the Company had a' right, by contract with the defendants in error, to limit their common law liability; and that if the jury should find that, by the terms of the receipts given by the Company to such defendants, it was stipulated between them, &c., such stipulation would define and limit the Company’s liability in this case.
We say the question is more broadly stated than the case warrants, because the assumption of the request that “the terms of the receipt” (by which was intended the receipt, and notice limiting the Company’s liability endorsed thereon) determine the contract, is not in accordance with the law— all the eases which give to such notice any validity agreeing that something more than mere notice endorsed upon a receipt, or otherwise brought to the consignor’s knowledge, is necessary to relieve the carrier from his common law liability. His assent to the limitation is still necessary; N and this is a question of fact for the jury, to be determined by evidence aliunde, and is not the subject of presumption from the terms of the receipt alone. And this is the correct rule respecting notices of common carriers, designed to have such effect.
Now, by their charter, this Company were created common carriers; it was made their duty to transport property for all persons indifferently; and this they can not refuse to perform. This duty is, in the absence of any contract, attended with extraordinary responsibilities and liabilities, which constitute them insurers of property while in their possession as carriers, and they can no more restrict these, unless upon the free and full agreement of the party dealing with them, than they can refuse to carry when required.
Such agreement is not to be implied from the posting of notices, or the simple delivery of one to the consignor, as this would be no more than limitation of his liability by the carrier by ex parte action. Some evidence of assent to the terms of the notice is necessary, from which a contract may be implied. In such case, if it is sought to be inferred from the acceptance of a receipt specifying a limitation of liability, or referring to an accompanying notice, for such limitation; or if it is sought to be inferred from previous notice and dealings; if it appear that the price of freight was made lower in consideration of such special restriction, and the party has received the benefit of such reduction of freight; such, or similar facts, might, and undoubtedly would, furnish strong evidence of assent; as in York v. N. M. Railway Co. 22 Eng. L. & Eq. 315, and as in the case of The Am. Trans. Co. v. Moore, 5 Mich. 368. But, if in a case otherwise similar, no such difference in the price of freight was made, or if the party had paid, or agreed to pay, the higher rate, or the price uniformly demanded according to the tariff of the Company in all cases, or if no optional tariff of prices, of which the forwarding party may avail himself, is shown to exist, little or no inference of assent to such special terms can be drawn, without allowing the Company, in effect, to limit their liability by a mere notice.
Again, upon grounds of public policy, this right should not exist in the Company. The public has a right to insist upon the full common law liability as carriers, unless a contract, releasing the Company from such liability, be clearly shown.
The immense powers and franchises bestowed upon them are granted in consideration that they shall, among other duties, “transport merchandise and property on their road, without showing partiality or favor, and with all practicable dispatch.” — See Charter, §15. From the facilities they offer, and are bound to provide, for transportation; and from their rapidity of locomotion, they do, and necessarily must, absorb nearly the entire business of carrying merchandise and property requiring carriage and deposit along and in the vicinity of their route, and competition is virtually destroyed. There is, in a certain sense, a compulsion upon all requiring transportation of property to employ them; and a restriction of liability by notice is measurably compulsory. There is no mutuality or freedom of choice offered. The person desiring goods forwarded is compelled in reality to have them carried forward by the Company; their obligation is to carry them; and a restriction of the liabilities primarily growing out of that obligation, by a notice, is an imposition of terms rather than a contract. We hold, therefore, that if the Company can, in any form, restrict their common law liability, they can not restrict it by notice alone. And this brings us to the principal question raised,— Can they by contract? We unhesitatingly say that the Company can not restrict their common law liability as carriers in any way. But the question involves more than this power of the Company. Whether they can enter into a contract with an individual desiring to employ them, by which such individual relinquishes some of the rights which the law, in the absence of a contract, gives to him, is quite another question, and involves the power of all who seek to employ them, to contract respecting such employment. It is the unfortunate form in which this question has been presented that has surrounded it with difficulties, or suggested any doubts. The idea prominently conveyed by the question is, that of the éx parte action of the Company; and this arises from the form of the question,— Can the Company “restrict,” or “limit”? &c.; — which suggests that of individual action. But when a contract is made, there are at least two parties acting, and to hold that the liability of the Company is inflexibly and unalterably fixed by law, denies to parties employing them the right of making any contract with them, upon any consideration by which the liabilities of the Company may be lessened. In other words, the doctrine leads to this result: — The law says to all persons who desire to have property transported by railway companies, you can only peremptorily require to have your property transported — the law affixes the terms; with the Company you have no right of choice or contract as to such terms, however advantageous to you such right may be. Now, the contract of an. individual with the Company, made to subserve his interest, is not a restriction by the Company of them common law liability, even though a diminution of such liability results therefrom. All the authorities, with perhaps a single exception (see The Rome Railway Co. v. Sullivan, 14 Ga. 277) beside that of The Mich. Central R.R. Co. v. Ward, concur that such contract can be made; and in these cases the power of the Company to contract for the transportation of property, whereby their common law liability may be lessened, is denied as being against public policy, inconsistent with them charter, and incompatible with their continued existence.
It is said that they are created common carriers; that to this character the law inflexibly attaches certain duties and liabilities; that these are necessary incidents, and can not be cast off, except by laying down such character, and consequently not without forfeiture of their charter, or, at least, the self- creation of a new character. But is this the correct view to take of this subject? The principle usually suggested as that upon which the right of the carrier to make a contract by which his liability will be limited or restricted, is that stated by Bronson J. in Hollister v. Nowlan (19 Wend. 247), viz.: That “the person entrusted with the goods, although he usually exercised that employment, does not, in the particular case, act as a common carrier.”
The same idea is also thrown out by Mr. Justice Nelson, in The New Jersey Steam Nav. Co. v. The Merchants’ Bank (16 How. 344), where he says: “The owner, by entering into the contract, virtually agrees that, in respect .to the particular transaction, the carrier is not to be regarded as in the exercise of his public employment, but as a private person, who incurs no responsibility beyond that of an ordinary bailee for hire, and answerable only for misconduct or neglect.” Whether this be the correct principle upon which to base this right, or not, it is very certain that all the cases from the time of Lord Coke down, recognize this right of the carrier to contract respecting his employment, and thereby to dimmish his liability. But this right is recognized as a power to contract, not to restrict.
For my own part, I can not appreciate the correctness of the reason, or accede to the principle, upon which this right is based. It has sprung, I think, from the undue prominence given to the idea that the carrier was, by the contract, restricting his liability, and in forgetfulness of the fact that such contract is the mutual act of parties in relation to a matter of private business. Now, it is true that the occupation of a carrier is a public employment, in a certain sense; that is, that he undertakes to carry for all persons indifferently for hire: but, in my view, this undertaking fixes his char acter, irrespective of rates and risks, and he only abandons it by refusing to carry. The duties and liabilities which the law imposes upon him, are only imposed because the public character has been already assumed by him.
They do not go to create it. When that character has been assumed, and so long as it continues, it is the right of every person to require of the carrier the transportation of his property along his route, upon the payment of freight. This can not be refused, although it may be regulated. In the absence of any contract, the law imposes upon the carrier the extraordinary liability of insurer against all loss, unless occasioned by the act of God, or the public enemy; and this becomes the terms of transportation, and may be called the contract of the parties, arising immediately upon the delivery of the property for carnage. But the law only makes a contract for the parties, or imposes a liability, when they have made no contract for themselves. The employer may procure the transportation of his property upon such terms as he may deem most advantageous to himself, if he can procure the carrier’s assent to such terms; and, in that event, the carrier is none the less a common carrier, although acting under a special, and not an implied, contract.
In my judgment, he acts as a common carrier so long as he carries for all indifferently, whether under the common law liability, or under a contract with his employer. An inn-keeper is one who keeps a house open for the entertainment of travelers; and the law, in his case (as in that of common carriers), imposes upon him special liabilities in respect to his guest’s property. Yet, no one doubts but that such liability may be lessened or restricted by a contract between the landlord -and such guest; and if it should be, I apprehend no one would consider the former any the less an inn-lceeper. He is still exercising his public employment, and bound by his primary obligation, namely, to entertain all persons applying; and this obligation extends in favor of the traveler who may, by special contract, have released him from some, or all, of the extraordinary liabilities imposed by the law in his behalf. It is upon the basis of his holding such character that the contract is made.
But whatever my own view of this subject may be (and the Court expresses no opinion upon it) — whether the carrier lays down, in the particular instance, his public character or not — we are all agreed that the law does not compel persons dealing with carriers, to rely and insist upon this liability which it primarily imposes in their favor. In these, as in all other cases, the law recognizes the competency of parties to manage their own affairs, and to make such contracts in respect to them as they may deem to be most advantageous, and when the extent of the risk and responsibility of the carrier, on the one hand, and the rights and liabilities of his employer, on the other, have been ascertained and fixed by the contract of the parties themselves, the law applies the maxim, “ JBxpressum facit cessare taciturn.”
It is said that these extraordinary liabilities are imposed by law upon common carriers from considerations of public policy, and that, therefore, they can not be thrown off by any act or contract, and the carriers still continue common carriers. It is true the liabilities are imposed from considerations of public policy; but paramount considerations of public policy secure to every man the right to regulate his own affairs, in his own way, and to make such contracts respecting his property as he may regard to be advantageous, if he violate no law; and it matters very little whether the carrier be denominated “public” or “common,” or any thing else, so long as his primary obligation, and that which really characterizes his employment, viz., to carry for all persons indifferently, exists. The carrier is always bound to transport the property entrusted to him under the common law liability, if not Avaived, or in the absence of any contract; but if the person dealing Avith him thinks it to be for Ms interest to make a contract, Avhereby he agrees to hold the carrier to a less degree of liability, or if he choose to become his own insurer, and can thereby obtain more advantageous rates of freight, or any other benefit, why may he not be allowed to do so ?
What principle of public policy, superior to that which secures to every citizen the right to control his own affairs, is contravened, or what law is violated by him, in making the contract ? He renounces the benefit of a liability which the law authorizes him to insist upon; and by this renunciation, which is voluntary, and can never be compulsory, the carrier is relieved from such liability. This is the result of his act and volition, as much as of the carrier; and if we hold that he can not do this, because of the benefit to the carrier accruing from it, we must deny to all who have property to transport, if sent forward by a carrier, the ordinary rights of choice and power to contract which belong to every man in every other instance. Such a doctrine we think to be “an unwarrantable restriction upon trade and commerce, and a most palpable invasion of personal rights.” — Dorr v. The New Jersey Steam Nav. Co, 1 Kern. 493.
These considerations, we think, apply with full force to the case before us; and before we can hold that the charter of this Company has in any way prohibited them from entering into such contracts, we must be satisfied that it was not only the deliberate intention of the Legislature to tie the hands of the Company in this respect, but those also of every person doing business with them. A conclusion so at variance with popular rights is not to be inferred from slight grounds, or doubtful or uncertain provisions, but should be warranted by the clear intent and language of the charter.
By the charter, the Company were created a railroad and transportation company. This constitutes them common carriers; and, in the absence of any contract, affixes to them all the liabilities incident to such character, and invests them with the same rights and powers. Among the latter, as we have already shown, exists the universally recognized one of making contracts respecting the terms and liabilities of transportation. They can not discontinue the business of trans portation of property, nor refuse to carry that of every one offering it for transportation, according to their reasonable regulations, nor impose terms limiting or restricting their liability as common carriers.
But while these powers are denied them, it by no means follows that the citizen is denied the right of contracting with them; and if the citizen is not, they are not debarred the right of contracting with him, whether the result be- to increase or diminish their liabilities.
Now, if they do contract, are they any the less a transportation company, or carriers for all persons indifferently for hire ?
It was suggested on the argument that the power to contract was incompatible with the requirements of the charter, that they should “transport merchandise and property without showing partiality or favor, and with all practicable dispatch.” But the offer of terms of transportation dependent on different degrees of risk — the freedom of choice by law remaining with the party contracting with the Company — or the contracting with such party in respect to prices and liability, is not within the clause of the charter. This was designed to secure to all the prompt transportation of property, and at uniform rates, in the absence of any contract, without partiality or favor in the order of its being forwarded. The Legislature could have had nothing further in view. They certainly could not, by such general terms, have intended to diminish the rights of the citizen to contract with the Company, according to the suggestions of interest, respecting the prices and risks of transportation.
But, by designing that property should be transported at uniform rates, they did not necessarily intend that it should be transported at uniform risks. If the Company fix certain uniform rates for all cases when the common law liability attaches to the undertaking, and offer different rates when contracts are made — 'the option of rates and risks remaining, as it must, in the employer' — and making no distinction as to the time, order, or manner of transportation, no partiality or favor is shown, and, the option being given alike to all, the Company is exercising no right not available to every class of common carriers.
It is also urged that tbe charter is in the nature of a contract between the Company and the public, and that any attempt on the part of the Company to restrict their common law liability is against public policy, and void; and for this reason their power to contract upon this subject is denied. This argument has been already sufficiently answered. That their charter is in the nature of a contract, is, to a certain extent, true; but it is a contract that they shall be transporters of property, as other common carriers are. The extent of this obligation we have already shown. In exercising any of "the powers common to all common carriers, no contract with the public is violated; nor is any consideration of public policy contravened by~suffering a voluntary contract to be made with them by persons employing them, although it should necessarily follow that they contract also, or it should happen that a common law liability is restricted or surrendered. The liability is for the benefit of the employer, and public policy is subserved by compelling them to remain carriers, and forbidding any restriction of liability otherwise than by contract.
We therefore hold — overruling in this respect, also the case of Mich. Central R. R. Co. v. Ward — that although the liability of the Company can not be restricted by notice, it may be by contract.
These considerations render it unnecessary to consider the errors assigned by the defendants in error in the case of Rale v. this Company. The object of the notice has been defined; and whether Hale or Howard was the owner of the wheat is immaterial under our view of the Company’s liability.
The judgment must be reversed, and a new trial granted.
The other Justices concurred.
The defendants in error in tliis caso had also brought error upon the same judgment. Upon delivery of the foregoing opinion, the Court directed the following order to be entered in that case:
“ Lorenzo L>. Hale mid Others v. The Michigmi Central Railroad Company.
“This cause having been duly heard and submitted; and the judgment of the Circuit Court for the county of Jackson in this «ase having been already reversed upon
the writ of error presented in this court upon the same record judgment and proceedings by the Michigan Central Railroad Company; and such reversal having disposed of this case in favor of the defendants in error: It is therefore, on motion of Lothrop, of counsel for defendants in error, ordered a/nd adjudged^ that said defendants in error do recover of and from the plaintiffs in error their lawful costs to be taxed, and that they have execution therefor.” | [
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Manning J.:
On the 14th November, 1855, and previous thereto, Benjamin C. Durfee, complainant’s husband, and one Moore, were partners in trade under the name of Moore & Durfee, and the firm was indebted to defendant in the sum of fifteen hundred dollars, for which amount he held the notes of the firm. He also held three other promissory notes of the firm, given on that day, for six hundred dollars each, payable in six, nine, and twelve months, with interest at ten per cent. On the same day, two mortgages were assigned to defendant, both given by one Berry — one to complainant for eighteen hundred dollars, and assigned by her and her husband to defendant; and the other to her husband for nineteen hundred dollars and odd, and assigned by him to defendant. The mortgages bore even date, and one or more payments had been made on each. Both assignments were absolute on their face. The mortgages and assignments were delivered to defendant by complainant’s husband, and defendant at the same time gave to him a receipt describing the mortgages, and stating defendant had received them of Benjamin C. Durfee, as collateral security for the payment of the aforesaid notes of Moore & Durfee, and of an individual debt Durfee was owing defendant. By a subsequent agreement, made in May or June, 1856, between Moore, Durfee, and defendant, the latter purchased Durfee’s interest in the co-partnership; and in the settlement then made between the three, the notes of the firm and the individual debt of Durfee were paid, and the mortgages were transferred to defendant.
Complainant files her bill for a re-assignment to her of the eighteen hundred dollar mortgage, and for all payments made on it to defendant, stating in her bill that the mortgage was assigned by her to defendant as collateral security for the payment of the aforesaid notes of Moore & Durfee, and the individual debt of her husband, and that the notes and debt had been paid.
There is nothing on the face of the mortgage, assignment, or receipt, nor is there any parol testimony, showing complainant was a party or actor in any of the transactions between defendant, and Moore, and her husband, Benjamin C. Durfee, unless the assignment of the mortgage by her and her husband to defendant is to be regarded in that light. The assignment, it is to be observed, is absolute on its face; and the receipt given by defendant is to her husband, and not to her, and does not mention her name, except in describing the mortgage and assignment in the body of it. If the receipt had been made to her, or to her and her husband, the case would be altogether different. It would show she was a party to the delivery of the mortgage and assignment to defendant, and that she had not parted with her interest in the mortgage to her husband, and at his request assigned it to defendant.
If she did not intend he should have the absolute disposal of the mortgage, she should have made the assignment conditional, or had the receipt taken in her own name. From the facts before us, we can not say the assignment was intended by her as security only, and that there was no intention to part with her interest in the mortgage, to her husband, unless it be a legal inference to be drawn from the circumstance of the mortgage having belonged to her before the assignment. The law draws no such inference.
She was not present when the mortgage and assignment were delivered, nor does it appear there was any negotiation between her and defendant as to the mortgage or its assignment, or that her husband was acting in her behalf, or as her attorney, or not solely for himself. As her agent, the assignment would be equivalent to a power of attorney authorizing him to sell the mortgage to defendant; and any instructions given him to the contrary, unless brought home to the knowledge of defendant, would not affect him. The great difficulty is, there is no evidence the assignment was intended by the wife to be conditional.
Real and personal property belonging to a married woman may be “ contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her, in the same manner and with the like effect as if she were unmarried.” —Comp. L. p. 966, §3292.
The reason why complainant’s husband joined in the assignment, probably, was that the statute (Comp. L. p. 965, §3289), before it was amended, in February, 1855, required the husband to give his consent to all transfers made by the wife of her individual property, and the parties, most likely, were not aware, at the time, of the alteration in the law. Since the amendment, we think, we should treat all contracts of sale by married women as we would were they made by a feme sole. If complainant had been unmarried, there would be nothing in the case showing she did not intend, by assigning the mortgage, and delivering it and the assignment to Durfee, to give him the absolute control and disposition of it, and we see no reason why her rights should be placed on any different footing on account of her coverture.
We should not, without some evidence at least, presume her husband has deceived her; and even if he has (we suppose the case, for there is no charge of the kind), inasmuch as she has, by her' own act, enabled him, not only to deceive her but defendant, she, instead of defendant, should be the sufferer.
It was said on the argument, the answer admits the assigment was made by complainant as security.
The bill waived an answer on oath, and a replication was filed. When no replication is filed, the answer is received as true, and is evidence. When a replication is filed, it is not evidence, but complainant may use it as an admission by defendant of a fact necessary to establish his case. He can not, however, use a part of the answer, and exclude other parts relating to the same subject that would b,e responsive to the bill had the answer been under oath.
In the answer, defendant admits “complainant, jointly with her husband, did make, execute, and deliver to him an assignment of the mortgage as “ collateral security.” Here is an ■admission that the assignment was delivered to defendant, by complainant and her husband, as security. Defendant means nothing of the kind, as is evident from other parts of his answer. A few lines lower down, after describing the mortgage, and debts to be secured by it, the answer says: “ But whether said assignment was made by complainant at the request of said Benjamin C. Durfee, or not, the defendant has no knowledge, and can not state. But he avers he never saw said complainant, or ever transacted any business with her.” A little lower down still, the answer says: “ That he had no privity of contract, of any kind, with complainant, and knew not then, and knows not now, what were her rights or interests in said mortgage, or what induced her to join her husband (the said Benjamin) in assigning the same to him.”
The decree of the court below must be affirmed, with Costs.
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Shapiro, J.
In these consolidated cases, respondents, parents of four minor children, appeal as of right the order of the family division of the circuit court terminating their parental rights. We reverse as regards the three older children and remand this case to the trial court for redetermination of the youngest child’s best interests in light of our decision.
I. FACTS
The children involved in this case are the issue of a 10-year relationship between respondents, who never married. The petition asking the court to take jurisdiction arose from allegations that respondent-father negligently failed to recognize that the youngest child, then only several weeks old and ill with a virus, was becoming dangerously dehydrated, and as a result suffered severe, albeit temporary, kidney damage, and had to be admitted to the hospital for intensive treatment. The petition did not allege any abuse or neglect in connection with the older three children, then aged three, five, and ten years, nor has any abuse or neglect of the three older children ever been alleged anywhere in the course of these proceedings.
While pregnant with the youngest child, respondent-mother tested positive for methadone and THC, and admitted using opiates for years. At birth, in late July 2011, the child tested positive for THC. In light of respondent-mother’s drug use, along with some observations of questionable behavior while in the hospital, social workers at the hospital were concerned for her ability to care for the newborn and so contacted Child Protective Services (CPS). Three days after the child’s birth, CPS initiated a child protection case. That case did not result in any court action, and so that file is not available to us. However, the parties indicate that respondent-mother agreed to move out of the family home for some time and to see the infant only with supervision. The record before us does not suggest that the agreement between respondent-mother and CPS limited her access to the three older children.
As noted earlier, several weeks later while in the care of respondent-father, the infant became severely dehydrated and required emergency hospitalization. According to the medical records contained in the court file and subsequently provided testimony, the child had been ill for some time with a virus and was listless when she awoke on the morning in question. Respondent father failed to recognize the severity and speed of the infant’s deterioration and regarded her as having gone back to sleep when she may in fact have been losing consciousness. He stated that he attempted to give her a bottle, but that she drank nothing from it. He left for work in the early afternoon, upon which his mother took over as babysitter. After an hour or two, the grandmother became concerned that she was unable to rouse the child, and so called 911. Emergency responders stabilized the child and took her to the hospital, where she was diagnosed as suffering from severe dehydration with resulting acute kidney failure, and placed in intensive care. It was estimated that she had gone without liquid intake for approximately 16 hours. Fortunately the child was successfully rehydrated and over several days recovered completely.
Upon admission of the child to the hospital, the case was flagged by the medical staff as possibly involving medical neglect or even physical abuse. The latter was initially a concern because imaging studies revealed that the child had chronic subdural hematomas. Fur ther medical examination ruled out that the hematomas were caused by external trauma, but that fact was not immediately known.
Given the suspicious circumstances, and the infant’s critical medical condition, the Department of Human Services immediately sought and obtained emergency removal of all four children from respondents’ care the following day, November 17, 2011. The petition contained allegations concerning respondent-mother’s prenatal drug use as well as the events concerning the infant’s emergency hospitalization. Though the other three children were not mentioned in any factual allegations, petitioner requested their emergency removal as well, stating, “the Department feels that the children are at imminent risk of further harm if they are to return to the home of their mother or their father.”
On November 30, 2011, petitioner filed an amended petition adding allegations concerning the infant’s kidney damage and the discovery of subdural hematomas, which, as noted, raised concerns about physical abuse until further investigation ruled that out. At the preliminary hearing, which was held the next day, the court noted that the other three children “have been raised by the two parents and they seem to be fine right now.” The CPS worker agreed that there was no history of medical neglect by the father before the November 2011 incident, and that there was “no allegation regarding the three older children that any of those children were neglected in any way[.]” She also agreed that “all [three older] children appear to be happy and healthy and they’ve been described as polite and well-behaved,” that they “are all very bonded to their parents,” and that they “are adamant that they want to see their parents[.]” The children’s lawyer-guardian ad litem stated that she had met with “the three older children and . . . all they ask about is when they can see mom, when can they see dad. They’re clearly very bonded to both of their parents. . .. [A]ll three of the older children are very well-mannered, very appropriate for their ages; very smart kids, very lovely children.” She recommended that the parents be allowed to see the children as often as possible.
The court issued an order finding probable cause to believe that the “conditions of custody in the home and with the individual with whom the children reside are not adequate to safeguard the children from the risk of harm to the children’s life, physical health and mental well-being.”
A pretrial hearing was held on January 19, 2012, two months after the children’s removal. The foster care worker testified that the placement of the three older children was appropriate, and that, although she had no objection to increased supervised visitation, it might be difficult to achieve because of the limited availability of supervision. She recommended that the children remain in their placements.
The foster care worker further testified that she was unaware of “any reason to believe whatsoever that any of the three older children have ever been abused or neglected by [respondent-father],” adding that respondent-father had been completely compliant with services and that his drug screens were all negative. She also testified that the medical concerns regarding the infant were the only reasons for removal, and agreed that the three older children had “been well-parented up to this time.” Even so, the foster care worker opined that respondents would benefit from parenting classes, and stated that she opposed any return of the children to their home until the parents demonstrated additional compliance with the initial service plan. She continued that she would “consider” unsupervised visitation for the older children if the drug screens stayed negative, but expressed the concern that especially respondent-mother might be continuing her problematic drug usage.
After this testimony, counsel for respondent-father addressed the court:
I feel that the three older children should be returned to Mr. LaFrance’s custody, if not now, then in the very near future.. ..
. . . There is not [an] allegation, no evidence, no claim whatsoever that the . .. older children were abused or neglected in any way. ... [They] are bonded with their father. They enjoy being with their father and it’s in their interest as well as Mr. LaFrance’s interest for them to be reunited with their father.
Respondent-mother’s counsel similarly stated that this was a case of “a very special needs child and the others have been well-cared for.” The L-GAL opposed the request, noting that respondent-mother had moved back in with the respondent-father, and that, unlike respondent-father, she continued to test positive for drugs and had not complied with services.
The trial court stated that, although it could not order compliance with services until the court acquired jurisdiction through an adjudication, the more the parents complied with, and benefited from, services, “the sooner they’ll be reunified with their children,” and that absent such progress it was “unlikely that they’ll be returned. . . until and unless there is a finding that the Court does not have jurisdiction.” The court left placement and parenting time to the discretion of petitioner, but stated, “[t]hat’s not to say that the parent/child relationship shouldn’t be maintained and strengthened... to the extent that’s possible by providing . . . liberal parenting time and I would recommend that to the Department[.]”
The case was adjudicated on February 17, 2012, when the prosecuting authority advised the court that respondent-father would plead to the allegations that he failed to get his infant daughter timely medical attention on November 17, 2011. Respondent-father did so, and the court took jurisdiction over all four children on the sole statutory ground that there had been a “failure to provide, when able to do so, support, education, medical, surgical, or other necessary care for health or morals.” There was no separate adjudication in connection with respondent-mother, but both were ordered to participate in services, and were allowed only supervised visitation at petitioner’s discretion.
Through the course of the case, respondents were compliant with some, but not all, services, with respondent-mother being less compliant than respondent-father. The primary area of noncompliance concerned the drug testing and the goal of ending respondents’ respective drug dependencies. A second ary area of concern arose from the youngest child’s mild cerebral palsy, which was diagnosed while she was in foster care. Specifically, respondents failed to take advantage of services offered to help them learn to address that child’s resulting special needs. Despite being encouraged to attend the child’s many medical appointments, respondents missed the great majority of them.
At the same time, the evidence consistently indicated that when respondents had parenting time with the children it went very well, that respondents behaved appropriately and showed no signs of drug-induced impairment, and that it was apparent that strong bonds existed between respondents and the three older children, who ardently wished to be reunited with their parents.
Petitioner sought termination of respondents’ parental rights on May 22, 2013, alleging four statutory grounds. The court conducted a two-day evidentiary hearing on the petition, then concluded that each of the four statutory grounds had been demonstrated by clear and convincing evidence and that termination was in the children’s best interests. Accordingly, the court entered an order terminating the parental rights of both respondents.
II. LEGAL ANALYSIS
The trial court concluded that termination of respondents’ parental rights was warranted under MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j). Those provisions authorize termination under the following circumstances:
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent’s home.
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds .. . the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
(j) There is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.
“If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5).
An appellate court “review[s] for clear error both the court’s decision that a ground for termination has been proven by clear and convincing evidence and. .. the court’s decision regarding the child’s best interest.” In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). A reviewing court must defer to the special ability of the trial court to judge the credibility of witnesses. Id. Statutory interpretation, however, is a question of law calling for review de novo. Thompson v Thompson, 261 Mich App 353, 358; 683 NW2d 250 (2004).
Parents have a fundamental liberty interest in the “companionship, care, custody, and management of their children.” In re Brock, 442 Mich 101, 109; 499 NW2d 752 (1993). See also Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (stating that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests recognized by this Court”) (O’Connor, J., joined by Rehnquist, C.J., and Ginsburg and Breyer, JJ.); see also id. at 77 (Souter, J., concurring), 80 (Thomas, J., concurring in the result), 86-87 (Stevens, J., dissenting on other grounds), and 95 (Kennedy, J., dissenting on other grounds); 147 L Ed 2d 49 (2000). That dire interest “ ‘does not evaporate simply because they have not been model parents or have lost temporary custody of their child[ren] to the state.’ ” In re Trejo, 462 Mich at 373-374, quoting Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). Accordingly, that custody with natural parents serves a child’s best interests “ ‘remains a presumption of the strongest order and it must be seriously considered and heavily weighted in favor of the parent.’ ” Heltzel v Heltzel, 248 Mich App 1, 25; 638 NW2d 123 (2001), quoting Deel v Deel, 113 Mich App 556, 561; 317 NW2d 685 (1982) (emphasis omitted).
A. TERMINATION UNDER MCL 712A.19b(3)(b)(t¿)
The only injury alleged to have occurred in connection with this case is the dehydration of the youngest child, and the kidney failure and other complications that resulted.
MCL 712A.19b(3)(b) authorizes termination of parental rights where the child, or the sibling of the child suffers physical injury or physical abuse or sexual abuse under any of the following conditions:
(i) The parent’s act caused the physical injury or physical or sexual abuse and ... there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home.
(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and .. . there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent’s home.
(iii) A nonparent adult’s act caused the physical injury or physical or sexual abuse and . .. there is a reasonable likelihood that the child will suffer from injury or abuse by the nonparent adult in the foreseeable future if placed in the parent’s home.
Petitioner has not alleged grounds under subparagraph (i) or alleged that respondent-father’s act “caused the physical injury.” Rather, it relies on only subparagraph (ii) and argues that respondent-father “had the opportunity” to prevent the harm caused by the dehydration.
“Contextual understanding of statutes is generally grounded in the doctrine of noscitur a sociis: '[i]t is known from its associates’ .... This doctrine stands for the principle that a word or phrase is given meaning by its context or setting.” Koontz v Ameritech Servs, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002) (quotation marks and citations omitted).
Applying this principle, we conclude that subparagraph (b)(ii) must be interpreted in the context of its sister subparagraphs, (b)(i) and (b)(iii). It is clear under these provisions that for physical injury to fall within MCL 712A.19b(3), it must be caused by a “parent’s act” or a “nonparent adult’s act” and not merely contributed to by an unintentional omission. Accordingly, subparagraph (ii) is intended to address the parent who, while not the abuser, failed to protect the child from the other parent or nonparent adult who is an abuser. We reject the suggestion that subparagraph (ii) was intended to be broader than subparagraphs (i) and (Hi) in that it could apply merely to a negligent failure to respond to an accidental injury or naturally occurring medical condition not caused by an “act” of a parent or other adult.
Indeed, the caselaw applying this subparagraph has invariably involved abusive contact with the child. See In re Sours Minors, 459 Mich 624, 635-636; 593 NW2d 520 (1999) (several assaultive acts, including domestic violence); In re Ellis, 294 Mich App 30, 31-33; 817 NW2d 111 (2011) (severe physical injuries resulting from physical abuse); In re HRC, 286 Mich App 444, 449-461; 781 NW2d 105 (2009) (sexual abuse); In re Archer, 277 Mich App 71, 73-75; 744 NW2d 1 (2007) (excessive corporal punishment).
For these reasons, we conclude that MCL 712A.19b(3)(b)(ii) did not apply to this case. As we will now discuss, however, medical neglect may constitute statutory grounds for termination under the three other provisions of MCL 712A.19b(3) on which the trial court relied.
B. TERMINATION UNDER MCL 712A.19b(3)(c)(¿), (3)(g), AND (3)(j)
The trial court concluded that termination of respondents’ parental rights was warranted under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist), (3)(g) (failure to provide proper care and custody), and (3)(j) (children will likely be harmed if returned). We agree with the trial court regarding the youngest child, but hold that the court erred by extending its reasoning to the three older children.
1. THE YOUNGEST CHILD
In the course of pleading to the court’s exercise of jurisdiction over the children, respondent-father agreed that respondents’ youngest child was in his care and custody when she went approximately 16 hours without consuming food or fluid, that he should have known that the child needed medical care but failed to obtain it, and that as a result medical professionals found the child to be severely dehydrated and profoundly ill.
A pediatric nephrologist testified that she was consulted to evaluate the child’s acute kidney injury and found her “still in the process of being re-hydrated,” but “[t]he rest of it was pretty normal.” The expert advised that children become dehydrated more easily than adults and so the condition can arise “very quickly,” and elaborated that a three-month-old child “should be feeding every two to three hours,” and that doing without for 16 hours “would cause the child to be severely dehydrated.” The nephrologist stated that, of the various signs of infant dehydration, she would expect a parent in respondent-father’s position to notice decreased urination and saliva production.
The nephrologist described the child’s kidney failure as an acute condition, meaning an “isolated event,” not something that had been ongoing for her entire three months. She further reported that the child was now off her medications and “doing well,” with kidney size and electrolytes normal.
The expert testified that although the infant was born after only 33 weeks of gestation, at the time of the dehydration incident she was “pretty much term as far as . . . gestational age” and thus required no handling different from what would be appropriate for a normal newborn; she further agreed that nothing about the child’s premature birth predisposed her to becoming dehydrated more easily than other infants of her gestational age. According to the witness, “while she was premature, she had a pretty uneventful course” with no “infections or anything . . . that could have injured her kidneys at that time,” and so “didn’t have any increased susceptibility other than being a baby[.]”
Respondents’ family pediatrician testified on respondents’ behalf, stating that he started caring for respondents’ oldest child when that child was a toddler and thereafter saw all the children regularly for both illnesses and routine examinations and that he had never detected any signs of neglect or abuse. He further stated that “they were pretty normal kids and I didn’t have specific concerns about their care,” and that they were all well fed and generally healthy. Asked if consumption of the controlled substances associated with respondent-mother during pregnancy could contribute to a premature birth, the doctor answered that it “might,” but elaborated, “on the other hand, there are babies . . . whose mothers have used the substances [who] were born on time,” and that “there are lots of things that can trigger a premature birth.” Similarly, the nephrologist stated that substance abuse, including tobacco smoking, can cause premature birth, but declined to testify that there was a causal link in this case.
a. RESPONDENT-FATHER
Respondent-father’s responsibility for neglecting to notice something amiss with, or otherwise attend to, his youngest child as she went several hours without taking nourishment or fluid before rapidly slipping into a life-threatening condition is a matter admitted by him, and well emphasized by the trial court. Also of concern, as the trial court noted, is that the child’s cerebral palsy presents serious and enduring parenting challenges. Although there was no evidence that respondent-father was intoxicated at the time of the dehydration incident, the trial court did not clearly err by regarding respondent-father’s persistent substance-abuse problem as heightening concerns that such neglect could recur. Nor did the court err by attaching significance to respondent-father’s failure to participate in, or benefit from, services relating to caring for a child with cerebral palsy, or to attend most of that child’s medical appointments. The seriousness of the incident of medical neglect, considered along with the child’s special needs, respondent-father’s failure to demonstrate a willingness to undertake the special efforts that those special needs demanded, and his failure to get his substance-abuse problem under control, supported the trial court’s conclusions for purposes of MCL 712A.19b(3)(c)(i) and (3)(g) that respondent-father might well again fail to respond properly to a serious medical condition that might arise with the child, and for purposes of (3)(j) that the child faced a reasonable likelihood of harm if returned to respondent-father’s care.
b. RESPONDENT-MOTHER
Respondent-mother was not present for any part of the dehydration incident and thus cannot be deemed negligent in that regard. Her admitted drug use during pregnancy raises serious concerns, however, even though there was no medical testimony linking that drug use to the child’s prematurity, her bout with dehydration, or her mild cerebral palsy.
Significantly, the drug use does not stand alone. Evidence was introduced of several behaviors of respondent-mother immediately after giving birth that raised concerns among the medical staff about her ability to care for a newborn. More significantly, even after the infant’s cerebral palsy diagnosis, respondent-mother failed to attend virtually all of the dozens of medical appointments for the baby, failed to attend programs intended to educate her about that condition, and refused to sign paperwork to facilitate the child’s receiving physical therapy.
A lack of cooperation with reunification services, or other court-ordered conditions, can bear on a termination decision, if that lack of cooperation relates to issues of abuse or neglect. See In re Trejo Minors, 462 Mich at 346 n 3. Such a failure “should not be over-emphasized and ... is not determinative of the outcome of a termination hearing.” In re Bedwell, 160 Mich App 168, 176; 408 NW2d 65 (1987). However, the failure to participate in services directly linked to the ability to care for a special needs, or medically fragile, child bears directly on issues of neglect.
For these reasons, the trial court did not clear err by concluding that termination was warranted under MCL 712A.19b(3)(c)(i), (3)(g), and (3)(j).
2. ANTICIPATORY NEGLECT
The trial court terminated respondents’ parental rights to their three older children by emphasizing respondents’ respective failures to gain control over their substance-abuse habits and heavily relied on the doctrine of anticipatory neglect, according to which “[h]ow a parent treats one child is certainly probative of how that parent may treat other children.” In the Matter of LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973); see also In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001). However, the trial court nowhere suggested, and no evidence was offered to prove, that either respondent had ever abused or neglected any of their three older children.
Moreover, the ages and medical conditions of the three older children stand in sharp contrast to that of the youngest child. Unlike the latter, who requires special medical care for which respondents seemed to under-appreciate the need, no such special care was required for the older children. Moreover, respondents had cared for those children from birth without incident, including any allegation, let alone proof, that they had abused or neglected the three older children at any time. While anticipatory neglect can militate in favor of termination, under the unusual circumstances of this case, the doctrine has little bearing. Again, no allegations of abuse or neglect have ever arisen in connection with the three oldest children, and the only allegations of negligence underlying this case concern respondent-mother’s continued substance abuse during her pregnancy with the youngest child, and respondent-father’s failure to act promptly in response to that infant’s rapid medical deterioration. The three older children ranged in age from five to twelve years at the time of termination, and, thus, did not share their infant sister’s medical vulnerabilities or inability to articulate personal needs or discomforts. Moreover, concerns over the youngest child’s cerebral palsy hardly militated in favor of terminating parental rights to the older children, who suffered from no such special need. See In re Newman, 189 Mich App 61, 71; 472 NW2d 38 (1991) (“We do not consider it appropriate to destroy a family’s relationship with five children if the major problem appears to be the parents’ inability to cope with one of them....”).
The trial court’s concern for both respondents’ demonstrated failure to get their substance-abuse problems under control was certainly justified. However, drug use alone, in the absence of any connection to abuse or neglect, cannot justify termination solely through operation of the doctrine of anticipatory neglect.
Cases that come before this Court often dramatically illustrate that substance abuse can cause, or exacerbate, serious parenting deficiencies, but the instant case is a poor example. We do not mean to imply any approval of the protracted, and sometimes illegal, use of prescription medications so much in evidence in this case, even as we refrain from repeating the trial court’s apparent mistake of simply assuming that overuse, or illegal acquisition, of such medications is itself ground for concluding child neglect or abuse will ever result from it.
Termination of parental rights requires “both a failure and an inability to provide proper care and custody,” which in turn requires more than “speculative opinions . . . regarding what might happen in the future.” In re Hulbert, 186 Mich App 600, 605; 465 NW2d 36 (1990). In the case of the youngest child, we credit the trial court’s concern that respondents’ continued substance-abuse issues, considered along with their failure to attend medical appointments or benefit from services offered to provide guidance in dealing with cerebral palsy, heightens the risk that respondents might again fail to appreciate the special needs and vulnerabilities of their infant daughter. But because no such special needs or vulnerabilities exist in relation to the three older children, we conclude that the trial court erred by invoking anticipatory neglect to extend those concerns to them as well.
For these reasons, we conclude that the trial court clearly erred by finding that termination of respondents’ parental rights to the three older children was warranted under MCL 712A.19b(3)(c)(i), (3)(g), or (3)(j).
C. BEST INTERESTS
Once a statutory basis for termination has been shown by clear and convincing evidence, the court must determine whether termination is in the child’s best interests. MCL 712A.19b(5). Best interests are determined on the basis of the preponderance of the evidence. In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).
Because we conclude that the trial court erred by concluding that any of the statutory bases for termination were proved in connection with the three older children, we need not review the court’s best-interest determinations as applied to them. However, because our decision should result in the return of the three oldest children to respondents, and thus significantly change the family dynamics from what the trial court envisioned when originally deciding this case, we remand this case to the trial court to determine anew whether termination of respondents’ parental rights to the youngest child is in the latter’s best interests. The court should consider all facts and circumstances that have occurred up to the date of its new decision.
III. CONCLUSION
The court erred as a matter of law by concluding the medical neglect involved in this case constituted failure to prevent physical harm for purposes of MCL 712A. 19b (3) (b) (ii).
The trial court did not clearly err by concluding that termination of respondents’ parental rights to their youngest child was warranted under MCL 712A.19b(3)(c)(i), (3)(g), and (3)(j). However, the court clearly erred by extending that result to the older three children on the basis of anticipatory neglect.
We affirm the decision below as it concerns the trial court’s findings of three statutory bases for termination in connection with respondents’ youngest child, and remand for redetermination of that child’s best interests. We reverse in all other respects.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
Murphy, C.J., and Riordan, J., concurred with Shapiro, J.
We are deciding this case without the benefit of any briefing from petitioner, although the children’s lawyer-guardian ad litem (L-GAL) submitted briefs in support of petitioner’s position.
The medical records show that respondent-father brought the child to the emergency room with viral symptoms three weeks earlier.
In a December 15, 2011 letter to CPS, the hospital’s child-abuse pediatrician opined that the records of the infant’s neonatal care following premature birth indicated a very small head circumference, and that a “diagnosis of diffuse atrophy is more likely as opposed to trauma.” Subsequently, the child was diagnosed with mild cerebral palsy, but that condition was neither a cause nor an effect of the dehydration incident.
Respondent-mother complains in general terms about the trial court’s having imposed services on her when her parental fitness was never adjudicated, even as she concedes that she had already consented to adhere to petitioner’s requirements during her pregnancy. In any event, because she did not argue in her brief on appeal that the lack of a separate adjudication in connection with her was itself grounds for relief, and has not sought to supplement her brief in order to urge retroactive application of our Supreme Court’s recent overruling of the one-parent doctrine in In re Sanders, 495 Mich 394; 852 NW2d 524 (2014), we do not address those issues.
During much, but not all, of the relevant time period, respondents tested positive variously for THC and opiates — particularly hydrocodone, a derivative of codeine. It appears that for at least some of the period, at least respondent-father had a prescription for hydrocodone and was testing for that substance within therapeutic levels. However, in time, he continued to use the drug without a prescription. Respondent-mother refused to participate in a detoxification program or an inpatient substance-abuse program and regularly tested positive for opiates. While respondent-father participated in both programs, he does not appear to have successfully conquered his dependency.
As noted, this condition was not a result of the dehydration incident.
Indeed, an early signal that consumption of prescription medication would he overvalued in this case was when, at the initial dispositional hearing, the caseworker expressed her understanding that both respondents had prescriptions for hydrocodone, and that tests revealed concentrations of that drug well within therapeutic levels, but nonetheless insisted that respondents terminate what the witness understood to be respondents’ respective physician-directed courses of treatment in deference to her own general concerns about the hazards of that pharmaceutical.
Although petitioner raised other concerns regarding respondents’ parenting prospects, including housing and emotional stability, there is no suggestion that any such problems on respondents’ parts have ever resulted in any abuse or neglect of the children, and nothing in evidence suggests that that would suddenly change after ten years of parenting. Accordingly, those concerns do not themselves, separately or collectively, justify termination of parental rights. | [
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Martin Ch. J.:
Lamb, the plaintiff below, brought his action in a justice’s 'court against Tower and two other defendants, Burch and Cooper. The declaration was in trespass, and the damages ‘claimed $500. A discontinuance was entered as to Cooper, and, after trial, judgment was rendered against Tower and Burch for $100 and costs. From this judgment Tower •appealed to the county court, and there Tower, Burch (and, by some error, Cooper) all entered their appearance by attorney. Upon trial in the county court, judgment was rendered against Tower and Burch for $200. The cause is brought to this Court upon writ of error, by Tower alone. The errors assigned are, — 1st, The insufficiency of the declaration; 2d, That the claim of $500 damages ousted the .justice of jurisdiction; 3d, That the county court had no .jurisdiction of Tower (and Burch, as the appeal was by Tower alone; and, 4th, That there was no judgment rendered by the justice from which Tower could appeal, and the proceedings in the county court were, for these reasons, void.
The first error assigned is, very properly, not urged by the plaintiff in error. The second is within the rule of Wells v. Scott, 4 Mich. 347, where it was held that this Abjection comes too late after appeal, when the objection is not raised in the appellate court. The third error assigned is based upon the fact that Tower alone appealed. But the appearance of Burch obviated any objection which can be made in this court, by either Tower or Burch, to the ,juris<£6tion of the county court. It is, moreover, one which Tower, as appellant, can not take, as he suffers no injury by a joint judgment, and had most certainly submitted himself to the jurisdiction of that court; and Burch is not a party assigning errors. But the record showing that Burch did appear, no objection to the jurisdiction or judgment of the court can prevail.
The fourth error assigned is that no proper judgment was rendered by the justice, from which Tower could appeal.' But he did appeal, and without objection to the form of that judgment; and that fact, and the further one of a judgment in the county court, makes this objection come, too late.
After appeal and trial, no error can be assigned upon the form of the justice’s judgment.
The judgment of the court below is affirmed, with costs.
The other Justices concurred. | [
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The Chiee Justice:
The affidavit in this case having been made two days before the writ issued, the judgment can not be supported, — Wilson v. Arnold, 5 Mich. 98. This point being decisive of the case, we do not think it proper for us to hear an argument upon the other questions raised, and give opinions upon them.
Judgment reversed.
Manning J. did not sit in this case. | [
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Manning J.:
The circuit judge was correct in admitting the evidence, and in stating the law, which is too clear to admit- of doubt.
The statute of 1834 (Comp. L. §3289) did not give a married woman full power to control her separate property without the assent of her husband. It provided all property acquired by her before or after marriage should continue to be her separate property, and should not be liable for her husband’s debts, engagements, or liabilities; but prohibited her from giving, granting, or selling or removing it from the premises of her husband' without his consent, except authorized thereto by the judge of probate, &c.
By the act of 1855 (Comp. L. §3292), these restrictions are removed, and she is authorized to contract, sell, transfer, mortgage, convey, devise, or bequeath it, in the same manner, and with the like effect as if she were unmarried. The object of the Legislature, by this act- — -for the language is too clear, it seems to us, to admit of any doubt — was to give the wife the same power, in all respects, over her property that she had before marriage. That it was intended to release or emancipate such property from the common-law rights and dominion of the husband, is not only obvious from the language referred to, but from the additional fact that the statute also provides that actions may be brought by and against her in relation to such property as if she were unmarried. — Comp. L. §3294.
It follows, as a necessary consequence, that the authority given by her to defendants to remove the property, was competent evidence for defendants.
The judgment below must be affirmed.
All the Justices concurred. | [
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Martin Ch. J.:
Barnard & Coe are admitted to have been “partners in the lumbering business, owning lands in St. Clair county as such partners, and manufacturing lumber therefrom.” While such partners, Coe subscribed the name of the firm to the articles of association of the Plank Road Company, but without Barnard’s knowledge or consent. This subscription, it is claimed, made Barnard a stockholder in the Company.
No rule is better settled than that one partner can not bind his co-partner by any contract not within the immediate Scope of the partnership, unless with such co-partner’s knowledge and consent. Each . partner is an agent for all the members of the firm, in the transaction of all business of such firm; but as to matters foreign to such business, he is regarded as a stranger. The general business of the firm being that of manufacturing lumber, and the ownership of land as incident thereto, the subscription to stock in ar corporation, or to articles of association for the creation of one, was not an incident of such partnership. Incidental benefits would not authorize one partner to bind his fellow, and no authority so to bind him is shown.
And the knowledge and assent required to bind the co-partner must be established by evidence affirmatively showing it, or from which it may be clearly inferred. This is sought to be established from the fact that assessments were made, and their payment demanded of the firm, which were unresponded to; and it is urged that it was Barnard’s duty, upon such demands, to repudiate any interest in the Company, aud that his silence should be construed into a recognition of his relation as a stockholder. Now, a demand either through the mail, or personal, is sufficient to bind a stockholder, but not to create one. If the person of whom demand is made be not one, it is not his duty to disclaim the character of stockholder; it is enough that he does not respond to such demand. The simple admission that demand was duly made of the firm, is not one of a personal demand of Barnard, nor is it of any thing more than a fact— its effect being a question of law. There is no evidence, nor any admission, in the case, that knowledge of the demand ever came to Barnard; and certainly none that he ever, by any Avord or act, recognized any connection with the Company.
The liability of Barnard is also sought to be established from the testimony of Johnson. This testimony is objected to, as inadmissible under the case as presented, and for general incompetency.
We do not regard the stipulation as the making of a case, but only as an admission of facts for the purpose of obviating the necessity of producing witnesses to prove them. Any other facts necessary for either party to show, could still be proven.
The testimony was competent as tending to show the interest of the partnership in the road, but falls far short of being sufficient to establish, or of tending to fix, any liability upon Barnard.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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Campbell J.:
Emiliette Moyer, claiming to be heir-at-law of the de-, cedent, filed a petition in the Probate Court of Wayne county, to compel an account from the administrator. He opposed, the order on the ground that the petition was not properly verified; and no issue having been made upon any fact, but the administrator claiming that no sufficient showing-was- made of an interest in the claimant, the probate court granted the application. The administrator appealed to the. circuit court, where the cause jwas heard upon the papers,, without any issue having been framed or tendered, and the decree of the probate court was reversed. The case is. brought here by certiorari.
An objection is made to hearing the cause at this term,, because no sufficient proof of notice of argument appears. The plaintiff in error has produced an affidavit of Mr. Rex-ford, who swears that he served notice regularly, and filed proof of such service with the clerk of this court, in whose, office it appears to have been mislaid. This is. certainly proof enough until denied by affidavit. The case, is properly-before us.
It is also objected that certiorari will not lie in the case. No motion having been made to dismiss, and the objection having been made for the first túne in the brief submitted by leave since the hearing, we are not inclined now to con-, sider the objection. We are strongly inclined to the opinion that the case is a proper one for that writ, and shall there-, fore sustain it for the reasons mentioned. The question, may, however, be- considered as open for argument hereafter-in a proper case, if one should arise.
I the probate court, the decree was granted upon the¡ petition alone, so far as appears; and the question to he considered first is, whether that is, in form, sufficient. We have no hesitation in saying that its allegations are ample. It avers the heirship of the claimant; and the facts entitling her to an account, if she is such heir, are fully set forth. There is no rule or statute requiring such petition to be verified in any particular manner, or at all. A probate judge is not required to act upon a petition which he has not some reason to believe is presented in good faith, and in a real interest; and he may properly require an absolute verification of any thing whereon his action is required upon the merits; but where the party complained of is cited to appear, and has an opportunity of controverting the facts, there is no rule, of which we are aware, which renders it imperative on the probate judge to decline receiving an unsworn petition. The affidavit attached to the petition is upon information and belief, but is sufficient to show the good faith of the application; and the citation was entirely proper.
The fact of heirship was material; and had the respondent put it in issue, so that evidence could have been taken on it, the petitioner would have been compelled to establish her case by proofs. But, without the tender of an issue upon it, no proofs could be taken, and the case must stand upon the sufficiency of the allegations of the petition.— Foster v. Wilber, 1 Paige, 537; Thomson v. Thomson, 1 Bradf. S. R. 27. In the latter case it is held that, even if put in issue, the petition will entitle the claimant to relief, if absolutely verified, and met by no counter-proof. The form of the issue is not required to be technical, but it must be raised in some way. And as the ease stood, the probate court appears very properly to have treated the objection as going to the sufficiency of the allegations.
In the circuit, court, no issue having been certified up, and no new issue of fact having been framed, there was nothing to pass upon but the sufficiency of the case made by the petition; and, as we have already remarked, we think that case properly framed to entitle the claimant to the relief prayed.
The decision of the circuit court must be reversed, and that of the probate court affirmed.
Manning and Christianoy JJ. concurred. Martin Ch. J. did not hear the argument. | [
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The Chief Justice:
The notice is sufficient. Rule 1 governs this case.
Rulo 7 is as follows: “The day on which any rule shall be entered, or order, notice, pleading, or paper served, shall be excluded in the computation of the time for complying with the exigency of such rule, order or notice, pleading or paper, and the day on wliicb a compliance therewith is required, shall be included, except where it shall fall on a Sunday, in which case the party shall have the next day to comply therewith. When by the terms of any order an act is directed to be performed instanter, it shall be done in twenty-four hours.”
The rule in respect to notices of hearing is as follows: “Rule 26. Notices of special motions, and of the argument of calendar causes, when necessary, shall be notices of at least ten days where the attorney of the adverse party resides over one hundred miles from the place of hearing; if over fifty and less than one hundred miles, of at least six days, and in all other cases of at least four days; and a copy of the affidavits and other papers on which any motion shall be made, shall be served with such notice.” | [
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Manning J.:
This is an action to recover damages for not shipping' from Sandy Hill, in the state of New York, to the plaintiff at Ontonagon, a circular saw mill purchased of defendant, and agreed to be shipped by him on a certain day.
On the 81st of July, 1855, plaintiff contracted with defendant for a circular saw mill. The contract price was four hundred and thirty-five dollars, of which sum two hundred and thirty-three dollars were paid at the time, by a note at six months, payable, with use, at the Michigan Insurance Bank, and the balance was to be paid in cash on the 15th of August, when the mill was to be shipped. The declaration, after setting out the contract, alleges the balance of the purchase money ivas paid in cash on the 15th of Au_ gust, and that defendant did not ship the saw mill on that day, nor until two months thereafter, and that by reason thereof it did not reach its place of destination during the season of navigation, and was detained until June of the following year; whereby the plaintiff sustained great damages in the hiring of laborers, who remained idle, in expenses, and money paid out in preparing his ground and buildings for immediate use of said circular saw mill in the sawing of lumber, and in stocks and provisions which became useless; and had been deprived of large gains and profits which he might and would have made in his said business of sawing lumber, for which the said circular saw mill ivas intended, and for which he, the said plaintiff, prepared at large expense, &c.; to his damage of three thousand dollars.
On the trial, plaintiff introduced depositions of some half dozen witnesses to prove the matters set out in the breach of his declaration. Certain parts of each one of these depositions tvere objected to, and by the rulings of the court Avere not permitted to go to the jury; and exceptions were taken by plaintiff. I do not deem it necessary, nor is it my intention, to notice these exceptions further than to remarlo that the object of plaintiff, it would seem, and the tendency of nearly if not all of the excluded testimony, was to prove the profits pilaintiff might have made in the business of manufacturing lumber had the circular saw mill been shipped on the day mentioned in the contract, and arrived at Ontonagon in due course of navigation early in the fall. I have no hesitation in saying, in this view of the case, the judge was correct in ruling as he did — so far, at least, as the testimony offered related to profits.
If the object of plaintiff had been that, as he had shown every thing save the circular saw mill was in readiness to commence the manufacture of lumber, he was entitled to recover as damages what the use of the mill was worth in a complete state, for the time he was deprived of its use by reason of defendant’s not performing his contract; and if the rejected testimony had tended to prove the value of such use, the question would have arisen whether that was the proper measure of damages in such a case; but as it is' not before us, I do not wish to be understood as expressing an opinion one way or the other. By use of the mill I do not mean what might have been made in running it, for that is more properly profits, but what would have been a fair rent for it by one wanting it for the manufacture of lumber. The question, however, would not have arisen had the excluded testimony been received; 1st, Because it did not appear plaintiff had a boiler and engine on the mill premises, or at Ontonagon, for propelling the saw; and, 2d, Because none of the witnesses were examined as to the value of the use of the mill. I am therefore of opinion the testimony was properly rejected by the circuit court.
There was evidence before the jury of the price of the mill, and of its payment, and that it was not shipped by defendant at the time he agreed to ship it, nor until some time thereafter, and that it did not reach Ontonagon until some time in May, 1856, and that if it had been shipped at Sandy Hill on or about the 25th August, it would have reached Ontona gon in thirty days by the usual course of -transportation. With this evidence before the jury, the judge charged them that plaintiff was entitled to nominal damages only, to which an exception was taken; and the question is now before us, whether the charge was correct under the circumstances. I think in such a case the plaintiff’ is entitled to damages equal to the interest on the four hundred and thirty-five dollars, the price paid defendant for the mill, for*the time he was deprived of the possession of it in consequence of defendant’s breach of the contract. It is the same as though he had retained the mill in his possession, against the will of the plaintiff, for the same length of time. Will the law permit the vendor of an article to retain both it and the money he has received for it, against the will of the vendee, without making the latter compensation equivalent to the use of the money he has given in exchange ? Shall he be permitted to say to the vendee, “ If you had had the article in your possession you would not have used it”; or that, “The use of it would not have been equivalent to the interest on the money you paid me for it, and therefore you have sustained no damages, or less damages than you demand.” It is not for a wrong doer to put such a question to the injured party; and if put, the reply to it is, “ If you had delivered me the article and I had retained the money, the law would give you the money with interest. The article I purchased of you, in my hands, is equal to the money I gave you in exchange; otherwise I should not have purchased it of you: why not then give me interest on its cost while you have wrongfully withheld it from me? Suppose it was Power’s Greek Slave I had purchased of you at $10,000,— would the law require me to show the use I would have made of it, and the dollars and cents I had lost in being deprived of the possession of it ? The law is guilty of no such absurdity.”
I think the judgment below should be reversed, and a new trial granted.
Christiancy J. :
I agree entirely with my brother Manning in the result at which he has arrived, and substantially in his reasoning, as applicable to the peculiar facts of the case.
Profits, as such, are generally excluded from the estimation of damages, not because they are profits, but because, in the greitt majority of cases, they depend too much upon contingencies to be estimated Avith reasonable certainty. And this Avould be emphatically true of the profits sought to be estimated by the loose data furnished by the evidence in tins cause.
But in cases (and they are numerous) where profits are but another name for the ordinary use of a thing, qr where they may be estimated with reasonable certainty by the test of experience, I think the loss of such profits as just a claim, and as certain a ground for the estimation of damages, as any other item or cause of loss or injury; since, in such cases, they fall as clearly within the principle of compensation, and must have been as much within the reasonable contemplation of the parties, in making the contract, or in committing the act which has occasioned the damage.
Take, for example, the case of an ordinary grist mill for custom work, Avhich has been for years in operation, the profits of which have been nearly uniform one year with another, at any particular season — say five dollars per day. An injury is done to the dam which requires ten days to repair, during which the mill is compelled to lie still. In such a case, there can be no better or more certain criterion of damages, than these profits, which, added to the cost. of repairing, would constitute the damages against the party causing the injury.
As to the propriety of alloAving interest on the price of an article, in lieu of nominal damages, in a case like the present, and where the plaintiff fails to prove any other damages, I can entertain no doubt. The plaintiff had paid the purchase price (the principle would be the same if he had given his^note on interest). The defendant contracted to ship the mill by a certain day, and failed to do so until so late a period that it did not, and could not, arrive until many months after it would have arrived if shipped by that day. The plaintiff had a right to rely upon the contract, and during this whole period of delay, was entitled to the use, full property, and control of the mill. But the defendant, during this long period, wrongfully detains both the mill and the money which was paid for it, and prevents the plaintiff from any use, control, or disposition of it. I think these facts constitute, in law, conclusive evidence of a loss to the plaintiff equal to the interest of the money; or, in other words, that in the absence of any other evidence of damage, the law must infer damages equal to the interest. To refuse this would be to encourage the breach of such contracts, on the slightest grounds; as in many cases the actual damages for the breach, though very serious, hardly admit of adequate and certain proof. The interest of the money, though less, in most cases, than the actual damages, must, it seems to me, approach much nearer the standard of just compensation than the uniform nominal damages of six cents.
A party who, in violation of his contract, detains from another the use and dominion of an article for any period of time, has no right to say that the party whose rights he violates would not have used it if he had had it. This is a question with which he has no concern; its decision belongs exclusively to him who is entitled to the property, and who has a right to decide for himself, according to his own views of convenience or profit, how or when he will use it, or on what terms he will dispose of it. To permit such a defense would be to sanction a most unwarrantable interference with the exclusive rights of others in the management and disposition of their own property.
Take as strong a case as can be suggested for the defendant. A wrongfully detains from B a cider mill during the spring months, or a sleigh during the summer. Can A he allowed to set up in bar of all but nominqj damages, for this detention, that B could not have used the article if he had had it ? B was entitled to control his own property in his own way, as much as if it had been money in his pocket; and though he could not make cider with his mill, or ride in his sleigh, during those particular months, he might have sold them and converted them into money, had he not been wrongfully deprived of the opportunity. No man is compelled to keep and use any article for any specific purpose. The right of sale is the most valuable incident of personal property, and every man is entitled to judge for himself, not only how he will use, but when and under what circumstances he will sell it; and he who deprives him of that right by wrongfully detaining it, can never be allowed to complain if he is compelled to pay damages equivalent to the interest of its value, since, if sold, its price would have earned that interest.
I think, therefore, in all such cases, a plaintiff should be allowed to elect to take the interest of the price of the article, or such other damages as he may be able to prove. But he should not be entitled to both.
Campbell J.:
Being of opinion that there was no error in the court below, it is only necessary, in connection with the views expressed by my brethren, that I refer to the question whether the judge erred in not instructing the jury to allow interest in the absence of any special damages.
The damages in a case like this, as all agree, arise, not out of the depreciation in the value of the machinery as an article of merchandise, but in the loss of its possession as a thing of use.
In the absence of proof of the amount of damage, the law, upon proof of a breach of contract, does not defeat the right of action entirely, but infers some damage. Where money is detained, it infers a precise amount, which is always the legal rate of interest. But where it draws such an absolute inference in the absence of proof, it will not allow the introduction of proof to enhance or diminish the rate. It fixes a rule for all cases. In the absence of a statutory rule, I am aware of no authority which, where there is no proof, will infer any amount of damages which is more than nominal.
The principle of allowing the recovery of damages for the breach of contracts, is universally based upon the rule of compensation. The law imposes no penalty, as such, but simply requires the defaulting party to make good such pecuniary loss as his neglect has entailed upon the other party. And this loss is to be ascertained according to established principles. The loss or gain of the defaulting party is not the test. He is bound to make good such injury as the complaining party can show that he has sustained, Avithin the legal rules, and he is liable to nothing more. His own gains do not aggravate, neither do his own losses dimmish, the losses of his adversary. There are peculiar cases, such as marriage promises, in which a Avider range is alloAved for proof of injury, but even there, compensation is the only thing aimed at. And in no case, so far as I can ascertain, in the absence of any statutory rule, has the Hav inferred any specific amount, of damages beyond nominal damages.
If a party wishes to recover more than these, the amount of injury is as clearly a specific issue, as the breach of the contract. I do not perceive how the law can determine by inference that the use of a chattel is worth one sum or another, whether the rate inferred be minimum or maximum. As a matter of every day experience, we knoAV that farming implements are of no use at certain times, and of use far beyond interest on their cost at others. The same difference exists in the use of other chattels. If a farmer has paid for his plow, and does not need the use of it, and no one else could use it either, it can make no difference to him that the money he has paid is Avorth seven or ten per cent, to the manufacturer. The only question he is concerned with is how much has he been damaged by not having his plow.
No rule which the law can adopt will give adequate relief in all cases; and I think the only safe rulé is to leave the amount of damages on contracts, in all cases not regulated by law, to be settled upon proof. The rule of interest may be a convenient one, but it is no nearer the actual damage in each case than any other arbitrary basis of computation, while it, in my judgment, is more in the nature of a penalty than of remuneration.
I think the judgment should be affirmed.
Martin Ch. J. did not sit in this case.
Judgment reversed. | [
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Manning J.:
The power to allow temporary alimony pending proceed-, ings for a divorce, and to compel the husband to furnish the. Wife with pecuniary means to defend or prosecute the suit on her behalf, is incident to divorce cases. It is necessary to the-ends of'justice. "Without this power in the Court, the wife-that should have no separate property of her own, would be. without the requisite means of prosecuting or defending the-, suit, and of supporting herself in the mean time. The statute-relative to divorces says: '“The Court may, in its discretion, require the husband to pay any sum necessary to enable the-Wife to carry on or, defend the suit during its pendency,” but makes no mention of temporary alimony. So far as the stat-. ute goes, it is only confirmatory of the common law, which had been acted upon by our courts before we had any statu-, tory provisions on the subject. — Story v. Story, Walk. Ch. 421.
The decree below having been adverse to the wife is not, we think, of itself a sufficient ground for denying the motion. The certificate of two counsel shows the appeal was taken in good faith. We think this sufficient to warrant us in exercising-the discretion with which we are vested.
The other Justices concurred.
Motion granted.
On a subsequent day, on affidavits showing that defendant had been guilty of repeated acts of adultery pending this appeal, Maynard moved for an order vacating the allowance of alimony above made.
The counsel for defendant, now declining any further to appear in the case, the Court, on looking over the affidavits, granted the motion.
See also McGee v. McGee, 10 Ga. 477; Patterson v. Patterson, 1 Halst. Ch. 389; Amos v. Amos, 3 Green Ch. 171; Mix v. Mix, 1 Johns, Ch. 108; and North v. North, 1 Earb. Ch. 241.
The wife is entitled to temporary alK monyup to final decree, notwithstanding a jury, upon a feigned issue, has given a vor-.. diet of adultery against her. — Stanford v. Stanford, 1 Edw. Ch. 317. And see, Williams v. Williams 3 Barb. Ch. 628. | [
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Campbell J.:
This case comes up on appeal from the decree of the Circuit Court for the County of Wayne, enjoining the collection of a judgment which the defendant Granger recovered against the City of Detroit. His co - defendant, Cicott, was made a party, as sheriff, holding the execution which had Issued upon the judgment.
The bill was filed by Amos Chaffee, as a tax payer of the city of Detroit, on behalf of himself and the other tax payers, claiming that the judgment was rendered against the City by collusion and fraud, upon an illegal claim, in violation of the city charter. The case shows the following facts:
Granger, in 1855, took contracts to build certain sewers. Although all but one of his contracts were parol, they were made according to certain others which were in writing, and their terms thus made certain. When his work was completed, the city authorities declined paying certain items, on the ground that he was precluded by the terms of his contracts from making any charges for them. Those items con sisted of a charge of $212.54 for excavations for pools and. pipes connected with the main sewers, to discharge surface water, and $94.12 for extra excavation rendered necessary by a change in the form of the sewers in certain places where quicksands made the change desirable. Upon an application to the Common Council, a resolution was passed, authorizing the controller to pay the first charge,'if Granger could satisfy him that when the contracts were’taken he expected to get pay for such work.
The controller refused to allow the claim, and Granger brought suit for the whole amount of his charges. The City pleaded to his declaration; and Granger having noticed the cause for trial, the Common Council authorized the city attorney, on his advice, to withdraw the plea, and allow judgment to be rendered for $306.66, the amount of the principal claimed, without interest. Granger accordingly obtained a judgment for that amount, and was proceeding to enforce the same by levy and sale of land, when enjoined in this suit.
There is nothing in the case in any way justifying the charge of fraud, and if complainant was entitled to any relief, it must depend upon the illegality of the acts in proof. We proceed, therefore, to examine the case upon this subject.
That the authority to confess judgment was, for the purposes of this suit, substantially equivalent to the allowance of a claim, is not unfairly assumed by the complainant, and the validity of such allowance is attacked, first, because the resolution was not approved by the mayor; secondly, because the balances left out of the sewer funds, specially voted for those sewers, had been transferred to the sinking fund, and therefore no moneys remained applicable to any such claim; and, thirdly, because the claim was illegal, and, therefore, the Council could not allow it under any circumstances, because absolutely forbidden by the city charter. It is unnecessary to consider the arguments upon the peculiar form - of any of these transactions; for a court of equity can generally reach the substantial intent of any acts in question before it. In this case no Special difficulties of this kind arise, for the merits are very fully in evidence.
Whether the resolution required the approval of the mayor depends upon whether the claim was a debt or liability lawfully contracted before the adoption of the new charter. That it was a previous debt — if a debt at all — there is no doubt. It had been before the city authorities for more than a year. The ■suit at law was commenced in 1856, and the amended charter was passed in 1851. The approval of the mayor is, therefore, of no consequence here, because the legality of the claim would dispense with it, while its illegality would probably render such approval nugatory.
Neither is it material that the sewer balances had been transferred to the sinking fund. That transfer was made while Mr. Granger’s claim was pending. The balances were ample to meet his claim. If his claim was lawful, those funds were ■liable to pay it, and could in no sense be considered as savings. Nothing can properly go into the sinking fund from any sum provided by law for specific public works, except a surplus over and above their cost. The contractors are by law compelled to look to the fuM voted for specific improvements, and no transfer into the sinking fund can be permitted to deprive them of the right to receive their laAvful pay out of the moneys raised for the works. When the contractors are fully paid, any balance may be called a surplus, and legitimately belongs to the sinking fund.
Was, then, the demand of Mr. Granger such that it could be lawfully allowed by the Common Council? Both items are set up as legitimate charges under the contracts, one being for excavations required to be made under the original agreement, and the other being for extra work required to carry out changes made by authority, and contemplated by the ■original agreement as payable for upon the same basis as the specified work. The prices for both sets of work are strictly in accordance with the prices paid for similar excavations under the express terms of the .contracts. The only inquiry therefore is, whether the Council could legally, in view of the terms of the agreements, make the arrangement complained of. Complainant claims that by the contracts, each set of pools and pipes was to be completed for a fixed sum, and that this covered the excavations as well as the iron and mason work. The terms of the written contract referred to are as follows: The contractor agrees to build a “public sewer ” according to the plans and specifications, and that he will go on and steadily prosecute the “ excavating and building of said sewerf &c. The contract goes on to provide for the quality of material, for the right of supervision and alteration, &e., and so far as it embraces any covenants on the part of the contractor, no reference is had to any particular parts of the work. The term “ sewer ” embraces every part of it. It is only when we reach the terms of payment, that any thing is found relating to the details of the work. The clause in controversy reads as follows:
“ The parties of the first part hereby agree to pay, and the party of the second part to accept, in full payment for said work, labor, and materials, as follows, viz.: For excavating, digging, and filling back, the earth in said sewer, the sum of forty-two (42) cents per cubic yard; for furnishing materials and iron castings, and inserting cast iron openings, and building said sewer, the sum of eleven dollars per rod. For furnishing materials and iron castings, and constructing pools, the sum of forty dollars per set. For furnishing materials and iron castings, and constructing manholes, the sum of ten dollars per manhole.”
This is quoted from the contract appended to the bill, made with Mr. Granger. The others, made with other parties, and upon the basis of which he made his parol contracts, are substantially like this.
Taking this contract as it reads, and apart from any circumstances which might show a practical construction of any of the phrases between the parties, we do not think the language of the instrument in any way violated by extending the right to charge for excavation to any part of the work. The terms used in reference to the materials and construction of pools, are identical in meaning with those applied to the mere iron and mason work of the mam body of the sewer, and if the one does not include excavation, we see no reason why the other should. The amount, of excavation would vary in different pools and connecting pipes, with the depth of the main sewer, just as that in different parts of the main trunk would. If either party needs to resort to proof of surrounding circumstances, it would devolve upon the City to do so, in order to change what we deem to be the natural construction of the contract.
The facts in this case show that when Granger took the contracts in question, the usage had been in conformity with this construction, and therefore he would be equitably entitled to pay on this basis under any circumstances.
The other item in dispute is for extra work in changing the form of the sewers to put in plank bottoms. The evidence shows that the actual extra expense to Granger, in addition to the plank which was furnished by the City, is the amount he claims in his bill of items. But it is claimed that he agreed if the City would furnish the plank, that he would make no further extra charge. The committee on sewers authorized the change, which was deemed necessary by all parties. The testimony of Sheley is that he said to Granger that “ all the extra we are to furnish is the plank,” and Mr. Granger consented to it. This seems to have been about all that was said about it. There was undoubtedly room for misapprehension on both sides on this matter, but inasmuch as the expense of the change covered much more than the plank, and as the contract expressly provided that where authorized changes were made, additional compensation should be made for any additional work, upon the same terms provided for in the contract for similar work, we think Mr. Granger might very naturally suppose that the extra referred to applied merely to the body of the sewer in its changed form and dimensions. It could not be assumed, without clear proof, that he agreed to make changes at his own expense.
In the view we have taken of the facts, we think the claim of Mr. Granger was properly allowed by the Council. We are also of opinion that if the matter had been one of doubtful construction, and acted upon in good faith, as this seems'to have been, by the Council, there would have been, upon the facts presented, no just ground for the interference of a court of equity. If courts of equity are called upon to interfere with the action of such municipal bodies, on behalf of the tax payers, the circumstances should be such as to show that the proposed action will be inequitable and injurious to the public interests. No serious doubt could have existed concerning the legality of the larger part of Mr. Granger's claim; and the cost of litigation, if he had been compelled to try his suit at law, would inevitably have exceeded the balance. Under such circumstances, the action of the Council was in no sense injurious to the tax payers, and them burdens could not have been increased by it.
The jurisdiction of Chancery to interfere by injunction to restrain a city corporation, on a bill filed by a private citizen on behalf of himself and others, was questioned on the argument, and the point fairly raised. We are not, however, prepared to express an opinion upon that subject; as this case is, in our judgment, entirely unsupported on the merits,-we shall dispose of it upon the facts, and reserve the consideration of the jurisdictional question for future disposal.
The decree of the coimt below must be reversed, and the bill dismissed, with costs.
The other Justices concurred. | [
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MARKMAN, J.
The question presented to this Court is whether expert testimony is necessary in the circumstances of this case. We conclude that it is.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs’ fifteen-day-old son was admitted to the Pediatric Intensive Care Unit (PICU) at the University of Michigan Hospital, where he was treated for a respiratory problem. During his' stay in the PICU, he was under the care of Dr. Joseph R. Custer, the Director of Pediatric Critical Care Medicine. When the infant was moved to the general hospital ward, physicians in that ward discovered that both of the infant’s legs were fractured. Plaintiffs sued Dr. Custer and the hospital, alleging that the fractures were the result of negligent medical procedures, namely, the improper placement of an arterial line in the femoral vein of the infant’s right leg and the improper placement of a venous catheter in the infant’s left leg.
Defendant physician is board-certified in pediatrics and has certificates of special qualifications in pediatric critical care medicine and neonatal-perinatal medicine. Plaintiffs’ proposed expert witness, who signed plaintiffs’ affidavit of merit, is board-certified in pediatrics, but does not have any certificates of special qualifications.
Before discovery, the trial court denied defendants’ motion for summary disposition, concluding that plaintiffs’ attorney had a “reasonable belief” under MCL 600.2912d(l) that plaintiffs’ proposed expert witness was qualified under MCL 600.2169 to testify against the defendant physician, and, thus, that plaintiffs’ affidavit of merit was sufficient. After discovery, the trial court granted defendants’ motion to strike plaintiffs’ expert witness on the basis that he was not actually qualified under MCL 600.2169 to testify against the defendant physician. The trial court dismissed plaintiffs’ claim with prejudice, concluding that plaintiffs could not reach a jury without expert testimony.
The Court of Appeals affirmed the trial court’s ruling that plaintiffs’ proposed expert witness was not qualified under MCL 600.2169 to testify against the defendant physician (Judge BORRELLO dissented on this issue), but reversed the trial court’s dismissal on the basis that expert testimony was unnecessary under the doctrine of res ipsa loquitur, i.e., an inference of negligence may be drawn from the fact that the infant was admitted to the PICU with healthy legs and discharged from the PICU with fractured legs (Judge TALBOT dissented on this issue). Unpublished opinion per curiam, issued October 21, 2003 (Docket Nos. 239868-239869). The case was remanded for trial.
Defendants sought leave to appeal the Court of Appeals decision that res ipsa loquitur applies and that expert testimony was not necessary. Plaintiffs sought leave to cross-appeal the Court of Appeals decision that their proposed expert witness was not qualified under MCL 600.2169 to testify against the defendant physician, We heard oral argument on whether to grant the applications or take other peremptory action permitted by MCR 7.302(G)(1). 471 Mich 890 (2004). We have granted plaintiffs’ application for leave to appeal as cross-appellants. In this opinion, we address only defendants’ application for leave to appeal.
II. STANDARD OF REVIEW
This Court reviews de novo decisions on summary disposition motions. Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004).
hi. ANALYSIS
Plaintiffs argue that expert testimony is unnecessary in this case because of the doctrine of res ipsa loquitur. In a medical malpractice case, the plaintiff must establish:
(1) the applicable standard of care, (2) breach of that standard of care by the defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. [Locke v Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994).]
See MCL 600.2912a. Generally, expert testimony is required in medical malpractice cases. Locke, supra at 230.
This Court has long recognized the importance of expert testimony in establishing a medical malpractice claim, and the need to educate the jury and the court regarding matters not within their common purview.... While we have recognized exceptions to this requirement, the benefit of expert testimony, particularly in demonstrating the applicable standard of care, cannot be overstated. [Id. at 223-224.]
However, if a medical malpractice case satisfies the requirements of the doctrine of res ipsa loquitur, then such case may proceed to the jury without expert testimony. Id. at 230. Res ipsa loquitur is a Latin term meaning, “[t]he thing speaks for itself.” Black’s Law Dictionary (6th ed).
[R]es ipsa loquitur ... entitles a plaintiff to a permissible inference of negligence from circumstantial evidence.
The major purpose of the doctrine of res ipsa loquitur is to create at least an inference of negligence when the plaintiff is unable to prove the actual occurrence of a negligent act.... •
In a proper res ipsa loquitur medical case, a jury is permitted to infer negligence from a result which they conclude would not have been reached unless someone was negligent. [Jones v Porretta, 428 Mich 132, 150, 155-156; 405 NW2d 863 (1987).]
In order to avail themselves of the doctrine of res ipsa loquitur, plaintiffs must meet the following conditions:
“(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence;
(2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;
(3) it must not have been due to any voluntary Action or contribution on the part of the plaintiff”; and
(4) “[e]vidence of the true éxplanation of the event must be more readily accessible to the defendant than to the plaintiff.” [Id. at 150-151 (citations omitted).]
With regard to the first condition, this Court has held that “the fact that the injury complained of does not ordinarily occur in the absence of negligence must either be supported by expert testimony or must be within the common understanding of the jury.” Locke, supra at 231. In this case, whether a leg may be fractured in the absence of negligence when placing an arterial line or a venous catheter in a newborn’s leg is not within the common understanding of the jury, and, thus, expert testimony is required. That is, plaintiffs needed to produce expert testimony to support their theory that the infant’s injuries were not the unfortunate complication of a reasonably performed medical procedure. As this Court explained in Jones, supra at 154:
[I]n a normal professional negligence case, a bad result, of itself, is not evidence of negligence sufficient to raise an issue for the jury.. .. Something more is required, be it the common knowledge that the injury does not ordinarily occur without negligence or expert testimony to that effect.
In a case where there is no expert evidence that “but for” negligence this result does not ordinarily occur, and in which the judge finds that such a determination could not be made by the jury as a matter of common understanding, a prima facie case has not been made, and a directed verdict is appropriate. [Emphasis in original.]
Whether, “but for” negligence, the newborn’s legs would not have been fractured is not a determination that can be made by the jury as a matter of common understanding. As the trial court explained:
Whether the fractures could have occurred in the absence of someone’s negligence is an allegation that must be supported by expert testimony; the procedures [the infant] underwent are not within the common knowledge of a reasonably prudent jury. Furthermore, whether fractures of the kinds suffered by [the infant] are possible complications arising from the types of procedures performed during [his] stay at the Pediatric ICU is knowledge that is exclusively within the expertise of the medical profession.
And, as Judge TALBOT in dissent in the Court of Appeals explained, “[ajssuming that the fractures may have been caused by the placement of the lines in the infant’s legs, the risks associated with the placement of arterial lines or venous catheters in a newborn infant, and whether fractures ordinarily do not occur in the absence of negligence, are not within common knowledge of a reasonably prudent fact finder.” Slip op at 9. Because we do not know whether the injury complained of does not ordinarily occur in the absence of negligence, we cannot properly apply the doctrine of res ipsa loquitur.
Plaintiffs argue that, even if res ipsa loquitur does not apply, expert testimony is not required because the alleged negligence was within the common understanding of the jury. For the same reason that we conclude that res ipsa loquitur does not apply here — whether a leg may be fractured in the absence of negligence when placing an arterial line or a venous catheter in a newborn’s leg is not within the common understanding of the jury — we conclude that this latter exception to the requirement of expert testimony also does not apply.
IV CONCLUSION
Expert testimony is required because whether a leg may be fractured in the absence of negligence when placing an arterial line or a venous catheter in a newborn’s leg is not within the common understanding of a jury. We have granted plaintiffs’ application for leave to appeal as cross-appellants, and will determine whether plaintiffs’ expert is qualified, within the meaning of MCL 600.2169, to testify against the defendant physician. Accordingly, while we now hold that this case cannot proceed to a jury on a res ipsa loquitur theory, the entry of final judgment in this case must await our determination of the expert-qualification issue.
Taylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J.
That order states:
On December 9, 2004, the Court heard oral argument on defendants’ application for leave to appeal the October 21, 2003, judgment of the Court of Appeals and plaintiffs’ cross-application for leave to appeal. Plaintiffs’ cross-application for leave to appeal is again considered and it is GRANTED. The parties are directed to include among the issues to be briefed: (1) what are the appropriate definitions of the terms “specialty” and “board certified” as used in MCL 600.2169(l)(a); (2) whether either “specialty” or “hoard certified” includes subspecialties or certificates of special qualifications; (3) whether MCL 600.2169(1)03) requires an expert witness to practice or teach the same subspecialty as the defendant; (4) whether MCL 600.2169 requires an expert witness to match all specialties, subspecialties, and certificates of special qualifications that a defendant may possess, or whether the expert witness need only match those that are relevant to the alleged act of malpractice. See Tate v Detroit Receiving Hosp, 249 Mich App 212 (2002); and (5) what are the relevant specialties, subspecialties, and certificates of special qualifications in this case.
The American Osteopathic Association’s Bureau of Osteopathic Specialists, the Accreditation Council for Graduate Medical Education, and the Council of Medical Specialty Societies are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the questions presented in this case may move the Court for permission to file briefs amicus curiae. [473 Mich 856 (2005).]
“Res ipsa loquitur” is the “[r]ebuttable presumption or inference that defendant was negligent, which arises upon proof that the instrumentality causing injury was in defendant’s exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence.” Id.
Our dissenting colleagues criticize us for deciding defendants’ application for leave to appeal separately from plaintiffs’ cross-application for leave to appeal. However, it is only logical to determine whether expert testimony is required, the issue raised in defendants’ application for leave to appeal, before determining whether plaintiffs’ proposed expert is qualified to testify, the issue raised in plaintiffs’ cross-application for leave to appeal. If we were to determine that expert testimony was not required, there would be no need to determine whether plaintiffs’ expert is qualified to testify. Because we have determined in this opinion that expert testimony is required, we must next determine whether plaintiffs’ proposed expert is qualified to testify. Because of the complexities and the importance of the latter issue, we have granted plaintiffs’ cross-application for leave to appeal. However, because we have already reached a decision on the former issue, and because we believe that the Court of Appeals erred in its analysis of the res ipsa loquitur doctrine, we issue our opinion on this former issue today.
Justice CAVANAGH concludes that “the trial court abused its discretion in not granting plaintiffs’ motion for an extension of time to add a new expert witness.” Post at 10. Because plaintiffs have not appealed the trial court’s decision denying plaintiffs’ motion for an extension of time to add a new expert witness, we do not address this issue. | [
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Williams, J.
This case concerns a constitutional attack on a Detroit refuse collection ordinance which is no longer in effect. Plaintiffs brought suit to recover money spent for refuse collection during the effective period of this ordinance.
While a number of constitutional deficiencies are advanced by plaintiffs, we need only deal with a single dispositive constitutional issue, namely:
(1) Was Detroit ordinance 442-G violative of equal protection in that waste from certain apartment buildings with more than four units was improperly classed as "commercial” and subject to charges for refuse services provided free to others in a like class?
We answer this question in the affirmative.
Two additional nonconstitutional questions are advanced by the parties:
(2) Are plaintiffs estopped from complaining about Detroit ordinance 442-G as they "voluntarily” chose to comply with its terms?
(3) Did the trial judge err in not awarding exemplary damages?
We answer both of these nonconstitutional questions in the negative.
I —FACTS
On June 26, 1969, the City of Detroit adopted ordinance 442-G which, inter alia, amended the existing Detroit refuse collection ordinance by adding waste produced by "multiple dwellings of more than four units” to the classification "commercial wáste” (§ 25-1-1). Specifically exempted from this new "commercial waste” category were "condominiums and cooperatives” (§ 25-1-1). 442-G left unchanged the existing collection fee applicable only to commercial waste in excess of 20 bushels per month (§ 25-1-30). 442-G further provided for Common Council discretionary reduction or waiver of fees "upon petition by any non-profit or limited dividend federally subsidized housing development for low to moderate income families, or by a bonafide non-profit, charitable or eleemosynary organization * * * ”. (§ 25-1-29.)
Plaintiffs, the class of owners of newly affected multiple dwellings, filed suit on July 10, 1969, alleging unconstitutionality. Shortly before trial, 442-G was repealed in its entirety. However, as of that time, due to 442-G’s implementation, approximately $1,600,000 in refuse charges had been paid to the city and an undetermined amount to private contractors. During the pendency of the proceedings, the trial judge, Wayne County Circuit Judge George T. Martin, fortunately ordered all refuse charges collected under the new ordinance escrowed. Approximately $1,170,000 remains in escrow pursuant to that order.
On August 12, 1971, the trial court found for plaintiffs on equal protection grounds but did not allow exemplary damages nor liability of the named individuals as defendants. Both sides ap pealed. The Court of Appeals reversed the trial court’s finding of unconstitutionality. 45 Mich App 7; 205 NW2d 819 (1973). Proceedings were stayed by the trial court pending appeal to our Court. We granted leave on July 13, 1973. 389 Mich 816 (1973).
II —IMPROPER CLASSIFICATION
The question whether or not a particular legislative enactment violates equal protection for want of proper classification of subject individuals or entities is not susceptible to facile determination. Voluminous case law exists on the subject of the appropriate test to be utilized in such an. analysis. In three relatively recent majority opinions of this Court, Chief Justice (then Justice) T. M. Kavanagh pulled together the threads of past opinions of our Court and the United States Supreme Court, essentially elucidating two tests to guide judicial scrutiny of suspect enactments:
(1) Are the enactment’s classifications based on natural distinguishing characteristics and do they bear a reasonable relationship to the object of the legislation? Fox v Employment Security Commission, 379 Mich 579, 588; 153 NW2d 644, 647 (1967); Beauty Built Construction Corp v City of Warren, 375 Mich 229, 235; 134 NW2d 214, 218 (1965); Palmer Park Theatre Co v High land Park, 362 Mich 326, 346; 106 NW2d 845, 855-856 (1961).
(2) Are all persons of the same class included and affected alike or are immunities or privileges extended to an arbitrary or unreasonable class while denied to others of like kind? Fox v Employment Securities Commission, 379 Mich 579, 589; 153 NW2d 644, 647-648. (1967); Beauty Built Construction Corp v City of Warren, 375 Mich 229, 236; 134 NW2d 214, 218 (1965); Palmer Park Theatre Co v Highland Park, 362 Mich 326, 347-348; 106 NW2d 845, 855-856. (1961).
Applied to the instant factual situation, we hold that inclusion of multiple dwellings with more than four units in the fee-paying "commercial waste” category while multiple dwellings with four or less units and condominiums and cooperatives were excluded, was a constitutionally improper classification violative of the state and Federal guarantees of equal protection. Const 1963, art 1, § 1; US Const, art XIV, § 1.
In reaching this conclusion, we are heavily influenced by the careful findings of fact of the able trial judge, George Martin, in this cause. Findings of fact will not be set aside by appellate courts unless found to be clearly erroneous. GCR 1963, 517. Analysis of the lengthy trial record strongly supports the accuracy of Judge Martin’s factual conclusions. The following findings are of significant import on the issue of improper classification:
"There was no difference in the collection of refuse from condominiums and cooperatives on the one hand, and multiple dwellings of 5 units or more chargeable under Ordinance 442-G on the other hand. The City of Detroit did not incur any greater expense in collecting refuse from multiple dwellings with 5 or more units than from condominiums or cooperatives.
"One of the reasons claimed for exempting cooperatives and condominiums was because the ownership differed from the conventional, i.e. landlord-tenant type of multiple dwelling. One DPW Commissioner who proposed exemption of condominiums and cooperatives in Ordinance 442-G did not know that units of condominiums and cooperatives could be rented at a profit. In an FHA insured condominium project, no more than 80% of the units need be sold as condominiums and the developer of the condominiums may and often does rent the remaining 20% of the units as an income producing enterprise.
"None of the officials of the City of Detroit appears to have made a study of the extent of garbage disposers and multiple dwellings, or the scientific analysis and study of the amount of refuse generated by single and multiple dwellings of various sizes, locations, and occupancy.
"Although the City of Detroit claimed that a basis for exempting dwellings with 4 or less units under Ordinance 442-G was their lack of profit potential, it made no survey of such dwellings to ascertain if they were income producing or designed to produce income.
"In enacting Ordinance 442-G, the City of Detroit did not consider the character of the waste generated in granting exemptions to dwellings with 4 units or less. Four family dwellings were intended to achieve a profit and were bought and sold on that basis.
"Multiple dwellings with 4 or less units were in direct competition for tenants with multiple dwellings chargeable under Ordinance 442-G, and by reason of such charge, multiple dwellings with 5 or more units were placed at a competitive disadvantage.
"Prior to enactment of Ordinance 442-G, the cost of refuse collection and disposal from multiple dwellings was paid out of the general fund of the City of Detroit.
"An owner of a multiple dwelling with more than 4 units in effect paid two refuse collections and disposal fees, to-wit:
"a) The fee chargeable under Ordinance 442-G;
"b) Some portion (either about 4% or about 22%) of his City of Detroit tax bill.
"The City of Detroit did not incur any greater expense per unit in collecting and disposing of refuse from dwellings with more than 5 units than it did in collecting and disposing of refuse from dwellings with 4 or less units. The same is true of the non-profit, charitable or educational institutions and subsidized housing which were not charged by the City of Detroit.
"During the time Ordinance 442-G was in effect, there were approximately:
"a) 300,000 single family dwellings in the City of Detroit;
"b) 52,000 two-family dwellings in the City of Detroit;
"c) 8,000 three- and four-family dwellings in City of Detroit;
"d) 4,420 multiple dwellings with more than four units which were not occupied as cooperatives or condominiums located in the City of Detroit.”
These factual findings, which we adopt, well-depict 442-G’s constitutional infirmity. No "natural distinguishing characteristic” was adduced at trial bearing a "reasonable relationship to the object of the legislation”. The City of Detroit, for example, in claiming the object of securing refuse collection fees only from profit-making properties, failed to show that excluded properties, e.g., multiple dwellings with four or less units and condominiums, were not profit-making. As well, no demonstration was made by the city of the "natural distinguishing characteristic” of increased expense for collection of refuse at properties included in the fee-generating portion of the ordinance as compared to the like class of excluded properties.
Thus the class of multiple dwellings with any number of rental units and the class of profit-making properties, including condominiums and cooperatives, were not treated similarly under 442-G. The privilege of immunity from the sizeable collection fees involved under this ordinance was granted to one subclass of properties while the plaintiffs’ subclass was arbitrarily denied such benefit. We concur in Judge Martin’s legal conclusion based upon these facts:
"For Ordinance 442-G to declare that 'Domestic waste’ in multiple dwellings of more than 4 units is 'Commercial waste’, is to declare a sudden transformation by name only. Ordinance 442-G attempted a distinction without a difference which is arbitrary, unreasonable, and violative of the equal protection clauses of the Federal and State Constitutions.” (Emphasis added.)
Thus, Detroit City Ordinance 442-G is found to be unconstitutional on equal protection grounds by reason of improper classification of plaintiffs’ subject properties. The Court of Appeals is . reversed on this score.
III —INVOLUNTARINESS OF PLAINTIFFS’ COMPLIANCE
The Court of Appeals held that appellants were estopped from complaining about 442-G as they voluntarily chose to comply with its terms:
"In the case at bar plaintiffs had the options of private contract, private disposition, or the service offered by the city at the price established by the ordinance. Plaintiffs could not possibly be the victims of alleged discrimination in classification or discriminatory enforcement unless they opted for the offered municipal service. Having made their choice they cannot be heard to complain.” 45 Mich App 7,12.
We must disagree.
First, the parties have stipulated and the trial court found that all payments made under and by reason of 442-G "were made under protest and were involuntary in every respect”. Within three weeks of passage of 442-G, plaintiffs notified the city of the involuntary, under protest, nature of all payments made by the plaintiff class.
Second, and most important, the city cannot decide to provide a service and then provide that service in a constitutionally discriminatory manner. We have strongly rejected this "take it or leave it” argument in two recent cases. Alan v Wayne County, 388 Mich 210, 346-348; 200 NW2d 628, 694-695 (1972); Viculin v Department of Civil Service, 386 Mich 375, 386-387; 192 NW2d 449, 455-456 (1971). We strongly reject this argument again today. As we stressed in Alan:
"The principles [sic] of the cases * * * is simply that a citizen, merely because he has no constitutional right to something, cannot be forced to take that something burdened with whatever classification and unfair procedures the Legislature attaches.” 388 Mich 210, 347.
The city could not make plaintiffs the victim of unconstitutional and unfair classification and then turn around and claim that plaintiffs are estopped from complaining because, they continued to make payments while fighting their case. The Court of Appeals is reversed on this point.
IV —EXEMPLARY DAMAGES
One final issue remains to be considered. During the course of the trial of this matter, plaintiffs moved to amend their complaint to add a prayer for exemplary damages claiming that testimony during the course of the trial showed the city’s alleged discriminatory action in passage and administration of 442-G was intentionally motivated. The trial court granted this motion but in its findings of fact and conclusions of law found no exemplary damages to be in order:
"This court is not convinced that defendants indulged in acts of such a flagrant and gross nature as to justify the recovery of exemplary or punitive damages by plaintiffs. The testimony shows that from 1967 to 1969 there was discussion and experimentation in the drafting of a refuse ordinance to obtain extra revenue for Detroit. The testimony shows that city officials were of different minds and beset by conflicting opinions as to the practicality and justice of provisions of an amended refuse ordinance.
"The testimony shows also that the city decided to make profit making businesses pay for their rubbish collections. Actually, the city had insufficient data for a sweeping classification. The city made a mistake in the classifications set forth in Ordinance 442-G. But the mistake was not of the vindictive, wilfull [sic], wanton, malicious nature required for an award of punitive damages.
"Considering the testimony with its showing of the complexity of administering a city government, and the pressures, exigencies, and pull-and-tug of conflicting forces in the enactment of this city ordinance, exemplary or punitive damages are not awarded in this case.”
Upon review of the testimony and numerous exhibits introduced in the trial court, we note that much strong evidence was adduced at trial pointing to the city’s knowledge of 442-G’s discriminatory classification and application. Most damning was the presence in the record of a letter dated May 9, 1968, from Harold Hood, Assistant Corporation Counsel to Robert Toohey, Commissioner of Public Works. In this letter, the legal advisor of the city communicated its conclusion that certain fee exemptions, as part of the existing administrative practice, were without basis in law. Subsequent passage of 442-G on June 26, 1969, did not affect this conclusion. Nonetheless, the exemptions ruled discriminatory by the city’s own counsel remained in administrative effect during the . operative period of 442-G.
Without question, the action of the City of Detroit, ignoring the conclusion of its own legal counsel that its administrative practice was unlawful, was far from commendable. However, we are confident that the trial judge in his very careful analysis of the case was aware of this but felt nonetheless that exemplary damages were not warranted. Consequently, we will not, even consid ering the above, disturb the trial court’s conclusion on the issue of exemplary damages. As noted in Section II of this opinion, supra, the trial court’s findings of fact will not be set aside unless clearly erroneous. GCR 1963, 517. There is evidence in the record supporting this finding of lack of "vindictive, wilfull [sic], wanton, [or] malicious” conduct. In the absence of one of these forms of intentional conduct, no exemplary damages are in order. 9 Michigan Law & Practice, Damages, § 5, p 16. The Court of Appeals, because of its disposition of this matter, did not consider this issue. We affirm the trial court denial of exemplary damages.
V —CONCLUSION
For the reasons outlined in Section II, supra, we hold Detroit City Ordinance 442-G to be unconstitutional on equal protection grounds due to its improper discriminatory classification of the plaintiff class.
We further hold for the reasons outlined in Sections III and IV, supra, that plaintiffs are not estopped from challenging this ordinance by the act of making payments to the city or to private contractors by reason of the operation of 442-G, nor do we upset the trial court’s denial of exemplary damages.
The Court of Appeals is reversed. The trial court judgment is reinstated. This cause is remanded for further proceedings not inconsistent with this opinion.
No costs, a public question being involved.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Levin,, and J. W. Fitzgerald, JJ., concurred with Williams, J.
The individuals named as defendants held the Detroit city offices of Commissioner of Public Works, Commissioner of Health, Commissioner of Police, Commissioner of Buildings & Safety Engineering, and City of Detroit Corporation Counsel.
Without extended discussion, we most recently utilized these same two tests in Reich v State Highway Dept, 386 Mich 617, 622-623; 194 NW2d 700, 702 (1972); Browning v Michigan Department of Corrections, 385 Mich 179, 189; 188 NW2d 552, 556 (1971); and Baldwin v North Shore Estates Association, 384 Mich 42, 50-52; 179 NW2d 398, 402-403 (1970).
We would be remiss in our appellate and supervisory duties if we did not make note at this point of the peculiar nature of the Court of Appeals opinion in this cause. The Court of Appeals disposed of the issue of improper classification, and all of the- issues in this case, without direct citation of authorities. 45 Mich App 7; 205 NW2d 819 (1973). Instead, the Court adopted a unique approach:
"It is to be noted that we have included no excerpts from the record nor citations from case precedent in this opinion. It is intentional. As our case load constantly increases, so perforce does the number of opinions. Brevity becomes more and more essential. In a case such as this which involves settled principles, lengthy excerpts from other cases is of little benefit to the trial bench or the profession. The same is true of quotations from the trial record.
"For the benefit of those who may want research assistance we ' append a list of cases from the excellent briefs of both parties and others from our own research.” 45 Mich App 7, 14-15.
We today specifically disapprove of this appellate practice. The appellate process of disseminating written opinions is not intended to provide the Bench, the Bar, and the parties with bare conclusory analysis and a list of abstract principles of law. The very point of appellate opinions, rather than summary orders, is the explanatory application of abstract principles to particular fact situations. In the instant case, this Court and the parties to this litigation had no way of ascertaining which, if any, of the citations in the appendix were intended to support the Court’s conclusions with regard to improper classification. We recognize the tremendous burdens of the Court of Appeals’ ever-increasing docket. Nonetheless, we will not lend our imprimatur to the use of appellate opinions which do not hew to the established practice in Michigan of informing the parties, the Bench, and the Bar of the precise grounds for decision of the legal questions in controversy.
We recognize that this letter points to the issue of discriminatory application of 442-G, an issue we specifically do not reach today. However, reference to this letter is made in this part of our opinion as an indication of the knowledge and attitude of the City of Detroit administration relevant to the issue of exemplary damages. | [
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Levin, J.
A reasonable man could properly conclude that the taxicab driver could have avoided the accident if he had been more alert and exercised due care.
The Court of Appeals is reversed. The judgment n.o.v. is set aside and the cause is remanded for entry of judgment on the jury’s verdict for plaintiff.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Williams, and J. W. Fitzgerald, JJ., concurred with Levin, J. | [
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M. S. Coleman, J.
FACTS
Defendant is appealing the decision of the Court of Appeals to affirm his conviction by a jury of voluntary manslaughter. He was sentenced to 2 to 15 years with the recommendation that he serve only the minimum term,
The incident occurred on Memorial Day 1971. Defendant was at the home of Mr. Ellis Samon. An argument began between Mr. Samon and a young neighbor. The youngster was ordered to leave the Samon yard. He did, returned and was again ordered to leave.
The child returned a third time accompanied by his 15-year-old brother. Mr. Samon was not present and defendant ordered the boys to leave. The older boy threw a piece of wood at defendant’s car.
When again ordered to leave, the older boy said that he was going to get a gun. He went to his home and reappeared at the back door with an object which defendant claims he thought was a gun. Defendant was himself armed with a pistol. He fired and fatally wounded the boy.
At trial, it was shown that defendant owned the pistol for use in his work as a gas station attendant. He also knew that the boys had access to a weapon. Defendant claimed that his actions were taken in self-defense.
Preliminary matters and the presentation of evidence consumed four trial days. The court instructed the jury as to seven possible verdicts. The instructions cover 45 pages of transcript.
The jury deliberated four days. On three occasions the court repeated portions of its charge concerning possible verdicts. Finally, the court delivered this instruction:
"Our-laws assume that in the process of deliberation and discussion it will be possible for twelve minds to meet, to reach a consensus in which all twelve participated. Now, if this assumption proves to be incorrect in case after case, our system of jury trials as we know it will have broken down and there would have to be some other system devised to replace it. Recognizing this, the high court of our State and I should have said the highest of our State and the highest court of our Nation approves of an instruction by the trial Judge concerning efforts on agreement. The only mode provided by our Constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course, be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other.
"You should consider that the case should, at some time, be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And, with this in view, it is your duty to decide the case if you can conscientiously do so without surrendering your conscientious belief.
"Now, in order to make a decision more practicable and easier to arrive at, the law places the burden of proof on one party in a criminal case and that party is the Prosecution and as I was going to say, the Prosecution is the Prosecuting Attorney. The law imposes that burden on the Prosecution. That burden is upon the Prosecution to establish every part of its case beyond a reasonable doubt and if, at any part of it you’re left with a reasonable doubt, the Defendant is entitled to the benefit of that doubt and must be acquitted.
"But, in conferring together, you ought to pay proper respect to each other’s opinions and listen, with a disposition to be convinced to each other’s arguments.
"And, if on the one hand if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression upon the minds of so many men equally honest, equally intelligent with himself and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth and under the sanction of the same oath.
"If, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated and distrust the weight of sufficiency of that evidence which fails to carry conviction to the minds of their fellows.
"Now, I ask you to try conscienciously [sic] and honestly in your own convictions, to try to arrive at a verdict. If you can arrive at a verdict in individual good conscience, do so.”
The jury left the courtroom at 11:15 a.m. At 2:35 they reached a verdict.
The Court of Appeals affirmed the conviction. Its "review of the instruction complained of demonstrates that People v Chivas, 322 Mich 384 [34 NW2d 22] (1948) and People v Coleman, 21 Mich App 193 [175 NW2d 308] (1970) control”.
ISSUE
Was the Allen -type charge either (1) coercive per se, or (2) coercive in this particular case?
DISCUSSION
I
The instruction delivered by the court is known as an Allen charge. The earliest example is found in Commonwealth v Tuey, 62 Mass (8 Cush) 1 (1851). The Court approved a charge the substance of which was the same as the one quoted above. It said that this "did nothing more than to present to the minds of the dissenting jurors a strong motive to unanimity.” The instruction was "entirely sound, and well adapted to bring to the attention of the jury one of the means by which they might be safely guided in the performance of their duty.” Also see State v Smith, 49 Conn 376 (1881).
The popular name for this instruction results from the United States Supreme Court’s approval of the charge in Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896). The charge was identical to that given in Tuey. The Court said:
"While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury-room. The very object of the jury system is to secure unanimity by comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury-room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself. There was no error in these instructions.”
To date the United States Supreme Court and this Court have sanctioned the use of this instruction. Indicative is Kawakita v United States, 343 US 717; 72 S Ct 950; 96 L Ed 1249 (1952). The United States Court of Appeals for the Ninth Circuit had discussed the Allen charge. See 190 F2d 506. The Supreme Court did not speak to this issue saying that certain allegations of error were "either insubstantial or so adequately disposed of by the Court of Appeals that we give them no notice”.
Michigan
Use of the Allen charge also has long been part of this state’s jurisprudence. In People v Coulon, 151 Mich 200; 114 NW 1013 (1908), the trial court urged the minority to reconsider but further indicated "that no juror should yield his well-grounded convictions or violate his oath”. The trial court also said that "if upon further consideration a juror cannot conscientiously yield, of course he ought not to do so”. This Court citing Tuey, Smith and Allen said such instructions were not erroneous. See People v Tutha, 276 Mich 387; 267 NW 867 (1936).
Compare the decision in People v Engle, 118 Mich 287; 76 NW 502 (1898) where the Court noted a deviation from the Tuey charge and granted a new trial:
"In the present case, however, the jury were not instructed that the verdict to which they agreed should be and must be each individual juror’s own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows; but, on the contrary, they were instructed just the reverse, — that they must each try to be persuaded. We think the court was in error in this instruction, and that its substance had a tendency to make the jurors feel that they must give way their honest convictions upon the merits, and agree with the majority, though they had a reasonable doubt of the guilt of the respondent.”
In People v Kasem, 230 Mich 278; 203 NW 135 (1925), the trial court apparently told the jury that they had a duty to reach a verdict. The court indicated to the panel that it would entail great expense to declare a hung jury. This Court did not regard this as coercing agreement although "what was said might better have been omitted”. Each case must be evaluated on its own facts and circumstances. See People v Digione, 250 Mich 206; 229 NW 421 (1930); People v Licavoli, 256 Mich 229; 239 NW 292 (1931) and People v Pizzino, 313 Mich 97; 20 NW2d 824 (1945).
Defendant in the instant case admits that the trial court was most scrupulous in following the language approved in People v Chivas, 322 Mich 384; 34 NW2d 22 (1948). In Chivas, the charge was given after the jury had deliberated into a second day. The Court said:
"In our opinion the court did not tell the jury that it was their duty to agree upon a verdict or tell an individual juror that he must give up his own views and agree with the majority. The jury was instructed to deliberate upon the matters in issue with an open mind, giving due credit to the opinions of others. The jurors were also instructed that the verdict must be the individual verdict of each juror and be the result of his own convictions. We are unable to find any coercion in the instructions given.”
Our decisions lead to the conclusion an Allen charge is not per se coercive. Any claim of coercion must be determined on a case-by-case basis.
II
The Allen charge reached middle age before it received critical attention. Although most state and Federal courts continue to use an Allen -type charge, some jurisdictions have adopted new instructions and of those jurisdictions, some had deficiencies not present in the Michigan instruction.
However, a look at case and comment on the subject may bring into focus the principal concerns involved.
A
The giving of proper supplemental instructions serves a positive end. One author noted "the basic theme that considerations of judicial economy require that jurors reexamine their convictions in attempting to reach a verdict”, and then wrote:
"[T]he interests in avoiding hung juries and in impressing jurors with the necessity to deliberate in good faith with their fellows in attempting to reach a unanimous verdict deserves substantial weight, not merely in terms of judicial administration but in terms of achieving the end product of a fair trial.”
Although the elimination of supplemental instructions might retard rather than promote the interests of justice, courts must guard against coercion.
"Such an instruction is proper only if it serves to start further deliberation. If the charge has the effect of forcing a juror to surrender an honest conviction, it is coercive and constitutes reversible error. In order to determine whether the Allen instruction has such an influence on the jury, the charge must be examined in the factual context in which it is given.”
The optimum instruction will generate discussion directed towards the resolution of the case but will avoid forcing a decision.
If the instruction given "can cause a juror to abandon his conscientious dissent and defer to the majority solely for the sake of reaching agreement”, then that charge should not be used. Such results obviously have no place in a fair criminal justice system.
The study presently having a great impact is the ABA Project on Minimum Standards for Criminal Justice. The standards relating to trial by jury were approved by the House of Delegates in 1968. Section 5.4 reads as follows:
"Length of deliberations; deadlocked jury.
"(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
"(i) that in order to return a verdict, each juror must agree thereto;
"(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
"(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
"(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
"(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
"(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
"(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.”
As we shall see, some courts have given great weight to these recommendations.
B
For nearly three quarters of a century the Allen charge had clear sailing in the Federal courts with but an occasional contrary breeze. In 1969 the Seventh Circuit addressed the problem in United States v Brown, 411 F2d 930. The Court rejected arguments that the instruction violated the Sixth Amendment or was necessarily unfair. Noting criticisms, the Court "concluded that it would serve the interests of justice to require” under its supervisory power that district courts prospectively follow the ABA recommendation. They affirmed defendant’s conviction because he could not show the charge given was so prejudicial as to warrant reversal.
In United States v Fioravanti, 412 F2d 407 (1969), the Third Circuit analyzed a charge telling minority jurors to distrust their own judgment, a charge not present in the instant instruction. However, the Court did not reverse the conviction. The charge "was not so prejudicial as to deprive appellant of a fair trial”. The Court did forbid trial judges to "direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his.”
The ABA standards also were adopted in a 5-4 decision by the District of Columbia Court of Appeals sitting en banc in United States v Thomas, 146 US App DC 101; 449 F2d 1177 (1971). The trial court had given an Allen charge but also personally encouraged the jurors to reach a verdict. The Court of Appeals deemed this coercive. The Court did not hold the Allen charge per se coercive but exercised its supervisory powers in adopting the ABA proposals for use in trials conducted after the date of their opinion.
The majority of circuits continue to permit use of the Allen charge particularly if it emphasizes that each juror has to make an individual judgment. In United States v Sawyers, 423 F2d 1335 (1970), the Fourth Circuit noted that the instruction "twice included language emphasizing that no juror should surrender his or her conscientious convictions because of the opinion of other jurors or for the mere purpose of returning a verdict.” The Court further said:
"A calmly dispassionate balanced effort on the part of a trial judge to induce a verdict does not seem to us to invade the province of the jury. What, after all, is the purpose of the judge’s initial charge to the jury? It is not to induce a verdict based upon evidence and the law as he has given it to them? Why is a trial judge in the federal system given the power to comment on the evidence, and to place the burden of proof, and to advise the jury that it is their duty to accept the law as he gives it to them, unless it is to help the jury arrive at a true verdict? If the jurors misunderstand the instructions, no one, we think, would seriously suggest that the judge may not subsequently clarify or repeat them. If, at the same time, he urges further deliberation in an effort to agree upon a verdict, and in doing so his comments are balanced and not slanted toward conviction, we are unable to perceive harm to the defendant.
Also see United States v Bailey, 480 F2d 518 (1973) where the Fifth Circuit sitting en banc reaffirmed their "decisions approving the Allen charge within the limitations therein delineated.”
C
As noted above, the charge which Commonwealth v Tuey validated originally was approved in United States v Allen. In 1968 the Massachusetts Court reaffirmed the holding of Tuey. In Commonwealth v Rollins, 354 Mass 630; 241 NE2d 809 (1968), the Court said the instruction was not coercive and states "merely what an intelligent juror should set as a standard for his own conduct”:
"We think that the language of the Tuey case has stood the test of time as a reasonable method of inviting a jury’s attention, even after the original charge, to considerations which, as reasonable men, they should take into account, without surrendering positions which conscience and careful judgment have led them to adopt. The parties are entitled to have a jury appropriately guided at all stages by the trial judge, whose proper participation is essential to fair trial by jury. The Tuey charge seems to us a method by which a trial judge may assist a jury when requesting them to consider a case further.”
Also see Commonwealth v Richardson, — Mass —; 282 NE2d 95 (1972).
However, the Massachusetts Court recently provided some prospective guidelines. In Commonwealth v Rodriquez, — Mass —; 300 NE2d 192 (1973), defendant’s claim that the supplemental instructions were prejudicial was rejected on the authority of Rollins. "For the future” the Court thought "certain emendations of the Tuey charge are desirable in the interests of the better administration of criminal justice” and prospectively adopted a revised version.
In an appendix the Court printed the Tuey charge with the changes it thought appropriate. The Court said the charge still "has a sting and our approval of it is not to be taken as an indication that it may be used prematurely or without evident cause.” The Court also approved the illustrative charge accompanying § 5.4 of the ABA study.
Among others, Oregon, Alaska and Minnesota also proceeded to adopt the ABA standards. The Pennsylvania Supreme Court prohibited further use of the Allen charge in Commonwealth v Spencer, 442 Pa 328; 275 A2d 299 (1971). The ABA standards were recommended as guidelines. The ruling was prospective only. Defendant’s convic tion was affirmed as analysis disclosed that the jury was not coerced. For a favorable analysis of a supplemental charge, see Commonwealth v Lambert, 450 Pa 130; 299 A2d 240 (1973).
Exercising its supervisory powers, the Illinois Supreme Court adopted the ABA standards and recommended instructions in People v Prim, 53 Ill 2d 62; 289 NE2d 601 (1972). The Court did not totally prohibit use of supplemental instructions. The Court did not feel that "a jury should be left to grope in such circumstances without some guidance from the court”.
The ABA standards were adopted in Maine in State v White, 285 A2d 832 (1972). However, the Allen -type charge was not considered per se coercive, nor did it have that effect in this case. Defendant’s conviction was affirmed.
Vermont also has recently disapproved "the use of such a charge that departs from the substance of the ABA standards”. State v Perry, 131 Vt 337; 306 A2d 110 (1973).
CONCLUSION
Although the majority of state and Federal jurisdictions still approve an Allen -type supplemental charge, an increasing number of courts have found an inherent danger in the possibility that the charge may be coercively worded and applied in some cases. In order to insure fair trials generally and fewer retrials, the better practice has been deemed by many to be that found in ABA standard jury instruction 5.4. We agree in that conclusion and in the proclivity of the various courts to adopt the standard for future use.
Concluding from the standards generally approved by both Federal and state courts and by Michigan precedent, we cannot find the supplemental charge given herein coercive per se. Nor can we objectively say that it was applied coercively in this case or resulted in a coerced verdict. In fact, the great care insured by the trial judge and the extensive thought evidenced by the jury in asking for re-instructions as to particular verdicts produced a verdict quite appropriate to the admitted facts. The totality of this long trial based upon the state of the law at that time precludes any finding of error by the judge or deprivation of constitutional rights of the defendant.
However, we are persuaded that any possible future danger of coercive effect by the giving of an Allen -type charge is one which can and should be avoided. An analysis of recent cases and commentaries confirms our belief that the better practice is to be found in the recommended ABA jury standard 5.4.
Therefore, prospectively from the date of this opinion, the ABA standard jury instruction 5.4 as set forth herein is adopted by this Court. Any substantial departure therefrom shall be grounds for reversible error.
Affirm.
T. M. Kavanagh, C. J., and Swainson, Williams, and J. W. Fitzgerald, JJ., concurred with M. S. Coleman, J.
The court made this observation at pp 289-290:
"In considering such questions, we are apt to lose sight of the fact that jurors are men of intelligence. They fully understand that they are not mere automatons, charged with the duty of voicing the sentiments or desires of the trial court. The majority, if not all of them, have a proper conception of their own duty, and of the duty of the court, and will not be driven to return a hasty or unjust verdict because they might think it in accord with the wishes of the court. Instructions urging agreement if the jurors could conscientiously do so, and stating that absolute certainty that their verdict was right could not be expected, were approved of in Commonwealth v. Tuey, 8 Cush. (Mass.) 1; State v. Smith, 49 Conn. 376, and Allen v. United States, 164 U. S. 492 (17 Sup. Ct. 154).”
See 100 ALR2d 177; 53 Am Jur, Trial, §§ 950-964, and discussion in Poindexter v Commonwealth, 213 Va 212, 191 SE2d 200 (1972), and Kelly v State, 16 Md App 533; 298 A2d 470 (1973).
"As with all supplemental charges urging agreement, the goal of the Allen charge is to prod the jury into fruitful deliberation leading to a verdict.” Note: Supplemental Jury Charges Urging A Verdict— The Answer is Yet to be Found, 56 Minn L Rev 1199, 1203-1204 (1972).
Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge, 53 Va L Rev 123, 125 (1967).
Id. pp 126-127. Also see The Allen Charge: Recurring Problems and Recent Developments, 47 NYU L Rev 296 (1972) noting that "the Allen charge has enjoyed a general acceptance among trial judges as a useful and effective tool for breaking deadlocks which might otherwise result in mistrials”. Considerations of cost and case backlogs must justify "pressuring a jury to reach agreement if a verdict can be achieved without improper compromise.” (p 297.)
"[T]he real issue is not whether any form of supplemental instruction urging agreement is proper, but rather what form the instruction should take.” Note: Supplemental Jury Charges Urging A . Verdict— The Answer is Yet to be Found. 56 Minn L Rev 1199,1210 (1972).
Comment, Defusing the Dynamite Charge: A Critique of Allen and its Progeny, 36 Tenn L Rev 749, 754-755 (1969). Also see Comment: Instructing Deadlocked Juries: The Present Status of the Allen Charge, 3 Tex Tech L Rev 313 (1972) saying the "ultimate test * * * is whether in light of the facts of the case and the language used, the charge operated to coerce a verdict or merely served to generate further deliberation which resulted in agreement”.
A perceptive and most interesting analysis is made in an article On Instructing Deadlocked Juries, 78 Yale LJ 100 (1968). It says at p 129: "We may therefore define a 'properly’ hung jury as one where the persuasion mechanisms, working to full efficiency, will not be sufficient to bring about agreement. In an 'improperly’ hung jury the mechanisms will be sufficient to bring about agreement, but for some reason do not operate at full efficiency. The law’s aim will be to lead improperly hung juries to agreement while leaving properly hung ones unaffected.”
Comment, Deadlocked Juries and Dynamite: A Critical Look at the "Allen Charge”, 31 U Chi L Rev 386, 393 (1964).
See generally Allen Charge: Is the ABA Standard for Instructing Deadlocked Juries More Desirable for Augmenting Judicial Efficiency and Avoiding Coercion? 22 Syracuse L Rev 1167 (1971); Note: Supplemental Jury Charges Urging A Verdict — The Answer is Yet to be Found, 56 Minn L Rev 1199 (1972); The Allen Charge — Recurring Problems and Recent Developments, 47 NYU L Rev 296 (1972); Jury Instructions — ABA Jury Instructions Adopted As Preferable to Allen Charge, 25 Vand L Rev 246 (1972) and The Faltering Allen Charge and Its Proposed Replacement, 16 St Louis U L J 619 (1972).
See, e.g., Judge Brown’s dissent in Huffman v United States, 297 F2d 754 (CA 5, 1962).
The Court subsequently in United States v Silvern, 484 F2d 879 (1973) adopted an instruction which the ABA said was consistent with § 5.4(b). If any other supplemental instruction is used in the 7th circuit, "a resulting conviction will be reversed and remanded for a new trial.”
Brown was followed in State v Garza, 185 Neb 445; 176 NW2d 664 (1970).
See Future Renditions of "Allen" — Type Charges Must Conform to the Standard Approved by the American Bar Association, 9 Hous L Rev 570 (1972) and Bombshell Instruction for Deadlocked Juries: ABA Standard Replaces Allen Charge in District of Columbia, 13 Wm & Mary L Rev 672 (1972).
See the later case service supplement to 100 ALR2d 177.
See United States v Barash, 412 F2d 26 (CA 2, 1969); United States v Wynn, 415 F2d 135 (CA 10, 1969) and United States v Pope, 415 F2d 685 (CA 8, 1969).
The Court said the charge "would be better balanced, and fairer if mention had been made of the duty of the majority to listen and consider any minority viewpoint, for we concede that being in the majority does not necessarily make one right.”
The Court made this observation: "Since the prosecution may obtain a verdict of guilty only if the jury is convinced of the facts alleged beyond a reasonable doubt, whereas the defendant'has the double opportunity of findings consistent with innocence or an inability to determine what the truth is, we think some reasonable degree of encouragement to arrive at a verdict is not inherently unfair to defendants.”
"The Tuey Charge, with Changes. (Deletions are shown by interlining; additions by italicizing.)
“The eniy principal mode, provided by our constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in ¿1 cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that it is desirable that the case must at-seme -time be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men persons more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other, in all cases. In the present case, the burden of proof is upon the commonwealth to establish every part of it, beyond a reasonable doubt; and if, in any part of it you are left in doubt, the defendant is entitled to the benefit of the doubt, and must be acquitted. But, in conferring together, you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments. Andy on the one hand, if much the larger member-of-your panol aro for a-eonviction, a dioconting juror- Thus, where there is disagreement, jurors for acquittal should consider whether a doubt in his- their own mind- minds is a reasonable one, which makes no impression upon the minds of so-many men, others, equally honest, equally intelligent with himself themselves, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And on the other hand, if a majority are for aoquittal, the minority jurors for conviction ought seriously to ask themselves, whether they may not reasonably, and ought not to doubt the correctness of a judgment, which is not concurred in by most- of those others with whom they are associated; and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”
"The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
"It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrend your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose' of returning a verdict.
"You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.”
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M. S. Coleman, J.
Defendants Flint City Councilmen appeal from a judgment and order of the trial court and affirmance by the Court of Appeals (on different grounds), the effect of which would be to prohibit informal meetings or discussions by members of the council pertaining to the business of the city.
The core question is one of construction of two statutes which could be interpreted as in conflict.
The constitutional problems of prior restraint, of freedom of assembly, speech and the press were neither briefed nor argued and so will not be considered. The balancing of rights as exemplified by the now classic observation that your right to swing your arm ends at the tip of my nose was— perhaps wisely — omitted from the issues placed before the Court. This is mentioned only because the trial judge obliquely brought constitutional issues into his opinion.
Although we will eventually construe tlie statutes in question, we cannot in good conscience apply the law to the stipulated facts. These "facts” are too abstract and the problem too important for us to enter into what would be essentially a guessing game. For this reason, we will retain jurisdiction but remand to the trial court for factual testimony.
The agreed statement of facts are:
" 'Flint city councumen have met in City Hall at the request of the city manager on several occasions at which meetings the public was excluded. Subjects of discussion generally effect [sic] overall policy and on occasion, may involve items which may require legislative action at a later date.’ ”
If one were to speculate upon what really occurred in these gatherings, any number of possibilities come into focus. For instance:
1. A firm decision could have been made with only the formalities of a vote remaining.
2. Vague theories could have been tested upon colleagues.
3. A preliminary discussion could have taken place regarding a subject which may or may not ever come to a vote.
4. Legal advice may have been sought from the city attorney.
5. Labor negotiations then taking place may have been the subject.
6. A rumor involving the reputation of an employee could have been discussed.
7. A possible need for land could have been discussed, the knowledge of which might greatly increase the cost to the taxpayers if the probability blossomed into reality.
There are limitless possibilities as subjects of discussion.
However, the "stipulated facts” do limit discussions to those taking place in the city hall at the request of the city manager. The content of the discussions is uncleár and specifically will be the focus of this remand..
We cannot apply the law to facts which we do not have.
For this reason, we remand to the trial court for a factual record concerning the character and content of the discussions and meetings in question. We retain jurisdiction.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Williams, Levin, and J. W. Fitzger- . ald, JJ., concurred with M. S. Coleman, J.
ORDER
Entered December 18.1974. — Reporter.
On order of the Court, the motion for special relief and stipulation filed by the parties is considered.
Now it is therefore ordered, that the motion for special relief is hereby remanded to the Circuit Court for the County of Genesee for consideration. The relief sought is a modification of the injunction issued by the Circuit Court for the County of Genesee pursuant to a stipulation of the parties as follows:
"Wherefore, both parties move this Court to issue an order modifying the injunction heretofore issued in the Circuit Court of the County of Genesee so that such injunction would provide as follows:
" 'The City Council for the City of Flint, or any members thereof, are restrained from meeting in private for the purpose of making a decision or conducting discussions or deliberations which might lead to a decision involving the city government except for the following purposes:
'"1. To consider the employment and appointment, dismissal, suspension or disciplining of any one of the four appointed officials who serve at the pleasure of the Council;
" '2. To consider the appointment or removal of citizens to City Boards and Commissions, provided however, if a decision is reached to remove such an official said official shall have a right upon request to have a public hearing;
" '3. To discuss strategy sessions and interim reports with respect to collective bargaining or potential or pending litigation;
" '4. To consider preliminary negotiations involving the purchase or sale of property, both real and personal, but not involving services or the acquisition thereof, except as provided hereinabove;
" '5. To consider records which are specifically exempt by law from public inspection;
" '6. To consider severe threats of riot or insurrection public knowledge of which, in the opinion of the City Council, would be detrimental to efforts to meet or lessen the threat.
" 'Failure of members of the Flint City Council to abide by this stipulation may result in the commencement of contempt proceedings by the plaintiffs herein.
" 'It shall be the continuing duty of the City Attorney, or his Assistant, as Officers of the Court, to report any violation of the Court’s injunction as modified hereinabove. Failure to do so shall be regarded as contempt of this Court and subject such attorney to contempt proceedings.’ ”
The parties shall notify the Clerk of the Supreme Court forthwith of the entry of an appropriate order or consent judgment by the Circuit Court for the County of Genesee, whereupon this Court will dismiss the appeal presently pending before this Court as moot.
"Members of the Council of the City of Flint are hereby ORDERED to conduct public meetings, at which the Plaintiffs herein, and the general public, are not to be denied admittance, when the said Defendants, their successors in office, vote on or discuss: 1) any ordinance, resolution, Motion or, 2) take other official action proposed by or to the Council dealing with the receipt, borrowing, or disbursement of funds or the acquisition, use or disposal of services or of any supplies, materials, equipment or other property, or, 3) the fixing of personal or property rights, privileges, immunities, duties, or obligation of any person or group of persons.” | [
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Christiancy J.:
The view we have taken of the second question reserved for our opinion, renders it unnecessary to determine the first.
Whether Balch being the junior commissioner of the county, had or had not power to make the order for the dissolution of the attachment, we are all of opinion the sheriff can not be made liable, under the circumstances presented by the case, for obeying the order — he having acted in good faith.
It is true, as a general rule, that a sheriff or other ministerial officer can not justify under process issued by a court or officer having no jurisdiction of the subject-matter. But this rule, we think, is based upon the ground that every man is bound to know the law; and the subject-matter in reference to which the question of jurisdiction arises, can generally be decided by reference to the statute or other public law, itself, without an inquiry into matters of fact which the law does not disclose.
Thus, if a justice of the peace issued a writ of restitution in forcible entry, or of possession in ejectment, or a warrant of commitment to the state prison on a conviction for murder, such writ or warrant would be no protection to the officer, however regular upon its face, because he is presumed to know, and can easily ascertain from the law itself, that the justice has no jurisdiction of the subject-matter, viz., the forcible entry, the ejectment, or the conviction for murder. No fact beyond that which the law itself discloses is necessary to decide the question) because no fact extrinsic the law could give the jurisdiction.
Thus far the principle is clear; and, in ordinary cases, as just as it is clear. But it may well be doubted (though upon this we give no opinion) whether even this principle has not sometimes been carried too far. Thus, it not unfrequently happens when the question is purely one of law, that it is a question of the greatest doubt and difficulty, upon which the ablest lawyers and the highest courts may differ — where, in fact, the law can not be known until decided by the court of last resort. In such cases, the presumption that the ministerial officer knows the law is an extremely violent one; and the rule which requires him to decide at once, and at his own peril, compelling him to respond in ruinous damages, whichever way he may decide, if his decision happen to be wrong, is certainly a rule of great harshness, and difficult to be reconciled with any principle of justice or common sense. And it may well be suggested whether it would not be more consonant to sound public policy, in such cases, to hold the officer justified in obeying the process when acting in good faith, and let the party injured seek his remedy against the party procuring the process, and (in proper cases) the officer issuing it. The case before us, if the facts were all well known to the officer, would still present the question as one of great difficulty; and whatever may be the presumption of law, neither the sheriff nor the learned counsel in this case, with a full knowledge of the facts, could, until judicially determined, have decided with any certainty whether this commissioner had or had not jurisdiction. But the present case does not fall within the rule above discussed; for though the law presumes the officer to know the law, it makes no such presumption in ordinary cases as to matters of fact., of which the laxo gives no information, and which are not disclosed by the process or order which he is commanded to obey. And where the jurisdiction of the subject-matter depends upon matter of fact, the existence or non-existence of which can not be determined from the law, and which is not of public notoriety, the ministerial officer ought not, we think, to be bound to ascertain it at his peril, unless the law has clearly given him the right to demand the information, and to determine the fact.
The statute under which the commissioner in this case' purported to act (2 Gomp. L. pp. 1215 and 1216) gave the circuit court commissioner of the county jurisdiction of the proceeding for the dissolution of the attachment, and to make the order in question. There were two circuit court commissioners; and, giving to the law of 1850 the construction claimed by the plaintiffs; viz., that only the commissioner holding the older commission could take jurisdiction of the matter in question; still the law did not determine which commissioner held the elder commission. Nor did it provide a period when the official term of either should commence, or what should be the date of the re spective commissions. The governor had the power to appoint; and though the length of the official term was fixed at four years from the time of appointment, the date of the commissions might vary a day, a month, or a year; or they might be of the same date. It was not, therefore, a fact of public notoriety. No provision was made for rendering it public, nor by which it could be ascertained in the county clerk’s, or any other county, office. No power is'given to the sheriff to demand inspection of the commissions in the hands of the commissioners, nor to require it from the secretary of state. "We think, therefore, as the law has given the sheriff no jurisdiction to determine the question of fact, no power to demand the authentic information, he can not be bound to determine the fact at his peril; while, if none but the elder commissioner could act, the sheriff could not have refused obedience to the order in this case, except at the peril of being able to show that this commissioner held the junior commission.
Balch was a circuit court commissioner de facto and de jure. He had taken jurisdiction of these proceedings colore officii; and as to this, the sheriff might well recognize him as the commissioner de facto, at least. He was an officer of the court from which the attachment issued; and though his right, so far as regarded his own protection, might depend upon the prior date of his commission, we can not think this was a fact of which the sheriff was bound to take notice, or which he could assume to decide except at his own peril. Knowing him to be a~ commissioner, and an officer of the court, he had a right to rely upon the presumption that he had not violated his official duty in this proceeding.
We can see little better reason for holding the sheriff bound to know this fact or to determine it, than to know or determine the question, whether the judge of the circuit court, whose process he executes, was duly elected or qualified, or whether the certificate of his election is in due form.
As a question of public policy, it might be mischievous in the extreme to allow, and much more to require, a ministerial officer to sit in judgment upon the rights of judicial officers de facto, whose process or orders he is called upon to obey, and to determine the validity of the title by which they assume to act. The law has provided other tribunals for the determination of such questions. It is therefore very questionable whether the sheriff would have been justified in disobeying the order in this case, if the commissions of the respective commissioners had been laid before him. But upon this we give no opinion, as it is not involved in the case. It does not appear that the sheriff had ever seen, or knew the date of, either commission, nor even that he had received any notice who held the older commission.
It would be difficult, if not impossible, to reconcile all the various decisions that have been made upon this class of questions. Many of them have been carefully examined. But we have thought it best to place the decision in this cause upon a plain and intelligible principle, which, we think, lies at the basis, and constitutes the reason, of most of them, and perhaps all of them which rest upon any sound principle.
As the view we have taken of the second point exonerates the sheriff and his bail from all liability upon the facts as presented in the case, the third question upon which our opinion is asked becomes entirely abstract, and, like the first, unnecessary to the decision of the case: we therefore express no opinion upon it.
It must' be certified to the Circuit Court for the county of Kalamazoo, as the opinion of this court, that the sheriff is not liable for having obeyed the order dissolving the attachment, and that he was protected by that order in delivering the property attached to the defendant.
Martin Ch. J. and Manning J. concurred. Campbell J. did not sit in this case, having been counsel for one of the parties. | [
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Martin Ch. J.:
It is Avell settled that a schedule detailing at large the property conveyed, is not necessary to the validity of an assignment. — See Hollister v. Loud, 2 Mich. 809; Rundlett v. Dole, 10 N. H. 458. It is sufficient to constitute a legal transfer that the property is described with reasonable certainty. If then a schedule be referred to in an assignment, it may, or may not, be a necessary part of such instrument, for the purpose of ascertaining what property is conveyed; and it may, or may not, have the effect to restrict the general words of the grant, according to the context, and the mode in which reference is made to it. No arbitrary rule can therefore be laid doAvn respecting the necessity or effect of a schedule, if one be referred to, but these are to be determined by a consideration of the whole instrument, from which the intent of the parties making it is to be gathered; and such intent, when ascertained, is to control its construction in this respect, as in all others.
A great diversity exists in the reports respecting the construction of debtors’ assignments, and a disposition has been not infrequently manifested to construe them with great technical nicety, sometimes approaching illiberality. This tendency has led to the application of particular and subordinate rules of construction in some instances, in disregard or forgetfulness of those paramount rules which control the interpretation of all other written instruments. The principle most generally applied to the construction of this class of instruments is this: “That if a general clause in an instrument be followed by special words which accord with the general clause, the deed shall be construed according to the special matter.” But in the application of this principle care is not always taken to observe how far the special words accord with the general clause, nor the manner of their application to it; and general words have been controlled and limited in their operation by special words, from an arbitrary application of this principle, although at the obvious sacrifice of the intent of the assignor, as manifested by the whole instrument. The diversity also which exists in the forms of assignments, their subjects, and the manner in which schedules have been referred to, has induced some errors from want of care in observing their dissimilarities.
“In construing contracts, deeds, and other written instruments,” says Selden J., in Platt v. Lott, 17 N. Y. 478, “resort is had to a variety of legal rules for the purpose of aiding in their interpretation; but all other rules are subordinate to that primary rule which requires that every such instrument should be construed according to the intention of the parties. Whenever, from an examination of the writing itself, and on a comparison of its various parts, the intent with which it was executed can be clearly ascertained, that intent is to govern, whether the construction to which it tends is, or is not, in accordance with those minor rules, which arc merely auxiliary to the one great paramount rule referred to. Hence, notwithstanding the ordinary rule, that general words are controlled hr their operation by those which are more particular and specific, if, upon looking at the assignment in this case, we are able clearly to see that it was the intention of the assignors to convey to the assignees th.eir whole property, we are bound to give effect to that intention.”
The cases cited will be found, upon careful examination, not to conflict with this rule, while Driscoll v. Fiske, 21 Pick. 503, expressly recognizes it. — See also Burr. on Assets (2 ed.), 265, 268.
An examination of the deed of assignment from Wallace & Co., and a comparison of its different provisions, leave no doubt in our minds as to the design with which it Was executed. It commences by a recital of the reasons which induced it, and the object sought to be accomplished by it; the reasons being the heavy indebtedness of the assignors, and their utter inability to discharge it with punctuality or in full; and the object being to secure their credi-' tors the póssession of whatever property and effects they were seized of, at as early a day as possible, and to prevent undue sacrifice of the same. It then, in general terms, conveys aE their personal property and choses in action, of ■every name and nature whatever, to the assignees “as the same is more particularly described in the schedule proposed to be hereafter annexed to this instrument, marked schedule A., and especially including all the stock and merchandise” in their several stores, describing their locality, and “ other property, accounts, debts, and demands as herein already intended to be conveyed,” together with all the ashes on hand at their ashery, &c. It further requires and empowers the assignees to take immediate possession of the property and choses in action assigned, and to appropriate them to the payment of their debts. These provisions clearly manifest an intention by the Wallaces to assign •all their property for the purposes expressed in the instrument, and that it should presently operate. And such, we think, was its effect, notwithstanding the reference to a schedule. And so it was evidently regarded by the parties; for the proof is that the assignees did immediately reduce the assignors’ property to possession, as well that specially designated, as other property not mentioned hut obviously regarded as embraced in the general language of the assignment.
But the reference to the schedule is claimed to render one necessary to the conveyance of any property. The difficulty in this case, is from the reference being made in the present tense. If it had been “ as the same is to be more particularly described,” or had a provision been inserted that a schedule should be. made and annexed, no doubt would have arisen respecting the present operation of the assignment, nor of the property covered by it. Such we think to be the true purport of this reference. Language is to be construed by its context; and no one can read this instrument without arriving at the conclusion that the schedule was contemplated to be subsequently made, and was not in existence when the assignment was drawn up. The inartificial manner in which this reference is made can not affect the general and controlling language of the instrument, but such reference should be read so as to accord with it. Now if, as we have already shown, a schedule is not necessary to the validity of an assignment, and if, when one is referred to, it will become necessary or not, according as the language of the whole instrument shall demonstrate such necessity to determine what property is conveyed, it follows that the absence of such schedule, although referred to, does not necessarily render the instrument incomplete, nor authorize the presumption that the assignors had property not conveyed by it.
In Platt v. Lott (supra), where the general words of assignment were no stronger than those in the one before us, the reference to the schedule was as follows: “The same being more fully and particularly enumerated and described in a schedule thereof hereunto annexed,” &c.: the assignment, from a consideration of the whole instrument, was held good to convey all the assignor’s property, whether enumerated in the schedule or not; and the Court says, “This (the reference to the schedule) however by no means indicates an intention to qualify or limit the broad and comprehensive language previously used. A schedule Would, of course, be necessary as a matter of convenience, and as a guide to the assignee; and the provision for its annexation, although it is thereby made a part of the assignment, does not warrant the inference that it was intended that if. any portion of the property of the assignors should be omitted, which might well occur through accident or inadvertence, the title to such property should not pass to the assignee.”
In the case before us, the reference is to a schedule proposed to be annexed; and when this is read in connection with the declared object of the assignment, the desire expressed that the creditors should have possession of all the property and effects of the assignors “at as early a day as possible,” the general words of the grant, and the subsequently declared trust that the assignees should at once, or as soon as practicable, take possession of the property assigned, the idea that such proposed schedule was necessary to the perfection of the instrument, and that nothing was assigned until such schedule should have been made and attached, is without foundation. It is very apparent from a consideration of the whole deed, that this reference to a schedule Avas not made in contemplation- that Avhen annexed it would operate as the only descriptive words of the grant, nor to limit or restrict its general words; but that, as the assignment was by general words, the nature and situation of the property was such as to render one necessary to afford the assignees specific information of the items of property and choses in action thereby assigned, to enable them fully and understandingly to execute them trusts.
The reservation of a power to perfect the schedule at some future time, if it should become necessary, strongly confirms our construction of the reference to the schedule, and clearly shows that the schedule was not regarded as essential to the immediate operation of the assignment, or as limiting its general language. But it was objected that this reservation renders the assignment void. From what has been already said, it follows that the exercise of this reserved right can have no effect to restrict, in any degree, the assignment, or to limit the general words of conveyance, or to divest the assignees of the property reduced to possession, whether scheduled or not. The evident intention in inserting it was to secure the right to furnish evidence of the particular property embraced within the general terms of the assignment, if that should become necessary. The power to perfect the schedule does not imply the power to impair the assignment.
The first three objections to the admissibility of the assignment as evidence were therefore properly overruled. By this construction, we give effect to the instrument consistent with the intention expressed in its preamble, and with the construction put upon it by the parties at the time of its execution, as manifested by the change of the possession of the property before a schedule was made; and when an honest intent can as clearly be inferred from its language as a fraudulent one, we are not at liberty to infer the latter.
It was fourthly objected that the assignment was void as allowing the assignees to sell upon credit. The assumption that they Avere allowed to sell upon credit is based upon the ■following language: “And sell and dispose of the same, either at public or private sale, as they, in their good judgment, may deem best, and upon such terms and conditions as they may deem most advisable, and for the best interest of the creditors, converting the same into money,” <fco. If it be true that the grant of a power to sell upon credit would render the assignment void (which .is a question not before us) yet Ave think; a fair and reasonable interpret ation of this language will not justify the conclusion that -an illegal act was contemplated. This provision is Usually found in the forms of assignments consulted by draftsmen; and it is as reasonable to presume that the intent in following such form, and in using the language, was for a lawful as for an unlawful purpose. It was undoubtedly inserted to clothe the assignees with full and entire power over the assets, and to invest them with every discretionary power which they might lawfully exercise. We think, therefore, as no express power to sell upon credit is given by the assignment, so none should be inferred from this general and, to some extent, technical language; and such are now the later and better adjudications. — See cases cited in Burr. on Ass'ts (2 ed.), 217, 222.
It was lastly objected that the assignment was void as allowing the assignees to delegate their trust without restriction. It is difficult to determine the meaning of this objection. The instrument concludes with the usual clause authorizing substitution, and was evidently intended to clothe the assignees with power to appoint such agents or attorneys ■as they might find necessary for the collection of debts, or the transaction of any other business matters where an agent ■might be necessary, and can not, except upon the most violent presumption, be construed into a power to delegate their trusts. We see nothing unusual or objectionable in this provision.
The assignment being valid, the court below properly refused the first five requests of the plaintiffs in error, in charging the jury. The sixth request of the counsel for the plaintiffs in error was also properly refused.
The assignment itself makes no preference of any private and individual debts of the assignees, but such are placed in the fourth and last class.
It is time that there was evidence in the case showing that individual debts were included in the schedule of preferred debts, but how many, or to what amount, does not appear. Whether the assignors have the right to prefér individual debts, or not, is a question upon which some diversity exists in the courts, of the different states, but one we are not required to determine in the present case, as the current of authorities, and the better opinion, we think to, be that suoh preference does not render the assignment void. — See Hollister v. Loud, supra; Newman v. Bagley, 16 Pick. 570; Kirby v. Schoonmaker, 3 Barb. Ch. 46; Nicholson v. Leavitt, 4 Sandf. S. C. 252; Kemp v. Carnley, 3 Duer, 1; Burr. on Ass'ts (2 ed.), 137, 140.
The judgment of the court below is affirmed, with costs.
Manning and Chkistiancy JJ. concurred. Campbell J, did not sit in the case, having been counsel for one of the,parties. | [
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Campbell J.:
The district judge of the Upper Peninsula, on the 28th day of November, 1856, received a patent for lots 1, 2, 3, 4, 5, and 6, of section 25, and lot 1 in section 36, in township 52 north, of range 40 west, in Ontonagon county, in trust for the several use and benefit of the occupants thereof, according to their respective interests. This purported to be granted under the provisions of an act of Congress, approved May 23d, 1844, entitled “An Act for the Relief of Citizens of Towns upon the Lands of the United States, under certain circumstances.” Lots 1, 2, and 3, in section 25, lie on the east side of Ontonagon River, and extend from its mouth to section 36. Lot 4, in section 25, is an island hi the river, near its mouth. Lots 5 and 6, in section 25, are west of the river. Lot 1, in section 36, is on the east side of the river.
In pursuance of an act of the Legislature of this state, entitled “An Act to authorize the District Judge of the Upper Peninsula to hold in trust and convey Lands included in the Town-Site of the village of Ontonagon, in the county of Ontonagon,” approved January 29th, 1853, the district judge, having obtained this patent, proceeded to act, and awarded lot 6, in section 25, to Henry Selby. Daniel S. Cash and Isaac C. Spalding- severally opposed Selby’s claim, and severally appealed from its allowance.
An objection is made against the right of either Cash or Spalding to appeal from the decision of the trustee, based upon an alleged want of interest.
The consideration of this question renders it necessary to look into the legislation on this subject, to ascertain what rights are provided for and protected under the laws applicable to the case.
By the pre-emption law of 1841, no pre-emption could be made, by any individual, of any sections, or fractions of section, sincluded within the limits of any incorporated town, or which had been selected as the site for a city or town, or any parcel or lot of land actually settled and occupied for the purposes of trade and not agriculture. And by the act of 1844, above referred to, it is provided as follows:
“ Whenever any portion of the surveyed public lands has been, or shall be, settled upon and occupied as a town-site, and therefore not subject to entry under the existing preemption laws, it shall be lawful, in case such town or jdace shall be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judges of the county court for the county in which such town may be situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests ; the execution of which trust, as to the disposal of the lots in such town and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same is situated: Provided, That the entry of the land intended by this act, be made prior to the commencement of the jmblic sale of the body of land in which it is included, and that the entry shall include only such land as is actually occupied by the town, and be made in conformity to the legal subdivisions of the public lands authorized by the act of 24th April, 1820, and shall not in the whole exceed three hundred and twenty acres; and Provided, also, That any act of said trustees not made in conformity to the rules and regulations herein alluded to, shall be void and of none effect.”
As the Indian title to the lands in question was not extinguished until 1842, none of the previous retrospective acts are applicable. The authority of the district judge to act as trustee, was not brought in question on the argument, and we shall not, therefore, inquire into it for the purposes of this investigation.
In order to understand fully the meaning of the act of 1844, it becomes necessary to examine, for a moment, into the rights in land as existing before that.
Agricultural pre-emptions were permitted, under very stringent provisions, confining- the settlers to a bona fide occupation for agriculture alone. The lands in the excepted list were, for reasons of public policy, taken from the power of the agricultural settler; but no one else ivas, by the law bf 1841, authorized to enter them; and under that law they still remained public property, subject to the action of Congress.
Individual rights were not recognized. The only authority in any one to enter such property existed in counties; which were authorized, by an act of 1824, to select one hundred hnd sixty acres for a county-site. — 4 Stat. U. S. 50.
Inasmuch as, until the law of 1844 was passed, no other rights could intervene, it is necessary to see how an agricultural pre-emptioner could ascertain whether the property was subject to his entry or not; for, if not otherwise appropriated, he would clearly have a right to select it and improve it as agricultural land. If covered by an incorporated town, he would have notice of that; for no town ever becomes incorporated without inhabitants; and, if such a thing "were imaginable, he would still have notice, for no town could become incorporated unless by proceedings under the public laws. If actually occupied for trading purposes, there would be the same visible notice. But if any selection could exist not based on occupancy, no such notice could easily be obtained; for, inasmuch as the law does not provide how or by whom such selection may be made, and gave no rights to any one under it, the agricultural preemptioner would not know where to look for information. But there are very serious difficulties in the way of allowing any selection by individuals, beyond their actual occupancy. The pre-emption law requires, whether the preemption be by one, or by two jointly, that the applicants shall make oath that the lands were settled upon and improved in good faith, to be appropriated to the exclusive use or benefit of the applicants, and not for purposes of speculation; and that no contract exists, directly or indirectly, with any other person, for a beneficial interest in it. It would be a singular construction to hold that an agricultural or other settler could evade these plain provisions, and claim a better right where he professedly enters land for speculation, and with the intention of selling it out to others, than where he in good faith observes the law. To hold that an agriculturist can be displaced for another individual, who may hold the entire tract for private purposes, would be to defeat the plain language of the statute. And until the law of 1844 was passed, there could be no pretense whatever in favor of any private claimant of an exclusive right. The law gave rights to no one.
The language of the act of 1844 is confined to lands, actually settled and occupied. It has no reference to “selected” lands, unless the selection is included in the other language. The words “settle” and “occupy” do not first occur in this act — they are to be found in all the previous pre-emption acts. — See Brightly's Dig. 469, et seq., where the various acts are collected. They are inapplicable to any other state of things than a bona fide use and improvement of the land. vAud not only is the land to be entered by the county judges, required to be ''settled upon and occupied as a town-site” but the specific trust is confined to the use and benefit of the occupants. It is claimed for the appellee, in this case, that one person may select one hundred and sixty acres, or two persons three hundred and twenty acres, as a town-site, and so appropriate the whole against all comers, and that the law protects them in such selection, and that the entry by the judges will enure to their benefit. But, if this is so, the language of the act is not well chosen to convey the idea. “Settlement” and “occupancy” are not such terms as convey this meaning; and the term “occupants,” which embraces naturally all of a class, can not be confined to mean a small number, or an individual who may not be an occupant, in fact, at all. But a fatal objection to such a theory is to be found in the fact that the law does not compel the county judges to enter the lands at all; and not only provides no means of securing the property, if they refuse to act, but removes the right of preemption entirely, unless exercised before the public land sales.
It is impossible to harmonize such a law with any such rights as are set up, beyond rights of occupancy. ' The decision of Secretary Thompson, upon the application of the •county judge to enter certain lands laid out at Superior City, •contains so clear an exposition of the law, that we refer to this part of his ojfinion at length. He says:
“The act of 23d May, 1844, entitled ‘An Act for the relief of Citizens of Towns upon the Lands of the United States, under certain circumstances,’ provides for the entry of any portion of the surveyed public lands, which has been, or may be, settled upon and occupied as a town-site.
“The title, as well as the words employed in the body -of the act, clearly demonstrates that the same was intended to ajjply exclusively to actual and existing towns. It refers to, and recognizes, only such surveyed public lands as are settled upon and occupied as a town-site — not such as have been selected by non-resident proprietors or claimants, as the site for a city or town, as exempt from entry under existing pre-emption laws. There is no provision made for filing- nor tice of selection, and the act does not specify or contemplate any proceedings, whereby lands which have merely been so selected, shall be excluded from the operation of other prexemption laws,
“Prior to the passage of this act of 23d May, 1844, it was the policy and settled practice of the Government tp prohibit the sale or acquisition, by pre-emption, of lands which were occupied as town-sites or trading-places; the object of such prohibition being to secure the interests of the Government by the sale of the lands at their enhanced value, in such a manner as might be deemed best to effect that object. „
“That ckrise in the act of 1841, Avhich provides that np portions of the public lands which have been selected, as the site for a town, shall be liable to entry under and by virtue of its provisions, can not, therefore, be construed to recognize the right of selection, by individuals, of portions of the public lands for town-.sites, for their own use and benefit, since, at that time, the system of granting rights of pro, emption on lands of that character, had not only not been, adopted, but loas directly at variance loith the established practice and policy. It was manifestly not the object of the law to withhold from pre-emption such lands as individuals might designate or select, without authority, as the site for a probable or prospective city or town. If so, it would have been within the power of any person or persons to defeat the pre-emption claims of those whom they were itvterested in opposing, by alleging that the p>articular land upon which such claimant had settled, had hitherto been so selected.
“It was, then, not intended by said' clause of the act of 1841 to withhold lands which might be regarded as eligible or adapted for town purposes, from pre - emption, until claimants should have an opportunity to make settlements and im~ provements, since, at that time, it was not to protect the interests or supposed rights of citizens of cities or towns that such lauds were withheld and excluded from pre - emption; and therefore the supposition that said clause would recognize and protect, from the claims of others, such selections, is erroneous.
“The act of 23d May, 1844, further provides that the lands so settled upon and occupied shall be entered in trust for the several use and benefit of the occupants thereof. Referring to the title of the act, ‘For the relief of Citizens of Towns,’ &c., it may easily be determined that by the term ‘ occupants ’ is meant those who are settlers or residents, and that it only embraces the citizens thereof.”
Although this decision conflicts with the opinion of Attorney - General Cushing, it conforms to the views of the land officers; and although none of these opinions are binding on the courts, yet we regard the views quoted as more in accordance with the plain language of the statutes than those expressed by Mr. Cushing. The law of 1844 was, we think, very clearly designed to protect bona fide town settlers, and did not recognize any paramount individual claims over them.
While the entry is only allowed to cover such land as is actually occupied by the settlers, it must nevertheless be made according to the government subdivisions, as the law does not permit these to be broken in upon. Thus, inmost cases, some land would be found in each subdivision not actually built upon, or otherwise occupied for town purposes. These lands, the act clearly contemplates shall be sold; and the proceeds are to be disposed of under regulations to be adopted by the state legislatures, who are to establish rules and regulations for the whole execution of the trust.
Prior to any entry of the Ontonagon land in controversy, the Legislature of Michigan passed an act, approved January 29th, 1853, whereby the district judge was authorized to enter the several lots in section 25, including only so much thereof as was actually within the town - site; and the trustee was directed to convey the lots, first, by granting to James K. Paul such lots as he might hold free from the claims of any other person, by virtue of an equitable preemption claim thereto, and to all other occupants such lots as they held by virtue of contracts with Paul. No other rules or regulations were made on the subject by the Legislature. On the 28th of November, 1856, a patent issued to Judge Goodwin.
The respondent, Henry Selby, at a session held by the trustee for that purpose, presented a claim to the undivided half of lot 6 in section 25, being an original government subdivision west of the river, containing 17 60-100ths acres. From Selby’s petition it appears that he claimed to have entered upon this tract in April, 1855, and commenced cultivar ting and improving it; and that, in 1856, Paul claimed that it was a part of the town-site of Ontonagon, and that he, Paul, was entitled to it, having previously made a plan which covered this, as well as the land east of the river; and that he settled with Paul by taking a deed of an undivided half, on the 21st day of November, 1856, and that they had since jointly occupied it, and caused it to be laid out into lots for improvement and sale, and that no one else ever occupied any portion of the fraction, and that no one else but Daniel S. Cash claimed to have occupied it, or to have an interest in it.
Cash appeared to oppose this claim, alleging himself to be entitled to the lot as an agricultural pre - emptioner, and claiming that it never was occupied for purposes of trade, and never formed part of the town-site.
Spalding appeared, not as a claimant of this particular lot, but as an occupant of other property, within the act of Congress, and also of the act of the state Legislature, whose right had been confirmed by the trustee to such other property. He claims the right to appear on this account, and, as a tax-payer, to protect the property as legitimately belonging to the surplus fund.
Both objected to the right of the judge to proceed until the Legislature should have adopted proper rules and regulations, and both objected to Selby’s claim as not within the law of Congress, and also denied its truth.
__ The district judge denied their right to oppose Selby’s claim on the footing in which they appeared; and proceeded to adjudicate upon it, and allowed it.
It is claimed, on behalf of Mr. Selby, that neither of these contestants has any standing in court. Mr. Cash does not claim to have occupied the land as a trader, or as the inhabitant of a town; and his occupancy would not, therefore, come within the act of Congress. And if any portion of the subdivision had been occupied legitimately for town purposes in advance of him, he certainly could not prevail in an agricultural pre - emption.
But the law did not authorize the judge to enter any subdivision not settled and occupied as a town; and if this was not thus occupied, it was not withdrawn from private pre-emption. Any person claiming such pre-emption must have the right to oppose conflicting claimants. And if an unauthorized grant has been made of land to which he sets up a claim, we think it is his right to appear before any special tribunal undertaking to deal with the lands, to oppose any disposition of them calculated to create new rights, and increase the difficulties of defending himself. If the land was not legitimately entered by the trustee, it should not be disposed of to the prejudice of any just claimant. We express no opinion upon the validity of Mr. Cash’s claim, but we think the nature of it sufficient to give him a standing in court.
The views Ave have already expressed, are decisive of the right of Spalding. While the act of Congress leaves the details of the use of the proceeds of the surplus fund to be regulated by the Legislature, it is very clear that the law designed that they should be used for the common benefit in some way. Many ways exist by which this end might be attained. In the absence of any legal representative at least, we think any one interested had a perfect right to appear and protect the common fund.
Having a right to appear, are the objections raised such as to entitle them to a reversal of the action of the trustee?
It was never intended that the trustee should act, ufttil provision had been made for such rules and regulations as would guide him in all Ms actions, and enable him to do full and complete justice. The views contained in the opinion of Judge Manning, render it unnecessary for us to go into more detail here. We agree entirely in all the main points of the case, and differ only as regards the right in court of Mr. Cash; and we adopt Ms reasons fully.
The first and most essential thing required, was the establishment of some tribunal where the rights of every one in the land in question .could be investigated fairly. The Legislature, by the act of 1853, created the trustee a tribunal, but instead of empowering him to do impartial justice, undertook, by the act itself, to dispose substantially of the whole matter.
The whole tract is given to James K. Paul and Ms grantees. No one else was authorized to be considered, or to receive any relief. Instead of being calculated to carry out the design of the act of Congress, this extraordinary statute is in direct violation of it. The trust can not be legally carried out under such a law.
From the case made by Mr. Selby’s petition, it appears that he has no rights except under this law. His petition shows that the land had not been actually occupied at all, until more than two years after the passage of the act of 1853, and was never occupied in fact, except by himself, and that only as a farm. If so, it formed no part of the town, and therefore could not enter into the trust. The deed from Paul was the only thing which could have given Mm any claim under the act of 1853. There is no evidence before us that he proved any thing beyond this deed. But nothing which conformed to the allegations in his petition, could entitle him to any relief under the trust.
The decision of the district judge must be reversed, and the claim disallowed, and the proceedings annulled for want of jurisdiction in the judge to act.
Christiancy J. concurred.
Manning J.:
Judge Goodwin held the land entered by him in pursuance of the act of the Legislature of 1853, and for which he after-wards obtained a patent, under the act of Congress of the 23d of May, 1844, “in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sale thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory,” &c. Such is the language of the act of Congress under which the patent issued.
Whether the patent includes more land than would seem to be warranted by the act of Congress for the purpose contemplated; or whether the entry was “made in conformity to the legal subdivisions of the public lands authorized by the act,” and the consequence of such variations from the act, if there be any, on the rights of third persons to any part of the land, — are questions not now before us, and on which I do not wish to be understood as having formed an' opinion, one way or the other. For the purpose of the appeals to this court, I shall take it for granted the act of Congress has not been departed from.
Who are to be regarded as the beneficiaries of the trust, and what are their respective rights under it in the land taken for the town, and how are such rights to be determined, are questions difficult of solution. Within certain limits they are, I think, to be determined by the rules and regulations to be prescribed by the local legislature mentioned in the trust.
The act of Congress, on which every thing that is to be done in the execution of the trust rests, and which must furnish a warrant for every thing that is done, it must be confessed, is vague and indefinite in most of its provisions, and particularly so, in regard to the details of the trust. Its language is, “ for the several use and benefit of the occupants thereof [that is, of the town] according to their respective interests.” If the act stopped here, it might with much plausibility be said, that every part of the town is to be deemed to be occupied by some one for town purposes, although parts of it, in fact, might be occupied for agricultural purposes only; and that such parts would, under the trust, belong to the several persons so occupying them. The fallacy of such a construction of this part of the trust is made manifest by the language that immediately follows; “The execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sale thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory.” It is evident from this, a sale or other disposition of portions of the town is to be made by the trustee. But how could this be, if the whole town is to be deemed in the occupancy of individuals? There would not, most certainly, in that case, be any lots for the trustee to sell or dispose of. By the word “ disposal” I understand something else is meant than conveying to an occupant what he is entitled to under the preceding clause. It extends to the proceeds of the sale of lots as well as to the lots. And it is to be observed that, in this connection, nothing is said of occupants, or of their several or other interests in the lots, or in the proceeds of the sale of them. The word “iois” is not in the preceding clause, and as used here would seem to imply a previous platting or laying out of the town; it occurring here for the first and only time in the act. The two clauses clearly have reference to different trusts. The first, a trust for the occupants of the town as individuals; the other a trust for them collectively as a community ■ — • as a corporation when the town is incorporated, or as a quasi corporation when it is not incorporated; — the act authorizing the corporate authorities to enter the land in the first case, and making them the trustees; and the judges of the county court to enter the land, and become the trustees, in the other.
The word “ occupied ” —• “ the land so settled and occupied, in trust,” &o. — means here what is meant by the same word in the preceding part of the act; “occupied as a town-site.” In both cases it is used in connection with the public, and means public occupancy, or an occupancy by the community, as such. And the word “occupants,” immediately following “in trust for the several use and benefit of the occupants thereof,” refers to individuals as such, and means individual occupancy. In the first sense, occupancy includes the whole town; in the other, it includes such part of the town only as is actually occupied by individuals for town purposes. At this point, the power of the Legislature commences, and is to be found in the words “to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory.” By “rules and regulations,” as here used, I understand something more than a mere mode of procedure, to be observed by the trustee in executing the trust. Congress may have intended this, but it seems to me the main, if not only, object Congress had in view was, to leave it with the state or territorial Legislature to define -and fix the limits and objects of the trust internally, and to carry out in detail what Congress had only given an outline of.
My reasons for coming to this conclusion are:
1st. That the act of Congress does not define or mark out the line of demarcation between the two distinct trusts, already referred to — that is, to what extent individual occupancy shall be permitted to displace public occupancy, or the occupancy of the community, as such. One of two things is certain: As this, as well as certain other things I shall advert to, is not done by the act of Congress, it must be done by local legislation, or be left to the discretion of the trustee; and there is nothing in the act from which such a power in the trustee can be inferred, and much to repel such an inference.
2d. That the act leaves it altogether to the local legislature (if the power be not in the trustee) to determine what disposition shall be made, within the objects of the trust, of town lots belonging to the community at large, and of the proceeds of such of them as may be sold. This part of the trust most clearly can not be executed without the intervention of local legislation. The trustee can not sell under the act, because it does not authorize him to sell any part of the trust property, or to make any disposition whatever of moneys that might come into his possession on such sale.
3d. Because the act provides that any act of the trustees, not made in conformity to such “rules and regulations,” shall be void, and of no effect. And,
4th. Because it may reasonably be inferred from the whole act, that Congress intended, as the exigencies of different towns might and would greatly vary, to leave it with the local legislature to adapt the trust to such exigencies, for the reason that it could be better done by the local authorities, with the exigencies of the towns to guide and direct their action, than (by any rules and regulations made by Congress, in advance, and before such exigencies had arisen. Most clearly, this was one object of the rules and regulations mentioned in the act.
It is not to be supposed that Congress intended, by the act of 1844, to encourage speculation in public lands, or to aid a few individuals in making a fortune out of them; but, on the contrary, as settlers on the public lands for agricul ture, had been, and were protected against speculators by preemption laws, that Congress intended, by this act, to extend the same protection to the- citizens of villages and cities, that had grown, or might grow, up on government lands, for commercial and mechanical purposes, and to secure to them severally, at the minimum price, all the land actually occupied by them respectively, for city or village purposes, and to them collectively, for the use of the village or city, such other lands as might be included within the limits of the city or village. But suppose an individual should be in possession of ten or twenty acres of land, in connection with his residence, or place of business; is he to have the whole of it? Would the possession of so large a tract fairly come within an occupancy for town purposes? Again, a much larger piece of ground might fairly be considered as falling within an occupancy for town purposes, in a village Avith feAV inhabitants, than in a city Avith many. I think the rules and regulations to be made by the local legislature, are to have reference to the settlement of such questions, as well as to the disposition of the part of the tOAvn not actually occupied for town purposes by individuals. Shall the part not occupied be platted into lots, and be sold? Shall any of it be reserved for public buildings? For what public purpose shall the proceeds of sale be approriated? These, and the like, questions, are to be answered by local legislation.
The appeal of Cash should be dismissed, as he claims nothing under the trust. Ble says the land Avhich Selby claims does not belong to the trustee, but to him, Cash. If this be so, he must establish his right to it before a proper tribunal. The trustee can not decide the question, or refuse, in consequence of such claim, to execute the trust.
Spalding’s appeal rests on a different ground. He makes no individual claim to the land, but insists Selby has no right to it, under the trust, and that he, Spalding, as a member of the community, has a right to appear and oppose its allowance. The community of Avhich the appellant is a member, and which is interested in the trust, has no separate political existence, or legal organization, through which it can act, or assert its rights; and this, of itself, it appears to me, is a sufficient reason for permitting- one of its members to appear on its behalf. It is necessary, to prevent a failure of justice. When the law recognizes a right, it" will provide a remedy to enforce it.
By the act of January 29th, 1853, the Legislature, I think, failed to do what it should have done under the act of Congress, and did what it had no right to do. The act prescribes no rules or regulations, defining the extent of occupants’ claims, or what land, occupancy for town purposes should include; and omits to make any disposition, by sale or otherwise, of the land not included in such claims. The Legislature also did what it had no right to do, in recognizing individual claims, not founded on occupancy for town purposes; as a right in James K. Paul to “a deed of such lots as he held, or might hold, free from the claim of any other person, by virtue of an equitable pre-emption claim thereto, and to all other occupants, deeds to each, severally, of the lots held by them, by virtue of contracts with said James K. Paul.” In this, the Legislature acted outside of the trust, instead of confining itself to its details.
Selby’s claim, as appears from his original and amended petition, is not based on occupancy for town purposes. It includes the one undivided half of seventeen and one-half acres of land, and is made under a deed from Paul, who claims the other half. And- it is not made to secure to him his residence, or place of business, but for purposes of speculation ; as is evident from that part of the amended petition which states that he and Paul “have caused the same to be surveyed, and laid out into lots, for further improvement and sale.”
I think the allowance of Selby’s claim by the trustee should be reversed, and held for naught.
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Manning J.:
This case is brought here by writ of error, to correct alleged errors occurring' on the trial,’ in the rejection of testimony. Whitwell and Hoover brought an action of ejectment against Emery, in the circuit court of Calhoun county, to recover the premises in dispute, and of which Emery was in possession, claiming title. It appears from the bill of exceptions that on the trial the plaintiffs, to prove their title, gave in evidence a patent from the United States for the land in question, to one Reuben Abbott, dated August 15th, 1833; a deed from Abbott and wife to one Samuel W. Abbott, dated February 25th, 1841; a deed from Samuel W. Abbott and wife to Martha Mathews, dated June 3d, 1842; and a deed from Martha Mathews and her husband to the plaintiffs, dated March 23d, 1844. And defendant having admitted he was in possession of the premises, the plaintiffs rested.
The defendant claimed title to the land under a sheriff’s deed, given on a sale 'of the premises under an execution issued on a judgment obtained by defendant and his wife against Reuben Abbott, on the 6th of December, 1841, in the Circuit Court of Calhoun county. To prove the judgment, he offered in evidence the following entry on the journal of the circuit court, with the files and entries in the case:
'■’■Reuben Emery and Harriet L. Emery v. Reuben Abbott. Dec. 6th, 1841. '
“On hearing counsel in this cause, ordered, on motion of George Woodruff, plffs.’ att’y, judgment for the plffs. on demurrer, and that it be referred to the cleric to compute the amount due on the bond mentioned in plaintiffs’ declaration, and the cleric having computed the amount due by the condition of said bond, at $800, the penalty thereof, to be discharged on the payment of six hundred twenty-four dollars and eleven cents, with costs to be taxed (624.11).”
Also a transcript of a judgment, in this court, in the same cause, affirming the judgment of the circuit court with ten per cent, damages and double costs, on 12th September, 1842. This evidence, with other evidence offered, at the same' time and in connection with it, was objected to by plaintiffs, and rejected by the court; and an exception was taken by defendant.
Admitting the journal entry of the circuit, with the files and entries in the case, did not prove a final judgment, there was proof of such judgment in the certified copy of the proceedings in this court, where the judgment was affirmed, which shows a formal record of the judgment attached to the writ of error removing the cause here.
By the Revised Statutes of 1838, and previous thereto, it was the duty of the clerk of the circuit court to make, in vacation, a complete record in a book, of all cases finally determined, and at the next term to present such book to the judge, who was required to compare the record so made by the clerk, and, if found to be correct, to sign it. — Rev. Stat. 1838, p. 410, §10; Laws of Mich. 1827, p, 124, § 24. In 1839, judgment records were dispensed with in cases settled by the parties before final judgment.— 8. L. 1839, p. 223, §21. By the fee bill of 1840 (8. L. 1840, p. 183), the clerk was to have ten cents a folio for making a complete record in each case, when required to make it by a party, and not otherwise. And by the Revision of 1846, these several statutory provisions were repealed, and we now have no judgment record, properly speaking. The journal entries, files, and office entries, are the only records we have, since that Revision, of judgments in our courts of record. I mention these changes in the law to account for a formal record, signed by the clerk and judge of the circuit court, being in this court, while no record is to be found in the circuit court. Judgment was rendered in the circuit on the 6th of December, 1841, after the act passed in 1840, which act was virtually a repeal of the law requiring judgment records, except when one of the parties required a - record to be made. That one was made, and most probably at the request of the defendant Abbott, who sued out the writ of error, the transcript offered to be given in evidence shows. It was evidence both of such record and of the judgment of the circuit court, and the judge erred in rejecting it.
On the argument it was insisted by defendants in error, that the judgment of the circuit court should be affirmed without hearing the plaintiff in error, although in court, urging a right to be heard, and alleging error in the record, as the same questions had been decided in the court, in this same suit, against plaintiff in error, on questions reserved by the circuit judge on a former trial for the opinion of this court. When this is the case, the court will not, I think, be very likely to hear a second argument without some satisfactory reason for doing so, but will be governed by circumstances and a regard to the rights of the parties.
The questions before us are entirely different from the questions before the court in Whitwell and Hoover v. Emery, 3 Mich. 84. But one of the two questions decided in that case could possibly be made on the bill of exceptions before us, and that is one of no importance to either party, in the present aspect of the case. I allude to the amendment made on the first trial, by the circuit judge, of the journal entry- of the 6th December, 1841. The judge permitted the entry to be amended, by inserting the foEowing words between the words “at,” and “$800,” namely, “six hundred and twenty-four dollars and eleven cents, ordered final judgment for,” so that the entry would read “the clerk having computed the amount due on said bond at six hundred and twenty-four dollars and eleven cents, ordered final judgment for $800j the penalty thereof, to be discharged on the payment of,” &c. If it was necessary to decide whether such an amendment could be made, I should not, by reason of the decision in 3 Mich., feel warranted in refusing to hear counsel upon it, as we have facts before us touching the question that were not then before the court. The journal entry and subsequent proceedings, as the issuing of an execution and the like, were all the court then had to act upon. With all the prior proceedings in the cause before us, it is still my intention not to decide the point then decided, as from the views I have already expressed it is unnecessary.
There is a clerical error in the record of final judgment sent to this court on the former writ of error, in stating the judgment to be for the amount the clerk found to be due, instead of the penal sum of the bond, to be discharged on the payment of that amount. The error, however, is one so manifest from an inspection of the whole record, that it may not' only be amended at any time without notice, but the same force and effect may be given to the record as if it had been amended. The authorities are very full and clear on these points. Instead of naming them, I refer to the brief of counsel for plaintiff in error, where the cases may be found arranged under different heads.
The court, therefore, erred in rejecting the certified transcript of the record of this court; and as the further evidence offered was doubtless rejected on the supposition there was no proof of a judgment, I deem it unnecessary to notice the other assignments of error.
The judgment should be reversed, with costs. | [
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Campbell J.:
The respondent, having been convicted of an assault with intent to commit the crime of murder, alleged exceptions before sentence, and these are certified up for our opinion under the statute.
The first exception was taken to so much of the charge of the Court as defines the various classes of homicide, and instructs the jury what facts must exist to render the accused guilty of the offense charged.
As abstract definitions, we are of opinion that the definitions given are wanting in preciseness, and would not, in many cases, be as accurate as they should be to guide a jury. But it would be very unsafe, in practice, to construe the language of a charge without reference to the facts upon which it is given. In this case, the bill of exceptions sets forth the whole facts; and in determining the legal propriety of the charge, we must bear these in mind. If the whole facts were not before us, it might perhaps be neces* sary to look solely at the general correctness of the rules laid down, as universal propositions.
The facts show that there was no evidence in any way tending to prove that if death had ensued, the homicide would have been either excusable or justifiable. Neither do they tend to show that it would have come within the terms of voluntary manslaughter, for there are none of the elements in the case which would reduce an intentional killing to that grade. Involuntary manslaughter was excluded, because the charge expressly informed the jury that an intention to take life was a necessary ingredient of the offense charged. The facts relating entirely to a case which, if death had ensued, would have constituted murder, there was no error in the charge given which could in any way prejudice the respondent, or mislead the jury to his damage, unless it was in so touch of it as authorized a conviction where the intent was to commit murder in the second degree. This seems to have, 'been the real ground of the exceptions appearing of record, as taken to the charge given; and it was in reference to this that a specific charge was asked, the refusal of which is the ground of the second exception.
We are somewhat at a loss to perceive the exact point of the objection to the charge of the Recorder on this subject. He had already laid it down very distinctly that in order to constitute the offense there must be an express intent to destroy life. If we should hold that murder in the second degree is always an unintentional killing, the refusal to charge as requested could do no harm, because the instructions actually given would prevent a verdict without proof of the more aggravated offense. The jury could not, under the charge, convict of any unintentional offense. But the language of the statute is entirely too plain for controversy. Whenever a man assaults another, intending to commit murder, the crime is complete. The intention to take life under any circumstances which would not render the killing manslaughter or justifiable or excusable homicide, constitutes the offense under the statute. As the questions presented seem to be founded on a misapprehension of the views expressed by this Court in the case of The People v. Potter, 5 Mich. 6, we deem it proper to repeat the explanations given on that occasion, and to define the different degrees of murder under our statute.
Murder at the common law, embraced all unlawful killing done with malice aforethought. Murder under our statute embraces every offense which would have been murder at common law, and it embraces no other crime. But murder is not always attended with the same degree of wicked design, or, to speak more accurately, with the same degree of malice. It may be committed in cold blood, and with much calculation, and it may be committed on a sudden impulse of passion, where the intent is formed and executed in the heat of blood, without any sufficient provocation to extenuate the degree of the offense to manslaughter. In both of these instances, and in the intermediate cases where the design is of greater or less duration, there is the actual intent to take life. Other cases exist, where, in the attempt to commit some other offense which is malum in se and not merely malum prohibitum, human life is taken without an express design to take it, and yet the crime is held to be murder, because resulting from the same species of depravity or maliciousness which characterizes that offense when committed designedly.
The statute, recognizing the propriety of continuing to embrace within the same class all cases of malicious killing, has, nevertheless, divided these offenses into different grades for the purposes of punishment, visiting those which manifest deep malignity with the heaviest penalties known to our law, and punishing all the rest according to a sliding scale, reaching, in the discretion of the Court, from a very moderate imprisonment to nearly the same degree of severity prescribed for those convicted of murder in the first degree. Each grade of murder embraces some cases where there is a direct, intent to take life, and each grade also embraces offenses where the direct intent was to commit some other crime. As the law names all of the offenses, an attempt to commit which renders the person who takes life guilty of murder in the first degree, no difficulty can arise in defining the degree of any murder committed, without the actual design either of taking life or of doing bodily harm to the person assailed.
Except in the cases expressly named in the statute, murder in the first degree requires the existence of a deliberate intention to take life; and any slaying in which a jury should find either the absence of deliberation, or that the intent was to commit another and a lesser injury, must be either murder in the second degree, or one of the lighter grades of homicide. Accordingly, in the case of Potter, where the court below had held that the jury could convict of murder in the first degree upon any proof which would establish murder at common law, we reversed the decision, and held that murder in the first degree, except in the specified cases, could only be made out by proof of express malice, and a deliberate design against life itself. We were not called upon in that case to go any further into definitions, and we accordingly abstained from so doing.
The common law having made no distinction in the offense or its punishment, it is not to be wondered at that text-writers should differ in their views of the exact boundaries between express and implied malice; and the terms are not such as would give a modern jury any very clear idea, without explanation. We think the language of the statute itself, taken in connection -with its context, affords to persons in our times a very fair means of judgment. And the best modern writers have had the good sense to convey their ideas in such terms as are generally intelligible.
When, therefore, following the statute, we hold murder in the first degree to be that which is willful, deliberate, and premeditated, and all other murders to be murder in the second degree, we should be undertaking a task which, if possible, would be exceedingly dangerous to undertake, to enumerate what facts constitute deliberation, and what exclude it. Practically, a jury could rarely find much difficulty in applying the test. Where there is positive proof of previous threats, ill-will, or preparation, and all of such a nature as to lead naturally and clearly to a fatal crime, questions seldom arise. It is where surrounding circum stances are not clearly proven, and where the offense has no established antecedents, that difficulties have arisen in defining it.
In all these cases the circumstances proven must be taken into the account, and the jury must, from the whole facts, determine the intent and the deliberation. Voluntary manslaughter often involves a direct intent to kill, but the law reduces the grade of the offense because, looking at the frailty of human nature, it considers great provocations sufficient to excite the passions beyond the control of reason. But provocations often arise which are of less intensity, and are not in law regarded as sufficient to reduce the crime to manslaughter. If it appears that murder is committed upon a heat of passion engendered entirely by such provocations, and suddenly conceived, such a murder can not properly be called deliberate. But whenever murder is intentionally committed without serious provocation, and under circumstances which do not reasonably account for such an excitement of passion as naturally deprives men of deliberation, common experience teaches us that such an act is wanton, and its perpetrator responsible for it, as in other cases of coldblooded crime. The time within which a wicked purpose is formed is immaterial, provided it is formed without disturbing excitement. The question of deliberation, when all the circumstances appear, is one of plain common sense, and an intelligent jury can seldom be at a loss to determine it. No sane man acts without some cause for his action; and it is not difficult, in most cases of murder, to determine whether the cause was a sudden heat or not. The Recorder, although not precisely accurate in confining all murder in the second degree to intentional homicide, presented very intelligibly the difference in intent between the two degrees.
As murder in the second degree, like voluntary manslaughter, does embrace some cases of intentional killing, he was entirely correct in refusing the instructions prayed for, which would confine the statutory assault with intent to commit murder to the offense which involves a deliberate intent. The intent to kill must undoubtedly be established, as an inference of fact, to the satisfaction of the jury; but they may draw that inference, as they draw all other inferences, from any fact in evidence which, to their minds, fairly proves its existence. Intentions can only be proved by acts, as juries can not look into the breast of the criminal. And where any act is knowingly committed which naturally and usually leads to certain consequences, a jury certainly has the right, in the exercise of ordinary sagacity, to draw the inference that such results are intended.
There is no error in the proceedings, and a new trial is denied. Let it be certified accordingly. | [
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Christiancy J.:
The plaintiffs in error brought an action of replevin in the court below, against defendants Grant and Ellis, the former of whom was sheriff of Saginaw county, and the latter his deputy.
The affidavit described the property in question as being in the town of Hampton in Saginaw county, and the declaration was for the detention of the property at the same place.
The defendants pleaded the general issue, and gave notice with their plea, alleging the taking and justifying the detention at the place mentioned in the declaration, by virtue of two writs of attachment issued out of the Circuit Court for the county of Saginaw, against Lot Frost and Charles Bradley, one dated the 19th and the other the 21st day of September, 1857, and both returnable on the 6th of October, 1857; under which they claim to have seized and to detain the property; and alleging also that judgments were recovered under the respective attachments, one on the 19th and the other on the 21st of November, 1857; and stating the amount of the respective judgments against Frost and Bradley.
On the trial, the plaintiffs claimed the property under a conveyance or bill of sale from Frost and Bradley to them, dated September 19th, 1857; and after proving the due execution of the instrument, and before introducing it in evidence, called Henry M. Bradley as a witness, who, after certain preliminary questions, testified that previous to the 19th of September, 1857, he had charge of the property at Saginaw belonging to Frost and Bradley, as their agent, and that on that day he was employed by the plaintiffs to take charge of the property transferred to them by Frost and Bradley by said conveyance; and that plaintiffs gave him, as evidence of such employment, a written power of attor ney: That he left Detroit on the 19th. of September, and reached Saginaw September 21st, 1857, and immediately took possession of said property for the plaintiffs, except such as had been attached, and continued in possession and management thereof from that time: That the property described in the writ of replevin in this case is a part of the property described in the conveyance of September 19th, 1857: That on 21st of September, 1857, it was in the possession of the defendant Ellis at Hampton, in what was then called Saginaw and now called Bay county, and that he claimed it under an attachment made by him as deputy sheriff. That most of the lumber was in cribs in the river.
The plaintiffs then introduced the conveyance, or bill of sale mentioned, and, evidence showing its filing with the city clerk of the city of Detroit on the day of its, date. They then rested their case.
The counsel for the defendants, to maintain the issue on their part, introduced evidence showing the issue and service of the writs of attachment on 21st of September, 1857, and the recovery of the judgments as set up in the defendants’ notice. And it was admitted that Grant was sheriff and Ellis was deputy sheriff of Saginaw county at the time of said seizure.
The defendants further introduced the deposition of Lot Frost, and also called Henry M. Bradley, who testified to the value of the replevied property, and generally to the manner in which the property described in said conveyance of September 19th, 1857, was disposed of and managed; tending to show that the said conveyance was executed for the purpose of hindering, delaying, and defrauding creditors.
The defendants also inquired of said Henry M. Bradley whether he did not, on or about 21st of September, 1857, say to George W. Bullock, at his store, in Saginaw City, that the conveyance of September 19th, 1857, was made to gain time; and he denied that he so said. The defendants also introduced several other witnesses, whose testimony tended to prove the fraudulent character of said conveyance of September 19th, 1857.
The defendants also called George W. Bullock, who was duly sworn, and the’ defendants offered to prove by him that the said Henry M. Bradley did, on or about the 21st day of September, 1857, in the store of the witness, at Saginaw City, say to witness that the said conveyance of September 19th, 1857, was made to gain time. It appeared on the cross-examination that said witness Bullock was a creditor of Frost and Bradley. The jdaintiffs objected to the evidence, on the ground that the defendants had made Bradley their own witness, and could not impeach him. The court overruled the objection, and admitted the testimony, to which the plaintiffs excepted. And upon this the first error is assigned.
If the plaintiffs had rested their case immediately on the close of the direct - examination of H. M. Bradley, and before the defendants could have an opportunity to cross-examine him, it is clear that their right of cross-examination would not have been cut off; that they might at once have proceeded to the cross-examination, and should have availed themselves of this right before introducing other evidence, unless they obtained leave of the court to waive it for the present, and to enter upon it in a future stage of the cause. But it appears from the bill of exceptions •that the plaintiffs did not rest their case immediately on the close of the direct-examination of Bradley, but that they afterwards introduced the conveyance of September 19th, 1857, together with evidence showing its filing, ¿so., so that the defendants appear to have had an opportunity to cross-examine Bradley at the proper time, at the close of his direct - examination; and their neglect to do so, or to obtain the leave of the court to reserve the cross-examination to a future stage of the cause, furnishes a strong inference of their intention to waive any cross- examination of the witness; and this inference is rendered conclusive by the fact that instead of examining Bradley immediately after the plaintiffs rested, and before resorting to other evidence in defense, they first open their defense by introducing the evidence of the issuing and service of the attachments, and the recovery of the judgments under them, and the admission that one of the defendants was sheriff, and the other deputy, at the time of the seizure. They then introduce the deposition of Lot Frost; and all this before they call upon Bradley. It is evident, therefore, they had fully entered upon the evidence in support of their own defense before calling upon him. And when they have at length called him, instead of proceeding at once to examine him upon any matter about which he had testified in chief, they proceed to examine him as to the value of the replevied property — a most material fact in support of the defendants’ case, and in no way connected with his direct-examination; — and it is upon his testimony alone that this most material part of the defense was left to stand, as no other witness appeal’s to have testified to the value.
Some small portion of the subsequent examination of the witness might possibly, if entered upon at the proper time, have been legitimate cross - examination; though even this is stated to have tended to show that the conveyance was executed for the purpose of hindering, delaying, and defrauding creditors — an indispensible fact in support of the defense, and to prove which they seem to have introduced several other witnesses who had not been examined by the plaintiff. For these and other obvious reasons, we can not doubt that defendants had made Bradley their own witness, as much as any other witness produced by them. He was not a witness they were compelled to call, like a subscribing witness to an instrument. It does not appear that defendants had been surprised or induced to call him- by any statements he had previously made different from the facts to which he testified; and there is no, ground- upon which they could be allowed to impeach him in the manner here attempted, even if the statement to which Bullock testifies had been sufficiently material to the issue to be- admissible as an impeachment in any event; which may well be doubted, since he, as agent for taking possession and managing the property, could hardly have authority to bind his principals by any statement of his as to a past transaction — the purpose with which the conveyance had been made to his principals; nor can we see how it was, in any sense, a part of the res gestee, going to explain the character of the possession or transfer. The admission of Bullock’s testimony was therefore clearly erroneous, and the first error is well assigned.
After the defendants had rested, the plaintiffs recalled Henry M. Bradley and offered to prove by him that the levy of the attachments was made by the defendants in Hampton, in Bay county, and no where else.
To this testimony the defendants objected, and the court sustained the objection, and rejected the testimony; to which plaintiffs excepted. The rejection of this evidence is the second error assigned.
The defendants’ counsel contend that this evidence was properly rejected, because, as they insist, no such issue was made by the pleadings; that the plaintiffs having sued out their writ from the Circuit Court for Saginaw county, and in their affidavit and declaration complained only of a detention in that county, and the defendants having taken issue on this, and in their notice justified the detention in that county, by virtue of the writs of attachment, the plaintiffs were precluded from showing the taking to have been in another county.
Had the declaration been only for the taking of the property, instead of the detention, the plaintiffs might have been thus estopped; but the action was only for the wrongful detention; and as the defendants had undertaken to justify this detention by a seizure under the writs of attach ment, and in no other way, whatever would make the seizure tortious, would make the detention equally so. It was therefore competent for the plaintiffs to rebut this defense by showing that the levy of the attachments was made in another county, where the writs of attachment were but waste paper, and could not justify a seizure. If the seizure was wrongfully made by defendants in another county, and the property removed by them into Saginaw county, the writs could afford no justification for the subsequent detention: the seizure and removal being a tort, the consequent detention would be equally so. The property could not thus be brought within the jmisdiction of the writs: the rights acquired by the trespass would be but the rights of a trespasser.
But as the issue was joined in this case before the new rules, the defendants’ counsel insists that to entitle the plaintiffs to rebut the case made by defendants’ notice, they must, under rule 16 (old rules) have filed a replication taking issue upon it, or alleging the seizure in Bay county by way of avoidance. However this might have been where such notice on the part of defendants is required by section 24, chapter 124 of Compiled Laws, the rule can not apply where the statute required no such notice on the part of the defense. The rule must be construed with reference to the statute; to extend it further would be to restore special pleading where the statute had abolished it. This court decided in the case of Snook v. Davis [ante p. 156], that no notice of justification under an execution was necessary on the part of the defendant in replevin, but that such justification was admissible under the general issue without notice. The justification under these writs of attachment must stand upon the same ground; and as no notice of it was required on the part of the defendants, the 16th rule did not apply, and no replication to the notice was necessary.
But it is insisted by defendants that no such county as Bay existed at the time this property was seized upon the attachments (September 21st, 1857); that by the act for the organization of this county, approved February 17th, 1857 (S. L. 1857, p. 438 to 441), the question of its organization was to be and was submitted to a vote of the people: that this court decided in People v. Burns, 5 Mich. 114, that the submission was to be only to the voters within the territory of the proposed county; that there is nothing in the return of the votes made to the secretary’s office showing the number of votes given for or against the proposition within the prescribed limits; and that, as the case of the People v. Burns was decided upon a statement of facts agreed upon in that suit, that admission and that decision can not bind others who were not parties to that suit. This may be true, but if so, the question whether a county or not was a question of fact in the case now before us; and the offer of the plaintiffs to prove “that the levy of the attachments was made by the defendants, in Hampton in Bay county, and nowhere else,” was broad enough to admit this proof, and would cover any evidence necessary to show the existence of the county.
The evidence offered was therefore improperly rejected, and the exception was well taken.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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The Chibe Justice:
The case must be dismissed. By analogy to the statute-limiting* the' time for bringing writs of error to two years, the party who, for that length of time, neglects to cause the case he has procured to be settled, to be returned to thisr Court, must be deemed to have abandoned it. If we look into tbe reasons given here for the delay, we can not regard them as sufficiently excusing it after the first six or eight-months.
But as either party might have moved in the cause after-the case had been settled and filed, we will not give costa, on this motion. | [
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Manning J.:
The circuit judge was right in refusing to charge the jury as requested. If the contract had given defendants from the first of August to the last of November to carry the lumber in, it would have been immaterial at what time the several loads were carried, provided they were all carried before the close of November. Defendants were bound to carry one load in August, two in September, two in October, and one in November. There is but one contract, but it consists of separate and distinct parts, each complete in itself, and having a separate time fixed for its performance, and on each of which a right of action would accrue to plaintiffs if not performed within the time limited. In this respiect the contract is analogous to a bond for the payment of money in installments. But here the analogy ceases, for the reason that the price for carrying lumber is fluctuating, which is not the case with money.
A dollar to day will be a dollar a year hence, and on every day through the year; and an installment of two hundred dollars due to day will be no more a year hence, save the interest that would be recovered by way of damages for its detention. But what we have said of money can not be said of prices for transporting lumber. If they were always the same, there would be no ground for controversy between the parties. It is this fluctuation in the prices of freight that furnished the bone of contention in the present suit. The contract required one load to be carried in August — this was done; two loads in September, one of which was carried, the other not; two loads in October, only one of which was carried; and one load in November.. Defendants carried two loads in November. They failed to carry one load in September, and one in October, and carried an extra load in November. On the first of October plaintiffs had a right of action against defendants for not carrying one load in September, and the same on the first of November for the load not carried in October. The November part of the* contract was performed, and an extra load was carried in that month which was intended to take the place of one of the loads not carried, and the parties not having agreed which’ it is for the law to make the application. We have no hesitation in saying, in a case like the one before us, it should be applied where it will be most beneficial for defendants, provided no injury is done thereby to plaintiffs.
By the contract, defendants were to have four dollars and a half per thousand. It appears from the testimony on the trial the price of freight was five dollars per thousand in October, and between seven dollars and eight dollars per thousand in November. Plaintiffs’ damages, then, for not carrying the load in September, was fifty cents per thousand, and for not carrying the load in October two dollars and a half per thousand — these sums being the difference between the ruling freights and the contract price when the several causes of action accrued. Now the excess in the price of freight over the contract price, when the extra load was carried in November, was equal to the excess in the price of freight which the plaintiffs were entitled to recover of defendants for not carrying the load in October. The two being equal, one should be set off against the other — the difference, if any, being against defendants, as the price of freight was probably higher when the extra load was carried than it was on the first day of November; the testimony showing it was from seven dollars to eight dollars in that month — seven dollars most probably the first of the month, and eight dollars at its close.
It was admitted on the argument plaintiffs’ damages for a breach of the contract were the difference between the contract price and the price of freight on the day their cause of action accrued. It can not therefore be said, in setting off one against the other, any injustice is done the plaintiffs. But if the extra load is substituted for the one not carried in September, defendants would be made to pay two dollars and a .half for every fifty cents damages plaintiffs sustained by reason of defendants’ breach of the contract in September — the difference between the contract price and the ruling price of freight in one case being fifty cents, and in the other two dollars and a half. Suppose defendants had not carried the extra load in November, and plaintiffs had employed some one else to carry it — they would have claimed of defendants, for not carrying the October load, two dollars and a half per thousand, and at the same time have paid to the person who carried it seven dollars per thousand, or two dollars and a half per thousand more than they would have paid defendants had it been carried by them in October. While apparently paying more than the contract price, the carriage of the lumber would, in fact, have cost them but four dollars and a half per thousand — the contract price, after applying the damages they had received of defendants.
Two objections may be made to the result at which we have arrived:
1st. It may be said, under the contract plaintiffs would have had the lumber to be carried in October, in Chicago on the first of November, whereas it was not received until the last of that month, and that, in the mean time, they may have lost the sale of it. It is a sufficient reply to this to say, they have made no claim for any such damage, and they admit the true measure of damages to be the difference between the contract price and the price of freight on the first day of November.
2d. It may also be said, if plaintiffs had known they would have to pay seven dollars per thousand for the extra load carried in November, they would have waited till the following spring before shipping it. To this, the reply is, if they intended to hold defendants for the damages the law gave them, they should have agreed with defendants as to the application on the contract of the extra load before it was carried. This they did not do,- and defendants may have intended it should cancel the October default.
We think the court was right in charging as it did, as well» as in refusing to charge as requested. The judgment of the court below must be affirmed, with costs.
The other Justices concurred. | [
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'Campbell J.:
The plaintiffs in error replevied certain saw logs, which the defendants in error had taken and sold as the property of the Black River Steam Mill Company (who then owned them) to satisfy an alleged lien, under section six of “An Act to provide for the Formation of Companies for Running, Driving, Booming, and Rafting Logs, Timber-, and Lumber, -and for regulating the Floatage thereof,” approved February 9th, 1855.— 1 Comp. L. p. 624, et secg.
The case shows that the defendants, without any contract or request on the part of the Black Fiver Steam Mill Company, took the logs in question, and ran them down Black Fiver to the Mill Company’s boom, where they were taken by the Mill Company’s servants and put inside of the boom, whence they were seized and removed by the defendants, and sold for the expenses of running, and bought in by the de-. fendants. The Mill Company had given a list of log-marks under section eight of the act;, and the sale was regular, if-authorized.
The first objection is to the constitutionality of the act of incorporation. We have no doubt that, so far as it provides/ for the formation of companies, and their power to. make contracts, the act is valid. The view we have taken, of this case renders it entirely unnecessary to determine, whether any other portion of the. law is invalid or not.
It is also objected, that the affidavit annexed to the articles of association is insufficient, in not setting forth the facts in detail. The law provides for a call, and a meeting in pursuance of published notice, at which meeting articles are to be. subscribed, which are subsequently filed. Directors are to be elected at such meeting, two of whom are required to make an affidavit “setting forth that all prior proceedings of said-association had been in strict conformity with all the pro-, visions of this act”; which affidavit is to be endorsed on, or annexed to, the articles. The object of this affidavit is to provide that no articles shall be filed which were not fairly and openly signed at a public meeting;- and the affidavit is., made' not conclusive, but only presumptive evidence. We think the act is satisfied by an affidavit made strictly according to its terms, and that the law does not require any detailed statement of facts. The affidavit before us contains the recital required by the act, and is in due form.
The question next arises whether the defendants had any legal lien upon the logs, which they could enforce by sale, under the act. It is claimed, in their behalf that the deliv-. ery, by tbe clerk of the Steam Mill Company, of a list of log-marks, operated as a contract for the running of all logs so marked. We think this is not so. The first clause of the eighth section provides that the log-driving company shall keep posted up a list of their members, and of all persons whose logs they have contracted to run, with a description of their several marks. The next clause provides that any other person may furnish and have posted a like list, and shall be entitled to thirty days’ notice of the sale of any logs upon which the company may have any lien for services. As the preceding clause had covered all cases of contract, it would be doing violence to the language of the law to hold that the last clause had any reference to contractors, or that filing a list of marks constituted a contract, or a request for any services. Its only object was to entitle the person filing to notice of sale in case, by any casualty, his logs should become so placed as to authorize the log-driving company to assume their management, and thus acquire a lien upon them. Inasmuch as there was no contract, the question next arises whether the case shows such a contingency to have happened as authorized the defendants to assume control over the logs, in order to run them down the river. This was only authorized by the sixth section, in cases where, by reason of logs having been put into the stream without adequate provision for running them without obstruction, some obstruction had actually- been created. In such ease, the log-company was authorized to break the obstruction, and run the logs down, and hold a lien upon them for that service. The case does not show that when the logs were taken in charge, any such accident had occurred, and the act of the defendants was therefore wholly unauthorized, and gave them no claim to compensation under the section referred to. This being so, it is not necessary to inquire into the validity of that section, or into the further questions raised upon the argument.
The court below erred in sustaining the claim of the defendants upon the facts of the case, and the judgment below must be reversed, and a new trial granted.
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Manning J.:
Pierson claims a right to. redeem on paying Baker what he paid for the premises at the sale in the Moore foreclosure suit. This he clearly has no right to do. The fore closure was in chancery, and not at law, under a power of sale in the mortgage, where the statute gives the mortgagor and his grantees a right to redeem at any time within a year after the sale. In chancery the sale is absolute, and the purchaser takes a good title against all parties to the suit. In other words, he takes the several interests of each in the land. It is this he purchases, and not a right in the land equal only to the money he pays; which would be the ease if a subsequent mortgagee, not a party to the foreclosure, could redeem of him on paying that sum. Having acquired the rights of all, he stands in their place, and may use the rights so acquired to protect his interest in the land, and for his benefit, in the same way, and to the same extent, they could be used by such parties had no foreclosure taken place. To this extent the purchaser’s interest in the land extends, and will be protected in equity, and no further. He acquires no other interest than this against a mortgagee who was not a party to the suit. Such mortgagee is not bound by the foreclosure, and Ms rights are neither greater nor less in consequence of it; and he may file Ms bill to foreclose his mortgage as if nothing had been done, except he would have to make the purchaser a party, who, in such case, would be the only necessary party, if complainant should state in his bill the previous foreclosure, and treat the ^purchaser as the assignee of the several interests of the parties to it in the land. —4 Paige, 58. If his object be a strict foreclosure, and not a sale, and there are prior mortgages to his own, the prayer of his bill should be that he may redeem such mortgages; and having done so, that they, together with his own mortgage, may be redeemed of Mm, or defendant be barred of the equity of redemption. Such a bill would be one of redemption and foreclosure — a bill of redemption as to the prior mortgages, and of foreclosure as to the equity of redemption. But, as with us a sale is nearly, if' not always, ordered, it is the practice, instead of asking to redeem prior mortgages, to pray a sale of the mortgaged premises, and that they be first paid out of the. proceeds of the sale; or, if the holders of such mortgages should, for any good reason, object, that the mortgaged premises should be sold subject to their incumbrances.
If the cross-bill of Pierson, instead of being a bill to redeem of Baker as purchaser, was a bill to redeem the Moore mortgage only, it would not be sustained; for a subsequent mortgagee has no right to redeem a prior mortgage, unless it be in a suit to make his own mortgage available as against the mortgagor; and in such a proceeding, the mortgagor, and holders of all subsequent as well as prior incumbrances, should be parties. They should be parties; as each would be interested in, and have a right to be heard as to, the amount due on all prior mortgages; and that the purchaser under the decree might get a good title, and the rights of all parties be settled in one suit.
Baker states, in his bill, the Moore foreclosure, the parties thereto, and their several interests in the mortgaged premises, and his purchase at the sale under the decree. He thereby shows himself to be the owner of the equity of redemption, and of the several mortgages (so far as they relate to the land) of Moore, Turner, Ives, and Turbell. Instead of asking that the Moore and Turner mortgages only should be paid by Pierson, he might have asked that all four of the mortgages should be paid by him. Not having done so, and having filed his bill for a redemption by Pierson on the payment of a less sum, Pierson may redeem on the terms stated in the bill. It is not for the court to say he shall pay more than Baker asks.
The circuit judge asks, To whom shall the money be paid? I answer, to Balder, as there is no one else before the court claiming it. If any question should hereafter arise in regard to it between Baker and any of the parties to the Moore foreclosure, it will be time enough to decide such question when the court has the proper parties before it.
Christiancy J.:
I am unable to agree in the result at which my brethren have arrived in these cases, from two opposite courses of reasoning. Two questions are reserved for our opinion. In the view which I have taken of this case, the second question reserved can not arise, as it will be entirely precluded by the answer to the first.
But the first, though enumerated as one, contains three distinct questions:
1st. IJpon what terms can Pierson be allowed to redeem from Baker?
2d. What sums must he pay? and,
3d. To whom are the sums to be paid?
To give an intelligible answer to these questions it becomes .fiecessary to discuss several other questions, upon Which the answers to the questions asked must depend. But I propose to go into no discussion of this kind beyond what this necessity imposes.
As an essential preliminary, it becomes necessary to determine what was the effect of the prior foreclosure suit— first, as between the parties to that suit, and Baker, who purchased under the decree; and, secondly, as between those parties and Baker on one side, and Pierson, who was not a party, on the other.
Waiving, for the present, any separate consideration of the Turner mortgage, and treating Baker as a purchaser on his own account, as between him and the holders of the subsequent mortgages, who were made parties, the decree and sale in that suit were binding and conclusive, so long as that decree and sale should remain in force; and the liens of these subsequent mortgagees were barred, and the equity *bf redemptipn under them foreclosed as against Baker, and all claiming the land under him, through that purchase.
But as between these subsequent mortgagees themselves, or as between any of them and incumbrancers subsequent to them, the sale had no effect whatever, and left their rights in respect to the land, and to each other, as they stood before such foreclosure and sale.
Did the purchaser, by this sale, acquire the liens of the subsequent mortgagees in the land ? I think not. A mortgage is but a security for a debt; independent of the debt, the lien can have no existence in equity. The debt is the principal, the lien the accessory, which can no more exist without the debt than the shadow without the substance; nor can it be a subject of separate ownership by .one, while the debt is owned by another, unless, perhaps, as a mere naked trust for the benefit of the holder of the debt.
If the purchaser at the foreclosure sale became entitled to the debts secured by these subsequent mortgages, then he may have obtained the liens of these mortgage^, which were collateral to the debts; and he would be entitled to an assignment of any notes or bonds secured by the mort« gages, and to enforce them for his own benefit against the makers. But certainly no one will claim any such effect from the sale. All must admit that the sale left these debts in the hands of the subsequent mortgagees, with the same right to resort to the personal liability of the mortgagor as they had before. As between them and the purchaser, their debts have been separated from the hens; in other words, as against him, while that sale remains in force, they have lost their liens upon the land — but he has not acquired them. He has acquired nothing more by the purchase than if there had been no subsequent liens. Such, then, I think, was the effect of the decree and sale, as between the purchaser and subsequent mortgagees who were parties to that suit. v
What was the effect as between the purchaser and those parties, on one side, and Pierson, the fifth mortgagee, who was not a party, on the other? Precisely nothing. As he is not to be prejudiced by the decree or sale, and his right to redeem, and all his claim to relief by cross-bill, are, and must be, founded upon the invalidity of those proceedings as against him, it must be equally clear that he can claim no benefit from thdse proceedings. He can not bind others by the proceedings in a suit by which he refuses to be bound. He can not claim under,/and repudiate, these proceedings at the same time. To claim an advantage from the sale is to ratify the sale. He can not afiirm it as to those incidents which might operate in his favor, and repudiate it as to those which operate to his prejudice. He must repudiate the whole, or afiirm and submit to the whole. He can not be permitted-to reap any advantage from the effect of that suit upon the parties to it holding the subsequent mortgages, without putting himself on equal terms with those parties, and consenting to be bound by the dec^e and sale.
As to Pierson, the prior mortgage to Moore is still unforeclosed, and that mortgage, and all the junior mortgages prior to his own, remain precisely as if no foreclosure or sale had ever taken place. He can redeem upon the same conditions, and the like terms in all respects, as if no suit had ever been instituted, and in no other way.
A change has taken place, it is true, in the equitable ownership of the Moore mortgage, which might, or might not, have happened without that suit. By the payment of the mortgage money, Baker has become the equitable owner, or equitable assignee, of the mortgage, in the same manner as if he had done the same without suit. But as between him and Pierson, Baker did not obtain the land by the sale, but the mortgage by the payment of the money. But this in no way affects Pierson’s rights; it is immaterial to him whether that mortgage be owned by Moore or by Baker, so long as it remains but a mortgage, and he is permitted to redeem upon the same terms. His rights have not been affected by the suit to his advantage or his prejudice, nor have any of their rights in relation to him; nor, in fact, could their rights, in relation to him, be affected without affecting his, in relation to them. He has a right to demand the redemption of the Moore mortgage, without redeeming the intermediate mortgages, if he could demand that right had no suit been instituted upon it, and not otherwise. But if he would redeem that mortgage, he must redeem it as a mortgage, and not as a sale. As a sale, it is not redeemable; as a mortgage, it is. If he redeem it as a mortgage, he will acquire it as a mortgage, and be subrogated to the rights of a mortgagee, and not as a purchaser of the land under it.
Doubtless, if he choose to buy out the purchaser without the aid of the court, it is perfectly competent for him to do so on any terms he shall be able to make, and to hold the land clear from the liens of all the subsequent mortgagees who were made parties. But, in this event, his own mortgage, if not strictly merged, would become valueless as a lien upon the land. He can not, by means of the fifth and last mortgage, demand the aid of a court of equity to compel the purchaser to sell to him. This would be to give him a preference over prior mortgagees, Avho, as between him and them, have superior equities. Courts of equity do not sit to compel people to make bargains with each other by bill and answer, nor to clothe bargains voluntarily made in such a manner Avith the sanction of a judicial proceeding. The most the court can do for him is to enable him to redeem it as a mortgage unforeclosed, and to place him in the position of a mortgagee.
Subrogation is not a legal right,' but a mere equity, which must, where it has any existence, spring from the relative equities of the parties; and it will be granted, denied, modified, or controlled, in accordance with the real equities of all the parties to be affected by it.
Pierson may have equities sufficient to place him in the condition of a mortgagee under the Moore mortgage, if he redeems it; but he has none which would enable him to stand in the right of Baker, as purchaser. If, therefore, Pierson can redeem the first mortgage, without redeeming the intermediate mortgages, the holders of those mortgages may redeem from him in their turn, and that without paying his mortgage, which is last in date and least in equity. On the hypothesis that Pierson, the fifth mortgagee, would have a right to redeem the first mortgage, without redeeming all the intermediate mortgages, which would seem to be the hypothesis upon which the questions stated in the case are .propounded, it might be important to determine whether Baker is to be considered as holding the Moore mortgage in his individual right, or in trust for the estate of Turner, the second mortgagee; and whether he stands substantially in the position of a second mortgagee purchasing in a prior mortgage to protect his own. If the latter be his position, he will be entitled to add the amount of the first mortgage to the second, and to require the redemption of both. Does it sufficiently appear that such is the position of Baker? The case finds but two facts from which to determine this question (for we can not notice mere evidence^of facts not found). The two facts found are, 1st. That Baker was administrator of Turner, the second mortgagee; 2d. That the mortgaged premises were worth at least enough to pay both the Moore and Turner mortgages. Baker could not, therefore, be allowed to speculate out of the estate by purchasing the premises in his individual right, under the sale on the Moore mortgage, and then to set up that sale to cut off the Turner mortgage, which he held as administrator, even though we should treat it in any respect as a sale of the land. Had he attempted this with the funds of the estate, equity would decree him a trustee of the estate for the whole; if he purchased with his individual funds, he would still be treated as a trustee, for at least the amount of the Turner mortgage. It is not, therefore, material to the present case whether he used in the purchase the funds of the estate, or his own. The fact that the deed was taken in his individual name would make him none the less a trustee, and can not, of itself, warrant an inference of any intention to use the purchase to the prejudice of the estate. The fair inference is that it was taken in his individual name to enable him to dispose of it, and convert it for the benefit of the estate, without the expense attending a probate sale under a license.— See Little v. Lesia, 5 Mich. 119. He would doubtless be at all times liable to account to the probate court in respect to the land or its proceeds. .
The necessary result is, I think, that the administrator stands, in all respects, substantially in the position of a second mortgagee who has purchased in a prior mortgage to protect his own; and no subsequent incumbrancer could redeem the prior mortgage without redeeming the second, of which, under such circumstanees, it forms substantially a part. But whether he can file his bill as administrator, is a question upon which I give no opinion, as none has been asked.
But if it be admitted that Baker purchased on his own account, is Pierson entitled to redeem the Moore mortgage without redeeming all the mortgages subsequent to that, and prior to his own?
If I am correct in the conclusions at which I have already anived, Pierson, with respect to all those prior mortgages, stands in the same position as if no suit had been instituted for the foreclosure of any of them. The question, therefore, is simply this: Can a fifth mortgagee sustain a bill in equity to redeem the first mortgage without redeeming the intermediate mortgages, which still remain a lien upon the land, paramount to his own? The only ground, I think, upon which a court of equity can be .asked for a decree enabling a subsequent mortgagee to redeem a prior mortgage, is to enable such subsequent mortgagee to make the lien of his mortgage available as a means of satisfying his debt from the land. To this end, the court will enable him, through the equity of his own mortgage, to extinguish all equities of redemption in the land, that a good title may be conveyed. But, for this purpose, he must generally, if not universally, pray for a foreclosure of his own mortgage in the same suit. If he can sustain a bill to redeem the first, without the others, he may equally sustain a separate bill for the redemption of each; and, until all were foreclosed, his remedy would be incomplete.
If he redeem the first, leaving the second, third, and fourth outstanding, the second may immediately redeem it from him, and leave him where he stood before; the third may redeem both; the fourth may redeem the three; and the fifth may redeem them all. His redemption of the first, therefore, settles nothing, and leaves the whole matter still at large. If he can thus redeem the first without the others, the fourth may equally redeem the first or second without the third; or the third may redeem the first without the second, and with the same fruitless result; and there would be no end to litigation. Courts of equity seek to adjust in a single suit, as far as practicable, the equities of all parties having liens upon the land, to prevent a multiplicity of suits, to check fruitless litigation, and the multiplication of costs. Can such last mortgagee claim a right to obtain the first mortgage — to hold it as an investment? The holder is as much entitled to keep it, as he is to demand it, for this purpose. Will he claim that, with this in his hands, he can foreclose and sell, and thus be able to purchase the property at a speculation sufficient to cover his own mortgage? The equity which would be required to sustain a bill to obtain the mortgage for this purpose is not visible; and if there be any such speculation to be made, the holder is as well entitled to it as he is. But if he had the mortgage, he could not tack it to his own, so as to give the latter a preference over the intermediate mortgages; and if he should foreclose and sell, to cut off these intermediate incumbrances, it would equally cut off his own.
For the reasons above stated, I think the questions propounded by the court below should be answered as follows:
1st. That Pierson can sustain a bill to redeem the Moore mortgage only on the terms of paying all the mortgages subsequent to that and prior to his own, without any deduction on account of any sum received upon any of them from the proceeds of the sale.
2d. That the sums to be paid by Pierson are the sums, due (irrespective of what may have been received on any of them from the sale) on the four several mortgages prior to his own, with interest to the time of payment; but without any of the costs in the first foreclosure suit, to which he was not a party; and,
3d. That out of the aggregate amount of the sums thus to be paid, Baker should receive (subject to account to the Turner estate, as stated below) the amount of the Turner mortgage and interest, with the costs of the first foreclosure suit, and interest on those costs from the time they were paid. That the balance of the aggregate amount should be paid to the respective owners of the mortgages executed to Turner, Ives, and Turbell, pro rata, according to the sums due on the same respectively; deducting, however, from any of them, and paying to Baker, such portion of any of the last named mortgages as may have been received on them respectively from the proceeds of the sale made to Baker. This will return to Baker precisely the sum which he has paid, with interest, and make the holders of the Turner, Ives, and Turbell mortgages, represented in the original suit, pay the costs of that suit, which, as between them and Baker, the purchaser, they are equitably bound to pay. Baker, as administrator, will receive the sum equitably due on the Turner mortgage; and if he used the funds of the estate in the purchase under the Moore mortgage, he will be accountable to the estate in the probate court for the amount so used and interest.
This is the result at which I have anived, after a most careful investigation of the very peculiar questions involved in the case; and whatever error maybe found in the course of reasoning adopted, this result precisely adjusts all the equities of all the parties. This, to my own mind, is a 'strong confirmation of the correctness of the process by which the result is reached. In a matter of general equity ■like this, I can not but suspect some fallacy in any process ■of reasoning, however logically accordant with technical rules, which leads to a result inconsistent with the just rights ■and real equities of the parties.
If it be said that this result will deprive Baker of the .profits of his purchase, I reply, every purchaser at a foreclosure sale is bound, at his own risk, to ascertain whether •the proper persons have been made parties to the suit (especially when the registry of deeds discloses the facts), •as much as a purchaser at private sale is bound to notice any defect in the chain of a record title. The court of chancery does not undertake, on a foreclosure sale, to give a better title than a mortgagor had, nor to cut oif the •rights of subsequent incumbrancers who were not parties. By neglecting to notice a defect of title, a purchaser at private sale often loses both the land and his money. But, in the result at which I have arrived, the purchaser gets what, both at law and in equity, is deemed a full compen•sation, — his money and his interest.
The party seeking to redeem can complain of no hard■ship in being compelled to pay all the mortgages prior to his own, as this is exactly in accordance with the view he must have taken of his own rights, and the equities of all the parties, when he invested his money, or took his mort,gage, with full knowledge of the prior mortgages. Nor can he complain of the failure of any of those prior mortgagees to redeem the first mortgage on the foreclosure suit; ■since, if they had done so, each of them would have acquired the mortgage redeemed by him, and Pierson "would «till have had the same amount to pay to redeem his own.
But, it may be said, the rule is well settled that the fore-, closure and sale are binding and conclusive upon all the subsequent mortgagees who were made parties. This is true as between any of the parties to that suit on one side, and the purchaser, and all claiming under him through that sale, on the other, but not as to strangers to the suit. Pierson’s right to redeem at all depends upon this distinction; for, if that suit is conclusive as between the parties to it, and the rest of the world, then Pierson is also bound, and his right of redemption cut off. And even as between the parties and the purchaser, the foreclosure and sale are only binding and conclusive while they remain in force, not after they are superseded, set aside, or vacated. The redemption by Pierson of the mortgage foreclosed, vacates and nullifies the foreclosure and sale, and the rights of the subsequent mort-. gagees in respect to the land are no longer affected.
The mortgage upon which the sale was had being re-i deemed, the purchaser steps out, and his rights, and his relations to all the parties cease. The question is no longer be-, tween him and any of the parties to that suit, but between them and the person who has redeemed; who was no party to the suit, nor affected by it; who does not claim under that sale, but in opposition to it; whose only claim to relief consists in repudiating the sale, and treating it as a nullity, and whose right so to treat it grows out of a mortgage of later date than those he seeks to cut off by it, which, in equity and in date, precede his own.
The views which I have been compelled to take of these cases, if correct, may lead to the conclusion that all the necessary parties are not before the court, to enable it to, make a proper decree. But as our opinion has not been asked upon this question, I have carefully avoided express-, ing any.
Martin Ch. J.:
Baker, as administrator of the estate of Turner, filed his. bill against Pierson, to compel him to pay the amount of the Moore 'mortgage, with interest, and the costs of foreclosure and sale, and also the amount of the Turner mortgage, with interest and costs, or be strictly foreclosed ; or, if Pierson should be allowed to redeem on payment of the Moore mortgage, with interest and costs, only, that then the Turner mortgage should be declared still subsisting and a lien upon the land, &c. The defendant, in his answer, denies that Baker bought or holds the land as administrator, or in trust, and claims to redeem by paying the amount which was bid by Baker at the sale under Moore’s foreclosure, with interest, and files his cross-bill against Baker in his individual character, setting up the same facts, substantially, as in his answer, and insisting upon the same rights of redemption.
This, then, is substantially a suit for a strict foreclosure; or, in other words, that Pierson be debarred from setting up his claim under his mortgage, unless he redeem from the two mortgages within a limited time; and the questions litigated are, what amount shall Pierson be required to pay, and to whom. Upon the first question, I have no doubt but that if the property had been purchased at the sale by a stranger to any of the mortgages, Pierson should only be required to pay the amount bid, with interest; while if Moore, or any one claiming under him, had purchased it in, he would have to pay the amount bid, if more than the mortgage, with interest; and, if less, then the amount of the mortgage, with interest and costs. But Baker does not appear to have purchased as a stranger. From all the facts in the case, I am satisfied that he acted in behalf of the Turner estate in making the purchase; while, if he had not, equity would hold him to have thus acted; for it was his duty to protect the estate, and he would not be permitted to purchase at the sale for the purposes of private speculation, and at the expense of the interests he was bound to protect from sacrifice or loss. In either case, he must be regarded as acting for the estate, and the questions reserved are to he decided as arising between the estate and Pierson; and hence we are asked to determine whether Pierson shall pay one or both mortgages, or only the bid, and whether to Baker in his individual character, or to him as administrator. Whether he shall pay the amount of the first mortgage, with interest and costs, or the bid, is immaterial, as the bid was more than sufficient to satisfy the mortgage and costs, and the purchaser has always the right to have repaid the amount he paid, before he can be required to surrender the land. As Baker purchased the land, and holds the title, for the Turner estate, I have no doubt but that he may insist upon the payment of the amount of the Turner mortgage before he can be required to part with that title. It is true that, in a certain sense (and, had he not purchased, in every sense) the lien of that mortgage is extinguished; but so would be the lien of the first mortgage, and to the same extent, if the first mortgagor had purchased in the land for less than the amount of his decree. His lien would be merged in his title. Yet, in such case, if a subsequent incumbrancer sought to redeem, he would be required to pay the full amount of the first mortgage, and interest and costs, irrespective of the amount bid by the mortgagee at the sale, unless the balance had been otherwise satisfied. And why is this? Because equity regards the debt as the principal, and the land as the pledge; and, therefore, if by forfeiture and foreclosure the title to the pledge be transferred to the pledgee, no matter for what sum bid, the pledger must still satisfy the principal, before he can ask a court of equity to compel its restoration. He that seeks equity must do equity to him from whom he requires it; and it is equity that the mortgagor, or those claiming under him, shall not deprive the mortgagee of his pledge or security without payment of all sums of money due him for which the land was pledged. — See Qoote on Mort. 391. As between the mortgagor and mortgagee, I apprehend there can be no doubt upon this question.
Now what was Turner’s interest under his mortgage? Although in equity (and perhaps now at law) the “ancient estate in the land” remains in the mortgagor until after foreclosure, yet, to some extent, the common law yet characterizes it so that it is an estate upon condition as well — in fact, an anomalous estate, partaking, in many particulars, of the nature of one pledged, and in as many m; re, of one absolutely conveyed, subject to be destroyed by the performance of the conditions of its existence. Until after the foreclosure by Moore of his mortgage, the estate, whatever it was, may be conceded to have remained in the mortgagor; yet he had so far pledged and conveyed it that the equity of redemption alone remained in him. This only could be transferred by him, either by sale or mortgage. However his estate may be denominated, this, and the right to possession until after foreclosure, was most certainly all which was left to him. It follows that Turner, as the second mortgagee, had only a pledge or mortgage of that equity so long as Moore’s mortgage ■ remained a subsisting lien; but which might be transmuted into a mortgage of the land upon the satisfaction of the first. His right of redemption, then, was derivative, growing out of that of the mortgagor, and is to be determined by it. If the mortgagor could only redeem by paying the full amount of the Moore mortgage and costs, it follows that Turner could have no other or greater rights. Precisely to the same extent, and in strict analogy to this right of Moore, is that of Baker to insist that his (the Turner) debt should be paid by Pierson before he can be required to part with his title to the premises. He has acquired the pledge, and his principal remains unsatisfied; and there is no inequity in this. Had Turner taken an assignment of the Moore mortgage, no question could arise as to his or his administrator’s right to insist upon the payment of both. By bidding in the land to protect this mortgage, Baker put himself in a situation where he may well insist that he is entitled to the benefit of the rule which Moore could have insisted upon had he purchased,, viz. that before he can be called upon to part with his title, he must be satisfied of all his mortgage liens prior to that of the defendant.
The amount of the bid in this case was some ten dollars over the amount of the Moore mortgage, interest, and costs; and this excess was applied upon the Turner mortgage. .Pierson should, therefore, pay to Baker the amount of both mortgages, with interest, and the costs of the former, and of this suit, with interest upon the costs paid upon the former suit; or, in other words, he should pay the amount of Baker’s bid, and the amount of the Turner mortgage, deducting the amount applied upon if, with interest, and costs of this suit; and the payment should be made to Baker as administrator, and not to him in his own right. In this result, I concur with my brother Manning; and this, I think, disposes of all the questions submitted for our opinion — certainly of all which I think the circuit judge had a right to reserve under the issues.
But my brethren have gone further, and discussed the rights of Pierson to redeem; and I can not suffer that subject to pass in silence, lest I may be understood as concurring in the views of either of them.
I do not regard it as connected in any way with this case, and I shall therefore discuss it precisely as though it was a question between Pierson and Baker individually, throwing out of question Baker’s rights under the Turner mortgage. The effect of a foreclosure and sale by the first mortgagee is to vest in the purchaser an absolute title, divested of the equity of redemption of the mortgagor, and of all subsequent incumbrancers who were made parties to the suit. The purchaser acquires this title, 'and no more. He does not acquire the liens of the incumbrancers who were parties, for he does not acquire their debts, and a lien separated from the debt is extinguished; nor can he be regarded as holding their liens as a trustee, for that Would render his purchase valueless, as the beneficiaries might compel him, if he were their trustee, to enforce such liens for their benefit. When there is a trust, there is an interest and a right in the cestui que trust; and-to hold that the liens are held in trust, and yet that no interest or right exists in the cestui que trust, is a solecism.
The truth is, the title stands to the purchaser as though the subsequent incumbrances of the parties to the suit had never existed. But as to a subsequent incumbrancer not a party to the suit, such is not the fact. Not being a party to the foreclosure proceedings, his lien is not cut off. The mortgage was foreclosed as to all parties to the suit, but as to no one else. Such incumbrancer not having been made a party, had no opportunity given him to redeem, nor was he required to until decreed against. Now the decree against the mortgagor, and the subsequent incumbrancers, is, that they redeem, or the property be Sold. They may redeem; and the mode in which they may do this is precisely as though a strict foreclosure were decreed; and they may secure this by the decree, if they desire, and make application to the c'ourt to have their rights and the order of redemption fixed. If they omit to redeem, their lien upon the land is extinguished, and they can only protect themselves at the sale, by taking care that the land is sold for enough to satisfy their debts. They may then bid to protect themselves, or any one to protect himself. If enough is bid to satisfy all the mortgage debts, the money will be thus appropriated; if to satisfy only a portion, the money will be applied, so far as it goes, to their satisfaction in the order of their priority. If any remain unsatisfied-, either wholly or in part, the lien being extinguished, the remedy of the mortgagee is personal against the mortgagor, and can never re-attach to the land. Now, if Pierson had been made a party, and had redeemed before sale, the opportunity having been given to the prior mortgagees, and they making default, he would have been compelled to pay only the amount of the complainant’s demand, with costs; and he would have taken the land, divested of their liens: if the property went to sale, he might purchase for such sum as he could, and he would hold the title equally free from their incumbrances. Wherein is Pierson’s right or obliga-' tion different, by reason of the omission by Moore to make him a party to the foreclosure suit? In my judgment, he stands in this suit precisely where he would have stood in the former had he been made a party, and the intermediate mortgagees had refused to redeem, or to bid at the sale. After the foreclosure, his mortgage stood as the only lien upon the land, the others having been fully extinguished. The mortgagor and the intermediate mortgagees had had their day in court, and had neglected and refused to redeem or protect their liens; and the decree and sale was, as to them, final and perpetual. But Pierson did not have his day in court, and the foreclosure of the others’ rights could not, therefore, affect his; and he can redeem the land from the sale, if he desires and the purchaser will not pay his demand. Hence the necessity for this suit. Moore had foreclosed the other incumbrancers, and extinguished their liens. The purchaser now pursues Pierson for the same purpose, and the same consequences will result to him unless he redeems from the purchaser. This he offers to do, and this is the whole matter. From what, then, is he to redeem, and how? Most assuredly from the sale, and not from the Moore mortgage, for that and all included in the foreclosure proceedings were extinguished. The purchaser no more acquired the first mortgage than the others, for he did not acquire the demand which it secured; and, as I have already shown, the security can not be acquired independently of the principal. Baker, by the purchase, became the owner of the land, and nothing more; the mortgage of Moore was satisfied, and the debt it secured discharged; and Pierson, except for the Turner mortgage, could redeem by paying to Baker the amount of his bid, with interest; for Baker would have no other or further claim. This follows from a consideration of the nature and effect of a foreclosure and sale, and a purchase under them, in every case where the first mortgagee is not the purchaser.
In Broome v. Beers, 6 Conn. 198, it was held, in a bill of foreclosure, that it was not necessary to make other mortgagees, whose equity of redemption had been foreclosed, parties to the suit. And why was this? Most clearly, because this equity was, by the foreclosure, extinguished. If by any possibility, or for any purpose, it could be revived — if any vitality for any purpose remained in their foreclosed liens — then such incumbrancers should have been made parties. But they were unnecessary parties, because they had had their day in court respecting this identical equity of redemption of the mortgagor, to which all the liens attached, and respecting the lands upon which they all existed, and their rights had been adjudicated, and by their suffering foreclosure, for ever extinguished. But the liens of others, not parties to the former foreclosure, were not thereby discharged; and in these the foreclosed incumbrancers had no longer any interest, nor could they assert any right or equity over, or respecting them. So it is held that, with respect to incumbrances subsequent to the complainant’s mortgage, but prior to the filing of the bill, the decree will bind all those who are parties to the suit, but not the rest; and, consequently, a second or subsequent mortgagee, or other subsequent incumbrancers, who are not parties to the bill, may, on payment of the first mortgage debt and costs, redeem the first mortgage, after the decree obtained. — See Coote on Mort. 522. The fact that no notice of lis pendens was filed in the case of Moore’s foreclosure, brings Pierson, under our statute, within this rule; and I confess that I can deduce from it only this principle: That, by the foreclosure of a prior mortgage, the equities of all the defendants to the bill are extinguished, and not only as against the first mortgagee, but as against all subsequent mortgagees not made parties. It matters not that the defendants, or any of them, are intermediate incumbrancers; if their equity of redemption has been foreclosed, the rule will be the same; and the mortgagee not made a party may redeem upon precisely the same terms as though no such intermediate mortgages had ever existed. But if a mortgagee who is made party to the bill redeems the first mortgage, then the incumbrancer not made a party must redeem from him as well, as will appear from a consideration of the rights of the subsequent incumbrancers to redeem, where they are made parties. Now what are they? In Benedict v. Gilman & Couch, 4 Paige, 58, the right of the last mortgagee to redeem by paying the first mortgage, when the intermediate incumbrancer neglects or refuses to redeem, is clearly recognized. “If,” says the Chancellor, “Gilman does not elect to redeem as the senior incumbrancer, the other defendant may redeem by paying what is due to the complainant, in the same manner that the senior incumbrancer might have done? And what would have been the result had Gilman refused, and Couch, the last incumbrancer, had redeemed from the complainant ? Most assuredly Gilman’s lien would have been extinguished, and Couch would have acquired the land free of it. So, in Seaton’s Forms of Decrees (pp. 157, 161), it is said, “When parties are entitled to successive rights of redemption, the usual form of decree is as follows: Suppose A to be the first mortgagee, and B, C, and D to have successive rights of redemption, the right of redeeming A is given in the first place to B, C, and D in succession, each in default of the other. Suppose B to redeem, the right of redeeming A and B is given in the next place to C and D in succession, each in default of the other. Suppose C to redeem in either of the above cases, the right of redeeming A and C in the former, and A, B, and C in the latter, is lastly-given to D. In default of redeeming, each party is foreclosed, if defendant.” I am aware that these are familiar rules; and yet there seems a necessity for recurring to them in the discussion of this subject. Chancellor Kent, in Haines v. Beach, 3 Johns. Ch. 459, says: “The necessity for making the subsequent incumbrancers parties, or holding their rights unimpaired, is indispensable to justice in cases of decrees for sales; for otherwise the mortgagor would take the surplus money, or the cash value of the equity of redemption, and defeat entirely the liens of the subsequent creditors. But their rights can not be destroyed in this way, and the purchaser will take only a title as against the parties to the suit, and he can not set it up against the subsisting equity of those incumbrancers who are not parties.”
Now, what follows from these rules and principles? Most clearly it follows that in every case the equities of the incumbrancers who were parties are cut off from the land, and, more, are extinguished. The purchaser, in the case of a sale, takes the land freed of all equities of the parties to the proceedings, and if there be no other incumbrancers, he takes it by an absolute title. If there be other incumbrancers not parties to the decree, he has thenceforth to deal with them alone, and, as their rights are reciprocal, they have to deal with him alone. If it be true that, as between such purchaser and the incumbrancers who were made parties, the debts of the latter have been separated from the liens, and such liens have been extinguished, how is it possible that, by attempting to perfect his title by foreclosing a still subsequent mortgagee, he revives and reattaches to the land the foreclosed liens? or how can such subsequent mortgagee’s rights be less or different from what they would have been had he been made a party to the former suit, and all his prior incumbrancers had made default to redeem, or protect themselves at the sale? Yet such must be the effect, if the subsequent mortgagee is required to redeem all the mortgages prior to his own, under a bill like that in the present case. As to the purchaser, his title confers upon him the right to foreclose the subsequent mortgagee. In such case, the value of his title is determined by the sum he paid for it, and he can only ask the party he seeks to foreclose to repay to him such amount; and the converse of the rule must be equally true, that such party can redeem from him by paying that sum. Their rights and liabilities are co - extensive, and precisely the same under a bill to foreclose or one to redeem. What is the effect of the doctrine that the purchaser foreclosing a subsequent unforeclosed mortgagee, or that the holder of such mortgage asking to redeem, must make all those whose liens have been extinguished, parties? It is, virtually, to annul the foreclosure under which the title was obtained, to revive the destroyed liens, and to open the whole decree. This would render a decree of foreclosure, in case a subsequent mortgage should exist, a senseless thing — a judgment of court meaning nothing; and the numberless decisions of judges and chancellors, that such decree bound all the parties to it, and that a purchaser of the premises acquired a title as against the parties to the suit, utter nonsense. The truth is, neither a bill to foreclose such subsequent mortgagee, nor a bill by the mortgagee to redeem, vacates, or annuls, or in any degree affects, the prior foreclosure and sale; nor does it revive the rights of any party to it. The proceeding, if a foreclosure is by a stranger to the former suit, unless the purchase was made by a party; in either event by a purchaser ; and if for redemption, is against a purchaser,- whether stranger or party. It is based, in either case, upon a title acquired after, although through, the decree; and it is that title only which is to be affected. In only one case can the holder of the title ask more than the amount he paid, with interest; and that is when the first mortgagee bids in the property for a less sum than his debt, or when a subse quent incumbrancer bids it in for the protection of his lien, as in the present case; and then, as I have already shown, a new equity supervenes.
Pierson, in the case before us, stands as a stranger to the former foreclosure and sale. These proceedings are not invalid.as to him, for upon their validity depends all the purchaser’s rights against him, and his rights to redeem from such purchaser; but as he was neither a party nor privy to them, he claims, beyond this, no rights dependent upon them. He neither claims any benefit from them, nor does he repudiate them. His claim is founded upon his mortgage alone. It is true that his right is of an equity of redemption, which, before the foreclosure and sale, was subordinate to those of his prior incumbrancers; but those have been extinguished, and it is no concern of his, nor does it affect his rights, whether they were extinguished by payment or by foreclosure. It is enough for him that they no longer exist. If he reaps any advantage from this, it is one arising from the voluntary act or omission of his prior mortgagees; and they can not complain if a benefit incidently results to him, nor require him to surrender it up before he can assert his independent rights. If his equity is subordinate to all prior equities, and. must always remain so, if he can' only enforce his by discharging them, why may not the mortgagor himself, if he has voluntarily paid them, demand re-payment before Pierson can redeem? The truth is, his lien is subordinate so long as prior liens exist, but no longer. The moment they are removed, whether by a decree of court, or the voluntary payment of the debts they secure, his lien becomes the primary incumbrance; and this is what the courts mean when they say that in case of a foreclosure and sale the purchaser takes a title as against all the parties to the suit, but not as against the subsisting equity of those incumbrancers who are not made parties. The prior mortgagees acquired no rights by the subsequent mortgage, nor were their rights either increased or diminished by it. They acquired theirs through the mortgagor, and the foreclosure of his equity foreclosed theirs, for they had a day in court with him, and refused to protect them; such refusal was an abandonment of them, and they can never again assert them. It would not only be inequitable, but it would destroy the force and efficacy of a foreclosure, to permit them, subsequently, to set them up against a party whose equity was not foreclosed, or to claim that such party must first revive and then satisfy and extinguish liens which they had already suffered to be extinguished, before he can make his own available to the satisfaction of his debt. I must confess, that, to my mind, the very proposition involves an absurdity.
Nor are there any equities between him and these prior mortgagees to be adjusted. Pierson holds the only living equity, and there can be no adjustment of dead and living-equities. Those of his prior incumbrancers were destroyed by the decree and sale, and if we hold that the living equity of Pierson is valueless, unless the dead equities of such incumbrancers be resuscitated and interposed between his mortgage and the title, we must hold that the foreclosure of Moore’s mortgage was a useless ceremony of the law, and that the title of the purchaser is still incumbered with all the equities which existed against that of the mortgagor before the sale.
I have already determined how, in my judgment, Pier-son may redeem in this case; and upon ¡such redemption — as would be the case had the property been purchased by a stranger to the mortgages — I think he will hold all the title of the purchaser, divested of all equities, and that the prior mortgagees ought not to be, and could not be, made parties to any proceedings between him and Baker, as they have no rights to protect, nor equities to adjust.
Campbell J. did not sit, having been of counsel in the case.
Ordered certified, as the opinion of this court, that Pier-son should be permitted to redeem on paying the amount of the Moore and Turner mortgages, with interest, and the costs of the former suit, and of these suits.
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Manning J.:
I agree with the learned judge who decided the cases in the court below, that the deed from Aaron Thomas to his son Alanson, which complainants ask to have re-formed, was made to defraud the creditors of Aaron. The evidence is conclusive on that point; and admitting complainants are purchasers in good faith, for a valuable consideration,' and ’without notice of the fraud, or of the mistake in the deed from Aaron to Alanson, their grantor,- they still have failed to make a case entitling them to relief in a court of equity. On the ground of purchasers for a valuable consideration, without notice, they asked and obtained relief in the court below, where it seems to have been taken for granted that that, of itself, is an equity on which a bill may be sustained for relief. It can be used as a defense only. It is a shield to protect a party, but can not be made a basis of attack. It was so held in Beekman v. Frost, 18 Johns. 544, on appeal from Chancellor Kent — the Court of Errors reversing the decree of the Chancellor. In that case, as in the cases before us, the question was not raised in the court below. Spencer Ch. J. in delivering the opinion of the court, ®ays^ “In Patterson v. Slaughter, Amb. 293, Lord Hardwicke laid clown the rule to be, that the title of a purchaser for a valuable consideration is not ground for relief, though it is a good defense.” The Chief Justice then says: “No book of precedents,, no treatise on equity, furnishes a case of a bill filed on the ground that there has been purchase without notice, and for valuable consideration.” The principle i also recognized in Jackson v. Cadwell, 1 Cow. 622. Hare & Wallace, in their notes on Beading Cases in Equity, vol. 2, pt. 1, p. 55, say: “There can be no doubt that a defense resting on the ground of a purchase for valuable consideration, as technically made by plea, which does not allege the existence of a good title in the vendor, and which, as remarked by Lord Eldon, implies a want of title in the vendee, can not, in itself, furnish a ground for a suit or action, either in a court of equity or of law. Such a defense shows matter sufficient to exonerate the conscience of the purchaser and entitle him to retain what he has purchased, but does not, necessarily or usually, show enough to bind the conscience of others, and become the foundation of equitable proceedings against them.”
The reason of the rule has been said to be, that the party to be affected by it is entitled to the oath of the party seeking to avail himself of it; I do not think this the true reason; for a defendant may obtain the oath of complainant on a bill e£ discovery. The rule rests on a more solid foundation; which is, that the effect the law gives to a purchase without notice, is not a perfect right in itself, and, therefore, will not sustain an action at law or bill in equity, but may, in certain circumstances, be used by a defendant to stay the interposition of the court, on the ground that he is equally entitled with the plain tiff to its protection. If the right was in itself a perfect right — one that'would sustain an action at law or bill in equity — no man’s property would be safe. B having a horse belonging to A in his possession, sells it to C, who purchases in good faith, believing it to be the property of B, and pays him what the horse is worth. A sues C in trover for the horse. C is a bona fide purchaser for a valuable consideration, without notice, and has all the rights of such a purchaser ; and yet it is no defense. But if A, instead of having •a legal right to the horse, had an equitable right only that Was good against B’s legal right, and to enforce it was under the necessity of going into a court of equity, the court would give him relief against B, and also against C, if he purchased of B with a knowledge of A’s equitable title; but it would not give him relief against C if he had purchased of B without notice of A’s equity. Why would the court give relief against C in the one case and not in the other ? Because, in the first case, C would have the legal title without any equity — he would have B’s title, and nothing more — and A’s equity would prevail against his legal title. In the other case, C would have the equity of a bona fide purchaser in conjunction with the legal title, and for that reason the court would refuse to divest him of his legal title in favor of A’s equity. Or, in other words, it would leave’ complainant his legal remedy. This is what I understand by the equity of a bona fide purchaser without notice.
When defendant has the legal title, and plaintiff is seeking to divest him of it by reason of some equity that was a good ground for relief against his grantor, he may 'turn on his adversary, and say: “I purchased the estate you claim of me in good faith; I paid a valuable consideration for it, and I had no notice of your claim when I parted with my money.”
In the cases before us, complainants admit Alanson Thomas, their grantor, had no legal title when he conveyed to them, and they file their several bills to re-form the deed from Aaron to Alanson, so as to vest the legal title in him, and, through him, in themselves respectively, to the part of the premises severally purchased by them of Alanson. They stand in the precise position mentioned by Hare & Wallace in the note to which I have referred, of “ purchasers for valuable consideration as technically made by plea, which does not allege the existence of a good title in the vendor" (Alanson Thomas, their grantor), “and which, as remarked by Lord Eldon, implies a want of title in the vendee.” In the present cases, the want of title in complainants is admitted, not implied; and they come into a court of equity to get a title.
Asno relief can be given solely on the. ground that complainants purchased in good faith without notice, is there any other ground on which the relief asked may be granted? As purchasers from Alanson Thomas, they have all of his right at law and in equity, and nothing more. But this comt would not correct the mistake in favor of Alanson, on a bill filed by him, for he was a party to the intended fraud of the father. Neither can it in favor of complainants,, his grantees, without conceding to them greater rights than Alanson had, and making itself a party to .the intended fraud. It matters not there are no creditors, even if such be the case, now to be injured. It is the corrupt intention, the illegal object the Thomases had in view — -the wrong in' tended, and not the wrong done — that stays the hands of the court. If the court would not have corrected the mistake-the instant it occurred, it will not now; for, by correcting it now, it would give effect to the deed from its execution. To give effect to it on any day subsequent to the time the parties intended it should take effect, would not be enforcing the original contract, but making a new contract for the parties..
A court of equity will not decree a specific performance of an illegal contract. On what principle, then, can it correct a mistake in such a contract?
There is another ground, it seems to me, aside from the intended fraud, why the relief asked • should not be. granted. It is the want of a consideration for the deed from Aaron to Alanson. The deed was intended to be the execution of a voluntary contract. And as a court of equity will not decree the performance of such a contract (Colman v. Sarrell, 1 Ves. 50; Antrobus v. Smith, 12 Ves. 39 ; Edwards v. Jones, 1 Myl. & Cr. 226; Ellison v. Ellison, 6 Ves, 656; 2 Spence Eq. Juris. 285, notes b ande), I can not well conceive of a case, where there is no intervening equity, in which it would correct a mistake in a defective execution of it. The most complainants can claim, even in a court, of equity, under their deeds from Alanson, is, that they are in equity the assignees of such contract. And, a¡Si assignees, they would take it subject to all' its vices, and to all equities existing between the parties to it.
Complainants are not bona fide purchasers without no-, tice. In law, they could not be said to be ignorant of the mistake when they purchased. The deed from Aaron to Alanson was recorded, and they are chargeable with notice of every thing that appears on the face of the record. If they purchased without examining the record, or seeing whether it described the land they were about to purchase, it is then- misfortune, and, unhappily for them, one that this court can not correct. If it be said the registry is notice only to subsequent purchasers from the same grantor, there is still another principle of law which charges them with notice. It is, that a vendee is deemed to have notice of what appears on the face of a conveyance through which he claims title, whether it be in a conveyance to his grantor, or other prior conveyance in the chain of his title.
Aaron Thomas, in his lifetime, frequently said he had conveyed the farm to his son, and made the same statement under- oath in a court of justice. Such declarations were evidence to prove the mistake in the deed from,him to Alanson, but not to disprove the fraud with which the deed was tainted. They were consistent with the fraud, and were doubtless made with intent to conceal it. Nor can it be said they liken complainant’s case to a purchase of a third person, in the presence of the real owner, under an impression such person was the owner, and the cotemporaneous declaration of the owner to the same effect. For it does not appear the declarations of Aaron Thomas, referred to, were ever made to, or in the presence of, complainants, or either of them. Aaron Thomas was not present, nor could such declarations have been made by him, when complainants purchased. He died in 1847; and it was on the 14th of February, 1848, Alanson deeded to Quirk, and on the 9th of September, 1850, he deeded to Greusel. I am therefore unable to see any equity in favor of complainants growing out of the declarations of Aaron Thomas. If there be any, in what does it consist, and where is it to be found? Certainly not in what Aaron Thomas said or did in the presence of complainants, but in what they may have understood from others he had said and done. This is public rumor — nothing more; and if public rumor can create an equity on one side, I know no reason why it may not on the other. Complainants forget, while calling in public rumor to assist them, that her testimony, like a two - edged sword, cuts both ways — that while she testifies in favor of a conveyance, she at the same time states it was made to defraud creditors. On what principle can one part of her story be received, and the other rejected? The truth is, there is no equity growing out of the declarations of Aaron Thomas, one way or the other, and I can not see that they have any thing to do with the case, except for the purpose I have already stated.
The Statute of Frauds, it is said, declares the deed void as against creditors only, leaving it good between the parties to it. The statute, in this particular, is declaratory of the common law only, by which all contracts made in violation of law, or contrary to public policy, are illegal, and consequently void; and when executory, will not be enforced, or relieved against when executed — the law treating the whole transaction as void and of no effect, in the former case, and giving full force and effect to it between the parties in the latter — when it has been executed in part, giving it effect so far as it has been executed, and holding it void so far as it remains executory. —Nellis v. Clark, 20 Wend. 24, and 4 Hill, 424. In that case the Statute of Frauds, the common law, and the validity and effect of such contracts, were fully considered, and all the cases bearing on them referred to and commented on by Cowen J., in the Supreme Court, and by Chancellor Walworth, in the Court of Errors. CoAven, J., in delivering the opinion of the Supreme Court, says: “It” (the statute) “declares all contracts, both executory and executed, to defraud creditors, void only as against the latter. It was wanted for nothing else. It was but declaratory; and Avere it not for the fourth section) giAÚng additional- sanctions, the common law would have reached every pin-pose. Now, had the statute stopped Avith declaring the contract simply void, it Avould have changed the common law, avoiding one class, viz., executed contracts, which that law would not interfere with. Therefore, the statute withdraws itself entirely from any interference between the parties, with the intent to let' the common -law take its own course.” Chancellor Wahvorth, in his opinion, says: “A sale or assignment for the purpose of delaying, hindering, or defrauding a creditor in the collection of his debt, was illegal at the common law, and is, in itself, immoral, and against public policy. And the statutes declaring such transactions void as against creditors, are only in affirmance of the common law on that subject. The word only, as used in the statute of Elizabeth, and in our reAdsed statute of l^V, on this subject, was not intended to render executory contracts of that character legal and valid between the parties thereto. But it Avas inserted to prevent the general provisions of the statute from changing the common law rule, as between the parties themselves, in relation to executed contracts.”
The decrees of the court below, I think, should be reversed, and the bills be dismissed. | [
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The Chief Justice;
This Court has no jurisdiction over the subject of this motion. The statute (§3597, Comp. L.) requires the party claiming an appeal in chancery to execute a bond conditioned to perform the decree of this Cdurt, &c. The penalty of this bond is to be fixed, and the sureties approved, by a judge or circuit court commissioner. The power vested in these officers is exclusive; and to entertain this motion, or any other of a kindred nature, would be, in reality, the exercise of an appellate jurisdiction not vested in the Court. If the bond were solely to secure the payment of costs, the rule might be different, for courts may have power over this subject independent of statutory provisions.
However desirable it may be that the power should be vested in this Court to review the judgment of the officer fixing the penalty of the bond and approving the sureties, we can not exercise such a power without legislation authorizing it.
Motion denied. | [
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Campbell J.:
This case comes before us upon the folloAving statement and reservation from the Circuit Court for the county of Oakland :
“This is an action of ejectment, brought by the plaintiff, for the recovery of the west half of the northeast quarter of section thirty-one, tOAvn one north, of range ten east, in the township of Southfield and county of Oakland; and for the purposes of this suit, the parties hereto mutually admit the following as the facts in the case: That the premises in question are a part of the reservation made for the Ottawa, ChippeAva, Wyandotte, and Pottawatomie nations of Indians, under and by virtue of the sixth article of a treaty between the United States and said nations, of the date of the 17th November, 1807.
“That said premises are a part of the reserve mentioned in said article, at or near the Tonquish village, on the River Rouge, in said county and township aforesaid. That the premises in question are a part of section 31, being one of seventy-tAvo sections Avhich the Secretary of the Treasury of the United States designated or reserved, purporting to act under and by virtue of an act of Congress of the 20th day of May, 1826, entitled “ An Act concerning a Seminary of Learning in the Territory of Michigan.” That the only extinguishment of the Indian title to the said premises, shown by the plaintiff, was by virtue of a treaty between the United States and the Pottawatomie Indians, of the 19th September, 1827; Avhich said treaties and acts of Congress are hereby made a part of this case.
“ It is further admitted, as facts in this case, that the sole title claimed by the plaintiff to said premises, is the certificate of the proper authorities of the state of Michigan, under the laws of the state for the conveyance of University lands. And further, that the only title of the state of Michigan to said land for University purposes, is by virtue of the designation and reserve of the Secretary of the Treasury, under color of the said act of Congress. And it is further admitted, that at the time of the commencement of this suit, the defendant was in possession of the premises in controversy.
“The court, deeming the questions arising in this case of sufficient importance, hereby reserves the same for the opinion and advice of the Supreme Court; which questions are as follows:
“1st. Was the Indian title to said premises ever so extinguished as to authorize or warrant the designation or reservation of the same, by the Secretary of the Treasury, under and by virtue of the said act of Congress, of the 20th of May, 1826 ?
“ 2d. Had the state of Michigan any title to the same, for University purposes, which they could grant to the plaintiff ?
“ 3d. Has the plaintiff any title as derived from his said certificate ?”
On the 20th of May, 1826, an act of Congress was passed, authorizing the Secretary of the Treasury “to set apart and reserve from sale,,out of any of the public lands within the Territory of Michigan, to which'the Indian title may be extinguished, and not otherwise appropriated, a quantity of land, not exceeding two entire townships, for the use and support of a University,” &c. — 4 TJ. Stat. at Large, 180.
The premises in question form a part of the two mile reservation near Tonquish’s village on the River Rouge, made by the sixth article of the treaty of Detroit of 1807, between the United States and the Chippewas, Ottawas, Pottawatomies, and Wyandottes. — 7 U. S. Stat. 105. -The reserve was not made for the benefit of any individual grantee, but was, among others, ■ reserved to the Indian nations, and consequently remained as if there had been no cession or treaty whatever. The treaty in question does not show upon its face what tribe was in the occupancy of this reserve. But in 1827, a treaty was made with the Pottawatomie tribe in the following terms (7 U. S. Stat. 805):
“ In order to consolidate some of the dispersed bands of the Pottawatomie tribe, in the' Territory of Michigan, at a point removed from the road leading from Detroit to Chicago, and as far as practicable from the settlements of the whites, it is agreed that the following tracts of land, heretofore reserved for the use of the said tribe, shall be, and they are hereby, ceded to the United States.” Among the lands thus ceded are the premises in question.
When a treaty has been made by the proper federal authority, and ratified, it becomes the law of the land, and the courts have no power to question, or in any manner look into, the powers or rights of the nation or tribe with whom it is made. The action of the treaty making power is conclusive upon such inquiry. And when territorial rights are by treaty recognized as having existed in one tribe, We are bound so to regard them. We must, therefore, consider the treaty of 1827 as extinguishing the reserve made in 1807. And consequently the land was subject to designation for University purposes as soon as the treaty became operative.
The next question to be considered is whether the title to the land so designated was in the state of- Michigan when the certificate issued to the plaintiff. This question is answered by the Ordinance of June 23d, 1836 (4 TI. S. Stat.) containing the terms of admission into the Union offered by Congress for the acceptance of Michigan, which were accepted by the state. By that act, the seventy-two sections set apart for University purposes, under the act of 1826, were granted and conveyed to the state in terms of absolute conveyance, to be appropriated to the use and support of the University in such manner as the Legislature should prescribe. The state became invested with the fee of the land without further conveyance.
The third question reserved is disposed of by the answers to the others.
Let it be certified to the Circuit Court for the county of Oakland, as the opinion of this Court, that each of the questions reserved should be answered in the affirmative.
The other Justices concurred. | [
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Campbell J.:
Plaintiffs, as heirs-at-law, bring ejectment for lands sold by administrator. They object to the title made under the sale, on the grounds, 1st. That it does not appear from the probate proceedings that ■ any guardian was appointed for the heirs; 2d. That administrator’s application for license to sell was not upon oath; and, 3d. That the report of sale omitted to show the purchase price.
The statute (2 Comp. L. pp. 913, 923), provides what defects shall avoid sales, and what acts shall secure the title to the purchaser. This statute received a construction in Howard v. Moore, 2 Mich. 227. As Philip Coon, the ancestor, was a resident of the county where the proceedings were had, and the grant of administration was had there, no doubt can arise as to the probate court of that county being the one which had jurisdiction. The case shows that a license was granted, that no bond was required, but that the oath was duly taken, and notice given, .and that the sale was made accordingly, and was confirmed. There was a literal compliance with so much of the statute as is necessary to give the sale validity* and the good faith of tifie purchaser is not assailed. Although some steps do not appear to have been taken, which should have been, yet the statute provides they may he disregarded in deducing title; and we can not, therefore, hold that a sale is vitiated by their omission. The statute, however, ha& made this saving provision for the benefit of purchasers, and not to encourage carelessness in probate proceedings,, where great attention is needed to prevent injustice to, those who are unable to protect their rights. Judgment was properly rendered in favor of the holder of the probate title, and it should be affirmed.
Manning and Christiancy JJ. concurred. Martin Ch. J. did not sit, having decided the case in the court below.. | [
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Manning J.:
The view we have taken of this case renders it unnecessary, in deciding it, to go fully into the pleadings and proofs, which are more voluminous than satisfactory, and throw little light on several questions discussed on the argument, but which it is not necessary for us to investigate in disposing of the case.
The bill, which is to foreclose a mortgage, is filed by Warner as administrator on the estate of Sarah Whittaker deceased, who, in her lifetime, and on or about the 3d of May, 1849, sold the mortgaged premises to her son Samuel Whittaker, and received from him, the mortgage in question for a part of the purchase money. The mortgage was never recorded, and the bill alleges it is lost or destroyed. ,The sale to Whittaker, the giving of the mortgage, and the loss or destruction of it, are fully proved. The answer of Whit-taker, if it is to be credited, shows he destroyed the mortgage under the pretext his mother had not complied with certain conditions of the sale of the premises to him, and that she had, for that reason, surrendered it to him, and authorized its destruction. It is sufficient to say he has produced no evidence to sustain this part of his answer.
■ On the 10th of March, 1850, Whittaker sold the premises to Vogel for $800, and took from him a bond for $550 of the purchase money, payable $100 on the 1st of December, 1851, $200 on the 1st of May, 1852, and $250 on the 1st of October, 1852, with interest. In August, 1852, complainant informed Vogel, by a written notice served on him, of the mortgage given by Whittaker to Ms mother when he purchased, and of its non-payment, and that Vogel must not make any further payment on his bond and mortgage to Whittaker. There -was then due and to become due on the bond and mortgage about $530. On this state of facts, Vogel claims to be a bona Me purchaser without notice; and there is no evidence he had notice of the Whittaker mortgage when he purchased. To constitute a bona Me 'purchaser there must be want of notice, both at the making of the purchase, and the payment of the purchase money. It is. not sufficient Vogel had no notice when he purchased. Notice was given him before he had paid over all the purchase money. So far as he had paid, he was a bona fide purchaser, and to be protected as such; Ifut not as to the $530 still in his hands, unless the person to whom it then belonged was not affected by complainant’s equity.— Thomas v. Graham, Walk. Ch. 117, and cases there cited.
Vogel states he paid $260 on the bond and mortgage, between the notice to him and the filing of the bill. If so, he paid it in his own wrong, as he might have protected himself against such payment by a bill of interpleader.
On the 1th of September, 1852, subsequent to the notice to Vogel, Whittaker assigned the bond and mortgage to Shaw, who, on the 30th of October, 1852, assigned them to Richmond, to indemnify him as surety for Shaw, and Shaw having subsequently paid the debt for which Richmond was surety, the latter re-assigned them to Shaw. The bona fides of the assignment from Whittaker to Shaw is involved in so much obscurity by their own statements in their several answers under oath, and the testimony of witnesses examined by them to sustain the assignment, that we should hesitate long before pronouncing it free from the taint of baud, if it was necessary to pass upon that question in deciding the case; which it is not.
' No rule is better settled than that the assignee of a chose in action takes it subject to all equities existing between the debtor and creditor. It is not necessary that the equities should exist at the inception of the debt or contract. It is sufficient they exist prior to the assignment; for the reason of the rule is as applicable to one case as to the other; which is, that the assignee has it in his power to protect himself against them by inquiry of the debtor before the assignment. Chancellor Kent, in Murray v. Sylburn, 2 Johns. Ch. 441, says: “The assignee can always go to the debtor and ascertain what claims he may have against the bond, or other chose in action, which he is about purchasing from the obligee.”
There is some evidence in the case going to prove notes were given by Whittaker with the mortgage, and that they, or some of them, are in possession of some one or more of the heirs; and a reversal of the decree is asked on that account. We do not' think it sufficient cause for disturbing the decree, for the following reasons:
No mention is made of them in the .pleadings, and consequently they are not put in issue by them.
Whittaker, the only person who can be called on to pay the notes if they, in fact, are in existence, and do not belong to the estate of Mrs. Whittaker, has not appealed; and neither Vogel nor Shaw, the appellants, can be harmed by them. As appellants, they have no right to ask a reversal of the decree for error in a part of it that in no way affects their rights.
The decree below must be affirmed, with costs.
The other Justices concurred. | [
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Christiancy J.:
This case presents the single question, whether, as against the maker of a promissory note, payable at a particular place, the plaintiff is required to allege or prove presentment or de-. mand of payment at the place.
This question is answered in the negative by the almost uniform current of decisions in the several states of the Union where the question has arisen. The states of Indiana and Louisiana are believed to be the only exceptions. In the correctness of the rule thus established by the great majority of the American cases, we fully concur.
That the question has not before been brought directly before the Supreme Court of this state, must be attributed to the fact that the correctness of this general American doctrine has never been seriously doubted by the profession. nor its effect become the subject of complaint by the business men of the state. <-
In a matter of so much general practical importance to the commercial interests of the country, uniformity of decision is a public benefit; while a want of such uniformity would introduce confusion and uncertainty, impair confidence, and tend to check the commercial relations of our citizens with those of other states, and may therefore be justly deprecated as a public evil.
But, independent of these considerations, we think the rule is just in principle, and beneficial in its operation. It is the rule long- since adopted in England by the Court of King’s Bench, and adhered to by that court, against the opposite rule in the Court of the Common Pleas, until the decision of the House of Lords, in Rowe v. Young, 2 Brod. & Bing. 180, which, contrary to the opinion of a majority of all the judges, repudiated the doctrine of the King’s Bench, and adopted that of the Common Pleas. But so unsatisfactory was that decision to the commercial interests of that country, that Parliament immediately interfered, and, by statute 1 and 2 Geo. IV. ch. 1%, restored substantially the rule adopted by the King’s Bench. See Wallace v. McConnell, 13 Pet. 136; Story on Pr. Notes, §228.
While this rule dispenses with the allegation and proof of presentment and demand in such cases, it secures to the maker all his substantial rights and equities, by allowing him to show in defense that he was ready to pay at the place, and thus to avoid all special damages, and the costs of the suit. And if any special loss has occurred to the maker by the neglect of presentment and demand, his rights will be fully protected.
The judgment of the circuit court must be affirmed, with costs.
The other Justices concurred. | [
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Wilder, J.
Defendant, HP Pelzer Automotive Systems, Inc:, appeals as of right an order granting summary disposition to plaintiffs, Douglas J. Klein and Amy Neufeld Klein. On appeal, defendant argues that the trial court erred by finding that defendant breached a contract to make severance payments to plaintiffs upon their resignation and therefore erred by granting summary disposition to plaintiffs. We reverse and remand for the. trial court to enter an order in favor of defendant. ,
I
In 2009, during the “economic downturn,” defendant undertook a radical restructuring of its business. The restructuring resulted in layoffs of some of defendant’s employees, and it was a stressful time for defendant’s staff. However, defendant’s chief executive officer and president, Dean Youngblood, wanted to retain some “key individuals,” including plaintiffs, during the restructuring. Consistently with this desire, Youngblood sent a letter dated November 2, 2009, to plaintiffs, stating in relevant part:
Amy Klein
Amy, the purpose of this letter is to document to you the commitment of HP Pelzer Automotive Systems, Inc. for your continued employment with the company.
In the next few weeks / months we will begin to restructure the company. This restructuring will result in the elimination of certain positions within the company.
This letter acknowledges that you and your position will not be involved in the restructuring activities.
This letter further acknowledges, if your employment with HP Pelzer Automotive Systems Inc is terminated or ended in any manner in the future you will be entitled to a minimum severance pay equal to 1 (one) full year compensation.
The full year compensation will be based on the previous 12 months salary, bonus, etc from the previous 12 months.
Thank you for your continued support.
Youngblood sent a virtually identical letter to Douglas Klein the same day. Plaintiffs continued to work for defendant during the restructuring. Subsequently, in a letter dated June 7, 2011, defendant’s then president and chief operations officer, John Pendleton, stated the following to Amy Klein, in relevant part:
Dear Amy,
I am writing in connection with a letter you received from Dean Youngblood, dated November 2, 2009.
As you know, in that letter, Mr. Youngblood addressed the fact that in the “next few weeks and months, HP Pelzer Automotive Systems would be restructuring the company and that certain positions would be eliminated”. Although Mr. Youngblood informed you that you and your position would not be involved in the restructuring, he stated that if your employment was in fact terminated or otherwise ended, you would be granted a severance equal to one year of compensation.
As you know, the restructuring referenced in Mr. Young-blood’s November 2, 2009 letter has now occurred and the economic difficulties that prompted the restructuring have eased.
Accordingly, please be advised that Mr. Youngblood’s letter of November 2, 2009 and the severance terms outlined therein are hereby rescinded effective immediately.
Again, Douglas Klein received a virtually identical letter. At the conclusion of the letters to plaintiffs, Pendleton reminded them that defendant is an at-will employer.
On June 8, 2011, plaintiffs’ counsel sent a hand-delivered letter to Pendleton and the corporate human resources manager at defendant, which provided in relevant part:
. . . HP Pelzer agreed in writing that if either Mr. or Mrs. Klein’s “employment with HP Pelzer Automotive Systems, Inc. is terminated or ended in any manner in the future you will be entitled to a minimum severance pay equal to 1 (one) full year compensation.” The agreements for both Mr. and Mrs. Klein further state that “[t]he full year compensation will be based on the previous 12 months salary, bonus, etc. from the previous 12 months.” Copies of the signed letter agreements for both Mr. and Mrs. Klein are enclosed for your ready reference.
Mr. and Mrs. Klein have forwarded Mr. Pendleton’s June 7, 2011 letter purporting to rescind the referenced letter agreements. Be advised that such a purported rescission is not legally binding and is hereby categorically rejected.
The June 8, 2011 letter also provided, “Mr. and Mrs. Klein are seriously considering retirement from HP Pelzer and would like a computation from the company of the amount of the severance payment they can each expect to receive based on the referenced letter agreements.” On July 19, 2011, plaintiffs sent separate letters of resignation to Pendleton and the corporate human resources manager resigning from defendant and stating that their resignations were effective on August 2, 2011.
Plaintiffs filed a three-count complaint against defendant, alleging breach of express contract, breach of implied contract, and promissory estoppel. Plaintiffs’ complaint alleged that, under Youngblood’s 2009 letters, they were entitled to severance payments from defendant based on the “year” of earnings before their resignations.
Before the close of discovery, plaintiffs filed a motion for summary disposition pursuant to MCR 2.116(0(10), alleging that there was no genuine issue of material fact, except for damages, with respect to Count I (breach of express contract). Plaintiffs argued that the 2009 letters were unilateral offers by defendant of severance payments, which they accepted by continuing to work after the offers were made. Citing Cain v Allen Electric & Equip Co, 346 Mich 568; 78 NW2d 296 (1956), plaintiffs argued that the alleged offers could not be revoked once they were accepted. Defendant opposed the motion for summary disposition, arguing inter alia that (1) because it did not terminate or end plaintiffs’ employment, plaintiffs were not entitled to severance payments, (2) the 2009 letters articulated a severance-pay policy that could be revoked or amended by defendant at any time and that the policy was revoked by the June 7, 2011 letters, and (3) Youngblood lacked actual authority to bind defendant to the alleged promises for severance payments, but further discovery was required regarding this factual question.
The trial court concluded that the 2009 letters were clear and unambiguous offers to make severance payments. However, the trial court also determined that summary disposition was premature and permitted additional discovery on the question of Youngblood’s actual authority to bind defendant to the alleged severance-pay contracts.
After discovery was completed, both parties filed motions for summary disposition. In their second motion for summary disposition, plaintiffs argued that defendant had failed to produce any evidence that Youngblood lacked actual authority to bind defendant to the alleged severance-pay contracts. Defendant responded that Youngblood lacked actual authority to make an irrevocable promise to provide severance payments because he was obligated to follow defendant’s policies, including the policy that compensation, benefits, and policies could be modified or revoked at any time.
In.defendant’s motion for summary disposition, defendant argued that the trial court had decided the first motion for summary disposition prematurely because plaintiffs’ depositions were not part of the record at that time. Defendant cited plaintiffs’ admissions in their depositions that Youngblood never promised they would" receive severance payments if they resigned. Defendant further argued that the plain language of the 2009 letters did not allow for severance upon resigna tion and that it is clear that the 2009 letters were designed to encourage plaintiffs not to resign — not to encourage them to resign and collect severance pay. Defendant further argued that any benefits were only intended to be paid during the restructuring period and continued employment was a condition of the agreement, if any agreement existed, and that plaintiffs knew that their compensation and benefits could be revoked or changed at any time because the 2009 letters did not require performance. Defendant also contended that if plaintiffs could accept the severance provision in the 2009 letters by continuing to work, they also accepted the June 7, 2011 letters (rescinding the severance provision) by continuing to work. Finally, defendant again argued that Youngblood lacked actual authority to make an irrevocable promise on behalf of defendant to provide severance payments and that, with respect to their claim of promissory estoppel, plaintiffs did not forbear from resigning.
The trial court found that defendant had offered no evidence to refute plaintiffs’ assertion that Youngblood had actual authority to bind defendant to pay the severance at issue, and once again concluded that Youngblood’s 2009 letters to plaintiffs were promises to pay severance, which entitled plaintiffs to severance payments upon their resignations from defendant. Citing Cain, the trial court held that the fact that each plaintiff continued to work after Youngblood’s offer of severance payments to them constituted acceptance of his offers and that defendant was therefore precluded from subsequently revoking the severance offers. In its May 30, 2012 order, the trial court awarded Amy $106,744.90 and Douglas $91,222.02. The trial court also dismissed Counts II (breach of implied contract) and III (promissory estoppel) as moot.
II
A
On appeal, defendant argues- that the trial court erred by concluding that a unilateral severance-pay contract existed. We agree.
1
The existence and interpretation of a contract are questions of law, which this Court reviews de novo. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). This Court also reviews de novo the trial court’s grant of summary disposition. Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998).
Plaintiffs moved for summary disposition pursuant to MCR 2.116(C)(10), which testathe factual sufficiency of the complaint. Urbain v Beierling, 301 Mich App 114, 122; 835 NW2d 455 (2013). In evaluating a motion for summary disposition brought under Subrule (C)(10), a reviewing court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the'motion. MCR 2.116(G)(5); Tienda v Integon Nat’l Ins Co, 300 Mich App 605, 611-612; 834 NW2d 908 (2013). Summary disposition is properly granted if the proffered evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Tienda, 300 Mich App at 611; MCR 2.116(0(10).
2
“ ‘A contract must be interpreted according to its plain and ordinary meaning.’ ” Wells Fargo Bank, NA v Cherryland Mall Ltd Partnership (On Remand), 300 Mich App 361, 386; 835 NW2d 593 (2013), quoting Holmes v Holmes, 281 Mich App 575, 593; 760 NW2d 300 (2008).
“Under ordinary contract principles, if contractual language is clear, construction of the contract is a question of law for the court. If the contract is subject to two reasonable interpretations, factual development is necessary to determine the intent of the parties and summary disposition is therefore inappropriate. If the contract, although inartfully worded or clumsily arranged, fairly admits of but one interpretation, it is not ambiguous. The language of a contract should be given its ordinary and plain meaning.” [Wells Fargo, 300 Mich App at 386, quoting Holmes, 281 Mich App at 594.]
Again, the trial court concluded, and plaintiffs maintain on appeal, that a unilateral severance-pay contract existed.
“A unilateral contract is one in which the promisor does not receive a promise in return as consideration. 1 Restatement Contracts, §§ 12, 52, pp 10-12, 58-59. In simplest terms, a typical employment contract can be described as a unilateral contract in which the employer promises to pay an employee wages in return for the employee’s work. In essence, the employer’s promise constitutes the terms of the employment agreement; the employee’s action or forbearance in reliance upon the employer’s promise constitutes sufficient consideration to make the promise legally binding. In such circumstances, there is no contractual requirement that the promisee do more than perform the act upon which the promise is predicated in order to legally obligate the promisor.” [Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 138 n 9; 666 NW2d 186 (2003), quoting In re Certified Question, 432 Mich 438, 446; 443 NW2d 112 (1989).]
Both parties and the trial court relied heavily on Cain, 346 Mich 568. In Cain, the employer issued a personnel policy, which among other provisions included a termination policy that provided that “an ‘executive’ having 5 to 10 years employment should be entitled to 2 months termination pay.” Id. at 571. The personnel policy also included the following caveat: “ ‘Of course such policies cannot be complete and are subject to change or amendments either through necessity created by laws or for other reasons that may come to our attention.’ ” Id. at 570. The employee plaintiff subsequently resigned, effective December 15, 1954. Id. at 571. On October 14, 1954, before the effective date of the employee’s resignation, the employer fired the employee, effective immediately. Id. Then, the employer’s board of directors passed a motion to deny termination pay to the employee. Id. at 572.
- Our Supreme Court held that,the termination policy was an offer of a contract, which the employee accepted by continuing employment beyond the. five-year term required by the policy. Id. at 579-580. Because the employee . accepted the offer, the company was called upon to perform, preventing the company from changing the policy as the board of directors tried to do with its motion to deny termination pay to the employee. Id. at 580.
In Gaydos v White Motor Corp, 54 Mich App 143, 146; 220 NW2d 697 (1974), employees were promised severance pay (in lieu of two weeks’ termination notice) if they had more than six months of service with the employer. This- Court concluded that, by the employees’ continuing to work after the promulgation of the policy, “consideration was supplied for a unilateral contract, upon which the employees had the right to rely.” Id. at 148.
The facts of this case are distinguishable from Cain and Gaydos. The 2009 letters at issue here did not create unilateral severance-pay contracts because the letters did not require plaintiffs’ action or forbearance in reliance on the employer’s promise. Sniecinski, 469 Mich at 138 n 9. In Cain, the employee was required to work between 5 and 10 years to earn 2 years of termination pay. In Gaydos, the employees were required to work 6 months to earn severance pay. In this case, although Youngblood wrote that the purpose of the 2009 letters was to express defendant’s commitment to plaintiffs’ continued employment with defendant, plaintiffs need not have continued their employment to collect the severance payments. Again, the letters provided:
This letter further acknowledges, if your employment with HP Pelzer Automotive Systems Inc is terminated or ended in any manner in the future you will be entitled to a minimum severance pay equal to 1 (one) full year compensation. [Emphasis added.]
The phrase “ended in any manner in the future” renders Youngblood’s “promise” a gratuity and not a unilateral offer of a contract. As defendant correctly argues, plaintiffs were not required to work at all after receiving the letters. Rather, the plain language of the letters enabled plaintiffs to resign immediately and collect the severance pay offered. The letters required no action or forbearance. Without sufficient consideration, defendant’s promise in the letters was not legally binding. Id.
The facts of this case are similar to the facts in Kolka v Atlas Chem Indus, 13 Mich App 580; 164 NW2d 755 (1968). In Kolka, the plaintiff had been on disability leave for approximately one year when the employer instituted a separation-pay policy. Id. at 581. Although the plaintiff was on inactive payroll, he was in “no position to comply with or give consideration for an offer of” separation pay. Id. Absent sufficient consideration, this Court held that the plaintiff was not entitled to separation pay and that the trial court had properly granted summary disposition for the defendant employer. Id. The plaintiff on disability leave in Kolka could not provide consideration for the employer’s promise, and plaintiffs here were not required to provide consideration.
In the instant case, defendant’s severance-pay policy required no consideration (performance or forbearance) by plaintiffs. Because no consideration was required to accept the severance pay offered in the 2009 letters, no unilateral contract was formed. Instead, the 2009 letters created a policy that could be modified or revoked. As in Kolka, there was no event here, such as continued employment for a certain number of years, see Cain, 346 Mich at 571, that could result in the vesting of the right of severance payments. Absent a vested right to severance payments, defendant could revoke the policy as it did by letter on June 7, 2011. Therefore, by the time plaintiffs resigned in July 2011, because the severance-pay policy had already been revoked by defendant, contrary to the trial court’s conclusion, plaintiffs were not entitled to severance payments.
B
The trial court found that an express contract existed and did not reach plaintiffs’ claims in Count II (breach of implied contract) or Count III (promissory estoppel). This Court generally does not review an issue undecided by the trial court unless it is a question of law and all the facts needed for resolution are present. Candelaria v B C Gen Contractors, Inc, 236 Mich App 67, 83; 600 NW2d 348 (1999). Because the interpretation of the 2009 letters is a question of law, this Court may review those claims also.
l
Plaintiffs’ breach-of-implied-contract claim is derived from the discharge-for-cause doctrine enunciated by Toussaint v Blue Cross & Blue Shield of Mich, 408 Mich 579; 292 NW2d 880 (1980). In Toussaint, the Michigan Supreme Court held that a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable, even if the contract is indefinite or not for a definite term. The provision could become part of the contract either (1) by express agreement, oral or written, which required negotiation, or (2) as a result of an employee’s legitimate expectations grounded in an employer’s policy statements. The Supreme Court in Toussaint held that both plaintiffs had presented sufficient evidence of an express agreement. For example, one plaintiff was told that if he was “doing the job,” he would not be discharged. The Supreme Court further held that a jury could find that one of the two plaintiffs also had legitimate expectations (or an implied contract) grounded in his employer’s written policy statements, set forth in the manual of personnel policies. Id. at 597-599.
In Certified Question, 432 Mich at 441, the Supreme Court next answered in the affirmative that a written discharge-for-cause personnel policy (an implied contract) could be unilaterally modified by an employer without explicit reservation of that right at the outset. The Supreme Court noted:
[Wlritten personnel policies are hot enforceable because they have been “offered and accepted” as a unilateral contract; rather, their enforceability arises from the benefit the employer derives by establishing such policies.
Under the Toussaint analysis, an employer who chooses to establish desirable personnel policies, such as a discharge-for-cause employment policy, is not seeking to induce each individual employee to show up for work day after day but rather is seeking to. promote an environment conducive to collective productivity [Id. at 453-454.]
The Supreme Court concluded that a policy should be a “flexible framework for operational guidance” rather than “a perpetually binding contractual obligation,” which would allow businesses to be “adaptable and responsive to change,” id. at 456, and as such, an employer may unilaterally make changes in a written discharge-for-cause policy, but “reasonable notice of the change must be uniformly given to affected employees,” id. at 456-457. The Court noted that discharge-for-cause is not a right that can accrue or vest and suggested that employers may not so easily change policies that do accrue or vest. Id. at 457.
Our Supreme Court has since declined to extend Toussaint’s legitimate-expectations test to a compensation ' plan: “Were we to extend the legitimate-expectations claim to every area governed by company policy, then each time a policy change took place con tract rights would be called into question.” Dumas v Auto Club Ins Ass’n, 437 Mich 521, 531; 473 NW2d 652 (1991) (opinion by Riley, J.).
Again, the trial court did not reach the question whether an implied contract existed. Michigan courts have not extended the legitimate-expectations test to severance-pay policies, and we decline to do so here. Employers should enjoy flexibility in modifying their policies. See Certified Question, 432 Mich at 456. But even if we were to conclude that plaintiffs had legitimate expectations of severance payments, defendant properly revoked the severance-pay policy with the June 7, 2011 letters. Pendleton explained that the economic downturn and restructuring that spurred the 2009 letters had ended, so the severance-pay policy was no longer necessary. There has been no allegation by plaintiffs that defendant failed to provide reasonable notice of the June 7, 2011 change. Id. at 457. In fact, when plaintiffs were originally hired by defendant, they signed personnel forms that provided that changes to employment, compensation, and benefits could be modified or eliminated at any time upon simple written notice, which they received from Pendleton.
Plaintiffs claim that they rejected the June 7, 2011 letters revoking the severance-pay policy. But no agreement for severance pay existed, and as the Supreme Court in Certified Question, 432 Mich at 456, explained, employers may unilaterally make changes to employment policies so they can best adapt to changing business conditions. If plaintiffs were displeased by the change in policy, they were free to resign, but they were not entitled to severance payments upon their resignation by virtue of an implied contract. Plaintiffs’ claim in Count II (breach of implied contract) could not have survived summary disposition.
2
Just as plaintiffs had no legitimate expectations that the severance-pay policy would not be revoked, plaintiffs had no claim in promissory estoppel. The elements of promissory estoppel are
(1) a promise, (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee, and (3) that in fact produced reliance or forbearance of that nature in circumstances such that the promise must be enforced if injustice is to be avoided. [Novak v Nationwide Mut Ins Co, 235 Mich App 675, 686-687; 599 NW2d 546 (1999).]
First, the 2009 letters articulated not a promise, but a severance-pay policy that could be changed at will. Moreover, even if defendant had made a promise by the 2009 letters, before revoking the severance-pay policy, deféndant could not have reasonably expected that its revocation of the “promise” by the June 7, 2011 letters would induce plaintiffs to resign within a month and thereafter attempt to collect the severance pay referred to in the “promise.” Therefore, plaintiffs’ promissory estoppel claim could not have survived summary disposition.
hi
In summary, no unilateral contract for severance pay existed, and defendant properly revoked the severance-pay- policy on June 7, 2011. Thus, when plaintiffs subsequently resigned, they were not entitled to severance payments. The trial court erred by finding that defendant breached an express contract to make severance payments to plaintiffs and granting summary disposition in favor of plaintiffs for that breach of contract. In light of the June 7, 2011 letters revoking the policy, plaintiffs’ claims in Counts II (breach of implied contract) and III (promissory estoppel) also could not have survived summary disposition.
We reverse the trial court’s grant of summary disposition to plaintiffs on Count I (breach of express contract), denial of defendant’s motion for summary disposition, and dismissal of plaintiffs’ remaining claims as moot. We vacate the trial court’s award of damages to plaintiffs and remand to the trial court for entry of an order granting summary disposition in favor of defendant on all counts. We do not retain jurisdiction.
Defendant, as the prevailing party on appeal, may tax costs pursuant to MCR 7.219.
O’Connell, P.J., and Meter, J., concurred with Wilder, J.
Plaintiffs are married to each other.
We reject defendant’s alternative argument that the 2009 letters would not allow an employee to resign and collect. Defendant claims that some action by it, such as termination, was required. The plain language of the 2009 letters is clear. The phrase “ended in any manner” includes resignation. No provision in the 2009 letters requires action by defendant to end the employment.
We reject defendant’s argument that the 2009 letters limited the severance-pay policy to the restructuring period. The plain language of the letters provided for severance if plaintiffs’ employment “ended in any manner in the future.” The phrase “in the future” is not limited to the restructuring period. Therefore, even though the 2009 letters were sent to retain key individuals during the restructuring and the restructuring was over,-the policy arguably continued until Pendleton sent the June 7, 2011 letters, which ended the policy.
Because of our conclusion that defendant could revoke the severance-pay policy at any time, we need not address defendant’s argument that Youngblood lacked the actual authority to bind defendant to irrevocable severance-pay contracts.
A generalized personnel policy could not ordinarily defeat a definitive offer and acceptance for severance, but here, where no contract existed and the policy could be amended at any time, plaintiffs’ awareness of such flexibility at the time of hire is notable. | [
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Murphy, C.J.
Following a jury trial, defendant appeals as of right his convictions for second-degree murder, MCL 750.317, assault with intent to commit murder (AWIM), MCL 750.83, being a felon in possession of a firearm, MCL 750.224f, and three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 35 to 80 years’ imprisonment for the murder and AWIM convictions, to 76 to 360 months’ imprisonment for the felon-in-possession conviction, and to 2 years’ imprisonment for each of the felony-firearm convictions. We affirm.
On appeal, defendant first argues that the trial court erred by declining to give a duress instruction in response to a request for such an instruction by the jury. Rather than instruct on duress, the trial court directed: “You must follow the instructions given to you. Duress is not a defense to homicide/murder.” Defense counsel objected to the trial court’s response to the jury, thereby preserving this issue for review. See MCR 2.512(C). “Claims of instructional error are generally reviewed de novo by this Court, but the trial court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).
A defendant has the right to have a properly instructed jury consider the evidence against him or her, and it is the trial court’s role “to clearly present the case to the jury and to instruct it on the applicable law.” Id.; see also MCL 768.29. “The instructions must include all elements of the charged offenses and any material issues, defenses, and theories if supported by the evidence.” People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005). When examining instructions to determine if an error has occurred, the instructions must be considered “as a whole, rather than piecemeal . . . .” People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011). Even if imperfect, a jury instruction is not grounds for setting aside a conviction “if the instruction fairly presented the issues to be tried and adequately protected the defendant’s rights.” Id. at 501-502.
“Duress is a common-law affirmative defense.” People v Lemons, 454 Mich 234, 245; 562 NW2d 447 (1997). To be entitled to an instruction on an affirmative defense, such as duress, a defendant asserting the defense must produce some evidence from which the jury can conclude that the essential elements of the defense are present. Id. at 246. Specifically, to merit a duress instruction, a defendant bears the burden of producing some evidence from which the jury could conclude the following:
A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm. [Id. at 247.]
A threat of future injury is not sufficient; rather, “the threatening conduct or act of compulsion must be ‘present, imminent, and impending... d ” Id., quoting People v Merhige, 212 Mich 601, 610; 180 NW 418 (1920). Moreover, the threat “ ‘must have arisen without the negligence or fault of the person who insists upon it as a defense.’ ” Lemons, 454 Mich at 247 (citation omitted).
Relevant to defendant’s case, it is well established that duress is not a defense to homicide. People v Gimotty, 216 Mich App 254, 257; 549 NW2d 39 (1996); People v Moseler, 202 Mich App 296, 299; 508 NW2d 192 (1993); People v Etheridge, 196 Mich App 43, 56; 492 NW2d 490 (1992); People v Travis, 182 Mich App 389, 392; 451 NW2d 641 (1990). “The rationale underlying the common law rule is that one cannot submit to coercion to take the life of a third person, but should risk or sacrifice his own life instead.” People v Dittis, 157 Mich App 38, 41; 403 NW2d 94 (1987). Because duress is not a defense to homicide, the trial court did not err by declining to instruct the jury in this regard with respect to defendant’s murder charge. Defendant maintains that the principle that duress is not a defense to homicide is inapplicable when he did not actually commit the murder himself but was instead prosecuted primarily as an aider and abettor to murder. We fail to see the logic in this argument, and defendant provides no supporting authority that an aider and abettor to murder can employ a duress defense even though a principal is not entitled to do so. If directly committing a homicide is not subject to a duress defense, assisting a principal in the commission of a homicide cannot be subject to a duress defense either, considering that an aider and abettor to murder is assisting in taking the life of an innocent third person instead of risking or sacrificing his or her own life. See Dittis, 157 Mich App at 41. The underlying rationale articulated in Dittis is equally sound and not distinguishable in the context of aiding and abetting murder. The court in State v Dissicini, 126 NJ Super 565, 570; 316 A2d 12 (NJ App, 1974), aff'd 66 NJ 411 (1975), in rejecting a similar argument, observed:
Defendant does not dispute the general rule, but argues that it is applicable only to a defendant who is the actual perpetrator of the killing, and that the defense should be available to one such as he who did not directly kill but only aided and abetted. Authoritative discussion of the point is sparse ... and this is undoubtedly so because the argument has little merit.
The California Supreme Court has stated that “because duress cannot, as a matter of law, negate the intent, malice or premeditation elements of a first degree murder, we further reject defendant’s argument that duress could negate the requisite intent for one charged with aiding and abetting a first degree murder.” People v Vieira, 35 Cal 4th 264, 290; 25 Cal Rptr 3d 337; 106 P3d 990 (2005). Even the United States Court of Appeals for the Ninth Circuit has noted that duress does not excuse murder and “in many jurisdictions, duress does not excuse attempted murder or aiding and abetting murder[.]” Annachamy v Holder, 733 F3d 254, 260 n 6 (CA 9, 2012). We are unaware of any Michigan precedent to the contrary in which the issue was directly confronted.
Defendant also contends on appeal that duress was available as a defense regarding his AWIM conviction. However, defendant has not provided any authority for the proposition that a duress defense applies to AWIM, nor are we aware of any such rule. On the contrary, application of a duress defense in the context of AWIM would be entirely incongruous with the principle that “one cannot submit to coercion to take the life of a third person, but should risk or sacrifice his own life instead.” Dittis, 157 Mich App at 41. AWIM is, by definition, an assault with the intent to kill, “which, if successful, would make the killing murder.” People v Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120 (2010) (quotation marks and citation omitted). In other words, it is only the fortunate fact of the victim’s survival — not a difference in the defendant’s conduct — that renders the defendant guilty of AWIM as opposed to murder. Given that a defendant may not justify homicide with a claim of duress, it logically follows that a defendant cannot justify conduct intended to kill simply because he or she failed in the effort. Instead, for one faced with the choice between saving oneself and endeavoring to kill an innocent third person, the law recognizes that one “should risk or sacrifice his own life instead.” See Dittis, 157 Mich App at 41; see also State v Mannering, 112 Wash App 268, 276; 48 P3d 367 (2002) (stating that allowing duress as a defense to attempted murder but not to murder would be absurd because just as “duress is not a defense to murder, it is also not a defense to attempted murder”).
Defendant argues that by failing to instruct the jury on duress relative to the AWIM charge, the trial court effectively allowed for an AWIM conviction absent the need to establish an intent to kill. This argument lacks merit; the trial court specifically instructed the jury that the prosecution was required to prove beyond a reasonable doubt that there was an intent to kill with respect to the AWIM charge. And the lack of a duress instruction in no way alleviated the prosecution’s burden to establish an intent to kill. In sum, duress is not a defense to AWIM, and, accordingly, the trial court did not err by failing to instruct on duress.
Defendant next argues on appeal that the trial court erred by omitting an element of AWIM from the instructions, an error that defendant maintains amounts to structural error. However, by approving the jury instructions as given, defense counsel waived this argument. Kowalski, 489 Mich at 503-505. Additionally, the trial court’s instruction on AWIM was consistent with CJI2d 17.3, now known as M Crim JI 17.3, except that the court did not include the following bracketed language: “the circumstances did not legally excuse or reduce the crime.” Defendant contends that the failure to include this language eliminated the prosecution’s obligation to prove that, had the assault with intent to kill been successful, it would have amounted to murder. Defendant ties the failure to instruct on the matter to the issue of duress, claiming that duress constituted a legal excuse. However, we have already rejected the duress argument, and defendant does not set forth any other mitigating basis that would have necessitated the instructional language that was not included by the court in instructing the jury. Accordingly, even assuming an instructional error on the single element, there was no prejudice and thus no need to reverse given that “[t]he trial court’s instructions, when viewed as a whole, adequately protected defendant’s rights.” People v Carines, 460 Mich 750, 770-771; 597 NW2d 130 (1999).
Lastly, defendant challenges the sufficiency of the evidence supporting the second-degree murder and AWIM convictions. Appeals regarding the sufficiency of the evidence are reviewed de novo. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). Juries, and not appellate courts, hear the testimony of witnesses; therefore, we defer to the credibility assessments made by a jury. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). “It is for the trier of fact... to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). The prosecution need not negate every reasonable theory of innocence, but need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Circumstantial evidence and the reasonable inferences that arise from that evidence can constitute satisfactory proof of the elements of the crime. Carines, 460 Mich at 757. We resolve all conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
Relevant to defendant’s convictions, the elements of AWIM, once again, are “(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.” Ericksen, 288 Mich App at 195-196 (quotation marks and citation omitted). The elements of second-degree murder consist of “ ‘(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.’ ” Reese, 491 Mich at 143, quoting People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998). The term “malice” has been defined as “the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” Goecke, 457 Mich at 464.
In defendant’s case, the jury was also instructed on an aiding-and-abetting theory of criminal liability. See MCL 767.39. “The phrase ‘aids or abets’ is used to describe any type of assistance given to the perpetrator of a crime by words or deeds that are intended to encourage, support, or incite the commission of that crime.” People v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004). To show that an individual aided and abetted the commission of a crime, the prosecution must establish
“that (1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid and encouragement.” [Carines, 460 Mich at 757 (citation omitted).]
With respect to the intent element, our Supreme Court in People v Robinson, 475 Mich 1, 15; 715 NW2d 44 (2006), elaborated:
We hold that a defendant must possess the criminal intent to aid, abet, procure, or counsel the commission of an offense. A defendant is criminally liable for the offenses the defendant specifically intends to aid or abet, or has knowledge of, as well as those crimes that are the natural and probable consequences of the offense he intends to aid or abet. Therefore, the prosecutor must prove beyond a reasonable doubt that the defendant aided or abetted the commission of an offense and that the defendant intended to aid the charged offense, knew the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commission of the intended offense.
On appeal, defendant focuses his sufficiency arguments on his state of mind and whether it was shown that he possessed the requisite intent to commit second-degree murder and AWIM. Relevant to his arguments, intent may be inferred from circumstantial evidence. McGhee, 268 Mich App at 623. Indeed, “because it can be difficult to prove a defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant’s state of mind. .. .” Kanaan, 278 Mich App at 622. Intent to kill may be inferred from all the facts in evidence, including the use of a deadly weapon. See Carines, 460 Mich at 759. Minimal circumstantial evidence is sufficient to show an intent to kill, and that evidence can include a motive to kill, along with flight and lying, which may reflect a consciousness of guilt. People v Unger, 278 Mich App 210, 223, 225-227; 749 NW2d 272 (2008).
Viewing the evidence in this case in the light most favorable to the prosecution, it is plain that there was sufficient evidence to support defendant’s convictions and, in particular, to establish that he possessed the requisite intent for each offense. The evidence showed that defendant and his accomplices, Steven Anderson and Robert Wright, believed that one of the victims had been involved in assaulting and robbing Wright a month before the present shooting. Defendant had previously told Wright that he would help him “whoop” those involved with the assault and, by defendant’s own admission, he went to the murder scene intending to fight one of the victims in exchange for money. While claiming that he only intended a fistfight, defendant brought a .380 caliber handgun to the scene. He brought this gun knowing that Wright wanted to kill those involved in his assault. Anderson and Wright also had guns. Further, defendant admitted that he was present at the shooting and that he, like Wright and Anderson, fired his gun. Consistent with this admission, police recovered six .380 caliber shells at the scene, a shotgun casing, and later, at another location, spent cartridges for the .44 caliber weapon that had been used by Wright and disposed of by Anderson. As a result of the shooting, one victim was fatally shot in the chest. The other victim suffered gunshot wounds to the leg. As indicated in Robinson, 475 Mich at 15, a “defendant is criminally liable for the offenses the defendant specifically intends to aid or abet, or has knowledge of, as well as those crimes that are the natural and probable consequences of the offense he intends to aid or abet.” The testimony rationally supported a finding that defendant intended to aid or abet a murder, that he had knowledge that a murder was going to be committed, or that he intended to aid and abet conduct or an offense for which the natural and probable consequence was a homicide.
Furthermore, defendant, like Wright and Anderson, fled after the shooting. Defendant then proceeded to disassemble his gun, and he disposed of all three guns in the Kalamazoo River. He also destroyed the cellular telephone that he had been using to communicate with Wright on the day of the shooting. He repeatedly lied to police about his involvement, notably withholding information about which gun he had fired until police deliberately misled him by indicating that the shotgun blast had killed the victim. Only when misinformed in this manner did defendant acknowledge that he fired the .380 caliber weapon, and, when asked why he withheld this information, he told police that he did not want to say anything until he knew which gun was actually the murder weapon. From this evidence, a jury could reasonably infer that defendant feared that he might have fired the fatal shot, meaning that, contrary to defendant’s claims, he did aim at the victims, intending to kill them. Overall, the evidence was sufficient to support defendant’s convictions of second-degree murder and AWIM.
In arguing to the contrary on appeal, defendant maintains that he went to the scene at Wright’s behest for a fistfight, not a shooting, and that he fired his weapon harmlessly into the air. These arguments do not entitle him to relief, however, because the credibility of these assertions was a question for the jury, and it was free to reject his testimony in this regard. See Wolfe, 440 Mich at 515. Defendant also again raises the question of duress, arguing that the jury should have been instructed on this defense and that, if properly instructed, the jury likely would have acquitted him. However, as discussed earlier, defendant was not entitled to a duress instruction and, consequently, his arguments in this regard lack merit. Ultimately, the jury disbelieved defendant’s claims and concluded that the requisite intent to kill for AWIM and the requisite malice for second-degree murder had been proved. There was sufficient evidence to support the jury’s conclusions in this regard, and reversal is unwarranted.
Affirmed.
Shapiro and Riordan, JJ., concurred with Murphy, C.J.
Defendant concedes on appeal that the facts did not support an instruction on duress in regard to the felon-in-possession conviction. | [
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Campbell J.:
* Suit was brought in the court below upon a sheriff’s bond, in the name of the People for the use of Arthur Hughes, and Daniel G. Quackénboss as administrator of John T. Brown, against Darius C. Jackson as sheriff, and Addison J. Comstock and Ezekiel Webb as sureties, and Addison J. Comstock as executor of Darius Comstock, a deceased surety, and Mary E. Hicks, administratrix of Daniel Hicks Jr. also a deceased surety. 'tjuackenboss having died, his death was suggested, and Daniel Williams substituted as a new administrator of John T. Brown as a plaintiff. Judgment was rendered against all the defendants except Mrs. Hicks as administratrix. The record does not show her death, or any discontinuance -against her.
The cause of action, as set forth in the declaration, is as follows: It avers the execution by Jackson hs sheriff of Lenawee county, and by Addison J. Comstock, Daniel Hicks Junior, Ezekiel Webb, and Darius Comstock, of an official bond in 1842: That in July, 1843, John T. Brown and
Arthur Hughes commenced an attachment suit in the Circuit Court for Lenawee county against Otho Hinton, upon which Jackson, as sheriff, attached personal property: That Hinton appeared; and, on the 12th of October, 1847, Brown and Hughes obtained judgment against him in the attachment suit, for $1300 damages, and $136.35 costs: That during the same year two executions were successively issued -on the judgment, to the sheriff of Lenawee county, both of which were returned unsatisfied: That in May, 1849', a third execution was issued to the same county, and put in the hands of James Wheeler, deputy sheriff; who, before the return day, made return on the writ that he had made diligent search in said 'county for property of the defendant, and could find neither the goods attached, nor any other property of the defendant. The breach alleged is that Jackson did not retain the attached property, or take a bond. Damages wéré laid at $2500. The judgment was for a larger sum.
The party for whose use the sheriff’s bond is sued is, by law, deemed to be the plaintiff in the action. — R. S. of 1846, p. 531, §1 (Comp. L. §4918.) Brown baying died before action brought, the judgment survived to Hughes,, who was alone entitled in law to collect it. — Martin v. McReynolds, ante p. 10. There was no joint right of prosecution, either in Quackenboss and Hughes, or in Williams, and Hughes. As all this is apparent on the face of the. declaration, it showed no joint cause of action in the plaintiffs,, and no recovery could be had under it.
As this disposes of the whole case, it is unnecessary to, look into the other errors alleged.
The judgment below must he reversed, with costs.
The other Justices concurred. | [
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Campbell J.:
The defendant was indicted for obstructing an alleged highway, described in the indictment as leading from Jefferson Avenue to the Detroit River, in the city of Detroit, and known as Shelby street. A special verdict was found, and the liability of the defendant to judgment upon that verdict, is the question reserved for our opinion.
From this it appears that in the year 1807 the Governor and Judges adopted a plan of twelve sections, in separate parts — section 3, embracing the land in controversy, having been adopted April 27th, 1807; and on the same day a resolution was adopted that the plan of this section, and of sections 1, 2, 4, 6, and 8, “be confirmed, and be a record, and that they be signed by the President of the Board, and be attested by the Secretary in identification; and that no alteration be suffered therein without an order of the Governor and Judges to that effect.” The section in question is bounded north by Jefferson Avenue, and east by Woodward Avenue. A street parallel with Jefferson Avenue has long been, and is now, open according to the plan, as far as the street below the land in controversy. The plan calls for its continuation a considerable distance further, to the west boundary of the plan. The jury find that the street and alley spaces on this section have never been, except in part, opened, used, and recognized in fact as streets and alleys: That what is claimed as Shelby street in the indictment is represented on the plan by a space of sixty feet in width, reaching- from Jefferson Avenue to the river: That on January 16th, 1811, upon the application of Aaron Greeley and David Beard, to purchase the lands in front of their respective lots in the old town of Detroit, between the Merchants’ and Public Wharf, an order was made to sell to them, at a certain rate per square foot, subject to the new plan of Detroit, and all intervening claims; and a deed was accordingly made to David Beard of a tract embracing the premises in controversy, for a consideration embracing payment for the whole of it. This lot extended to the street parallel with Jefferson Avenue, now known as Woodbridge street. In the habendum, clause of the deed, it was made subject to the new plan of Detroit, and all interfering claims At the date of the deed, the water came nearly or quite up to'Woodbridge street at the intersection of Shelby street, and nearly all the premises conveyed were under water. Since that date, Beard and his grantees (the defendant being such) have continuously claimed and occupied the whole premises as private property; and the land was reclaimed from the river, and buildings erected upon the alleged street, as early as 1816, and continued there ever since. In 1819, the building-now complained of was erected in the alleged street space, and has been maintained there to this time. So much of the alleged Shelby street as lies between Woodbridge street and Jefferson Avenue was never actually opened as a street, according to the plan. The ground over which it was projected was known as the Dodemead lot, and remained enclosed and used as private property, until 1828, when the corporate authorities of Detroit caused a street forty-four feet wide to be opened through the Dodemead lot, and paid the owners of the land for the strip so taken. The premises in question have always been claimed, reputed, and occupied as private property. The building in question has been used as a ware house, and a passage has been kept up from- Woodbridge street to it, and used by all persons having business at the warehouse and dock. No part has been claimed, or used,, or worked by the public; and the whole has been regularly taxed for all various public puiposes since 1834. The passage referred to is about thirty feet wide, bounded by buildings on either side, which are in the space claimed as the street in question. The Governor and Judges sold no part of the lands adjacent to the alleged street, by lots numbered according to the plan, and never referred to it as a street subsequently, and never sold property bounding upon it as an actual or supposed street.
The question for our determination, therefore, is whether the land in controversy was a public highway when the building complained of was erected in 1819, and whether it was so at the date of the indictment, which is for maintaining an existing nuisance.
It is claimed by the People that the action of the Governor and Judges, in adopting the plan of section 3, constituted the space marked there as a street, a public highway, operating as a complete and irrevocable dedication of it, in which the public became at once, and perpetually, interested. It therefore becomes necessary to inquire into the nature and effect of their action.
No law has ever declared this strip of land to be a public highway, and there is no statute declaring the effect of making-such a map or plan. Our statute relating- to town plats requires certain formalities which are not found here. We are therefore left to decide the case upon such principles of law as can be found applicable.
Where the provisions of the statutes for opening streets and roads have not been followed, the common law recognizes the existence of ways by dedication. If the owner of the fee does such acts as show, unequivocally, an intent to dedicate his land to the public for a highway, such dedication, if properly accepted, will make the land dedicated a public highway, Avithout reference to any particular period of time. But to make out a dedication, it in not only necessary that the' act be done by the owner of the land, but all of the acts of the OAvner bearing upon the question are to be considered together. One act may be explained or qualified by another. This subject was very ably investigated in the case of the People v. Beaubien, 2 Doug. Mich. 256 ; and Ave deem it unnecessary to add any thing to the reasoning of that case. No dedication can be made out without an intent clearly manifested. And it is also necessary that the dedication be accepted. No question, can arise as to the necessity of both of these tilings where the land dedicated is individual property. But the peculiar situation of the property, and the character of the actors, in the case before us, render it necessary to determine whether, under the circumstances presented, these rules are in any way modified; or whether the public capacity of the Land Board does not invest them Avith a two - fold relation of land - OAraer and representative of the public, and whether they have not assumed to act in both positions.
The precise point, as to the effect of the adoption of the plan of this section, has not been passed upon. "We were referred to the case of the People v. Carpenter, 1 Mich. 273, as decisive of this controversy. We are, however, miable to perceive Iioav the facts involved there were at all analogous to those hi this case. That was an indictment for obstructing Woodward Avenue, which was found by the special verdict to have been opened and used as a highway before the adoption of any portion of the city plan. As a matter of fact, that street, as Avell as Jefferson Avenue, was made a highway by express statute in 1805, before any authority existed to make a general plan. No question, therefore, arose upon the authority of the Governor and Judges to create highways, or upon the effect of the adoption of the plan in creating them. The act there complained of had never been authorized by any one. The case is therefore no authority, one way or another, upon any point in issue here.
It was decided in the case of the People v. Beaubien, that an individual, by making a plan, and selling- lots in accordance with it, did not necessarily create the streets upon it highways— although he might thereby become liable to his vendees. The rights of the public would depend upon the intent to dedicate on his part, and an acceptance of the dedication by the public. Until, by the union of both of these requisites, the public easement had become perfectly established, no' criminal prosecution could be maintained! As to the method whereby acceptance may be manifested, the authorities are not uniform. Where there has been no publio user, there must, undoubtedly, be some act of the lawful authorities. , The courts of several states have held that, inasmuch as the local authorities are required to determine what highways are needed for public convenience, and as existing highways always entail more or less expense in repairs, it is contrary to public policy to permit them to be established without the action of these authorities, unless the user be so long that the law raises a presumption in their favor. — Hobbs v. Lowell, 19 Pick. 405; Bowers v. Suffolk Manf. Co. 4 Cush, 332; Wright v. Tukey, 3 Cush. 290; Page v. Weathersfield, 13 Vt. 424; Blodgett v. Royalton, 14 Vt. 288; City of Oswego v. Oswego Canal Co. 2 Sel. 257; Badeau v. Mead, 14 Barb. 328; Clements v. West Troy, 16 Barb. 251; Kelley’s case, 8 Gratt. 632; Indianapolis v. McClure, 2 Ind. 147. The case of Underwood v. Stuyvesant, 19 Johns. 181, lays down this doctrine in regard to city streets in very strong terms. And in all the cases which have arisen in New York, upon town or city ways, this principle has been adhered to. It would certainly lead to strange consequences, if the plan of a city could be placed beyond the reach of its corporate authorities, and varied without their assent. The same mischiefs would not occur in opening rural ways, and there may be no special reason for holding such a rule in regard to them. Our statutes, however, have always made provision that roads not worked within a specified period shall be discontinued, and therefore the question at common law becomes, as to them, unimportant. Without expressing an opinion whether these statutes apply to city streets, we think that an acceptance of such streets should be manifested by some act of the authorities, either formally confirming the dedication, and ordering their opening', or exercising authority over them • in some of the ordinary ways of improvement or regulation. In the case of the city of Oswego, the plan had been made by the public agents of the state, yet the rule was held to apply.
We now proceed to examine into the circumstances of the ease before us.
It appears that the Governor and Judges made a plan, adopting- different portions of it at different times, embracing all lands, whether public or private, within its bounds. It was a symmetrical paper plan, as the facts show, made, as is apparent from the face of it, without any actual survey upon the ground. Portions of it were in the water, and portions of it, as subsequent public legislation shows, covered reserved lands and private farms. By the act of the Northwest Territory incorporating the town of Detroit, passed in 1802, its corporate limits embraced at least two farms — the Askin, or what is now known as the Brush farm, and the Macomb, now known as the Cass farm. A fort was at the time existing- by authority of law, and military reservations, recognized and defined by subsequent acts of Congress and of the territory, were scattered over portions of the town. The plan covered all these lands indiscriminately; and, on paper, the streets, alleys, and other open grounds extended over much territory which the Governor and Judges had no poAver to dispose of— without reference to private claims. It is claimed, however, on behalf of the People, that Ave are bound to take judicial notice that no valid titles existed here, and that the Avhole domain Avas subject to the absolute disposal of the United States, Avho delegated, intentionally, to the Governor and Judges, complete power over it; and that, in making the plan, they were but carrying out this power. The jury, certainly, find no such facts. A review of the facts appearing from the public acts of the country Avill show whether the position taken is correct or not.
Detroit formed originally a part of the French possessions which were ceded to Great Britain by the Treaty of Paris of 1763, in Avhich provision .was made for the full protection of private rights and possessions. By the treaty of peace between the United States and Great Britain, made in 1783, it became a part of the possessions of the United States, and was included, by the Ordinances of 1787 and 1789, within the Northwest Territory. But it was, with the other posts in the northwest, retained by the British authorities until 1796, Avhen it was formally delivered up under Jay’s Treaty of 1794. By the latter treaty more full and specific protection was granted to the settlers in their rights to land, legal and possessory. By a technical interpretation, our Government might have avoided sustaining any but perfect titles; but the manifest injustice of such a course led to a more generous and humane interpretation. In 1802, an inquiry was set on foot by the United States, and Mr. Jouett,the Indian Agent, reported to the Government upon the subject. His report was-not based upon an actual and authorized investigation into each case, upon the documents, but it was the foundation of the subsequent action of Congress. ¥e do not here refer to its facts (although they were surprisingly accurate, considering the circumstances), for they could not be properly regarded in this controversy. In March, 1804 (2 St. U. S. 277), an act Avas passed requiring all persons claiming lands within the districts attached to the Land Offices at Detroit, Vincennes, and Kaskaskias, to exhibit their claims by virtue of any legal grant made by the French Government prior to the Treaty of Paris of 1763, or of any legal grant made by the British Government subsequently to that, and before the Treaty of 1783, or of any act or resolution of Congress after the Treaty of 1783. The Register and Receiver, as commissioners, were to record the evidence in each case, and to make separate reports — one of affirmed and another of rejected claims — with the evidence, and Avith any remarks thereoii which they might deem proper. In March, 1805 (2 St. IT. S. 344), the time for 'exhibiting claims Avas extended, and all persons were authorized to exhibit to the commissioners any claims, whether based on legal grants, actual possession and improvement, or for any •account whateoer. Similar reports Avere to be made of confirmed and rejected claims; and in all cases of rejected 'claims based on possession and improvement, they were particularly required to state the date and extent of the improvement, and the extent of land claimed, Avith its situation and boundaries. All lands so claimed, whether the claims were confirmed or rejected, Avere to be reserved from any disposition until the further action of Congress. In June, 1805, Detroit was burned. On the 21st of April, 1806, before Congress had acted on any of these claims, an act tvas passed, the first section of which is as follows:
“ JBe it enacted, Sc., That the Governor and the Judges of the Territory of Michigan shall be, and they, or any three of them, are hereby authorized to lay out a town, including the Avhole of the old toAvn of Detroit, and ten thousand acres adjacent, excepting such parts as the President of the United States shall direct to be reserved for the use of the Military Department, and shall hear, examine, and finally adjust all ’claims to lots therein, and give deeds for the same. And to every person, or the legal representative or representatives of every person who, not owning or professing allegiance to any foreign power, and being above the age of seventeen years, did, on the eleventh day of June, one thousand eight hundred and five, when the old town of'Detroit was burnt, own or inhabit a house in the same, there shall be granted by the Governor and Judges aforesaid, or any three of them, and where they shall judge most proper, a lot not exceeding the quantity of five thousand square feet.”
The second section directed the residue, after satisfying such claims, to be sold, and the proceeds appropriated to, build a court house and jail in Detroit; and the Governor and Judges were to report their doings to Congress.
On March 3d, 1807 (2 St. U. S. 437), an act was passed confirming all' the claims allowed by the commissioners. The act further provided that all possessory claims, original-, ing previous to July 1st, 1796, should be confirmed by anew board, appointed by the act, as estates in fee simple, if not exceeding six hundred and forty acres; and patents were to issue upon certificates granted by the commissioners. The same act declared “That the powers vested by this act in the commissioners above mentioned shall not extend to lots in the town of Detroit, the claims to which shall he ascertained and decided %ipon in the manner provided hy the act entitled “An Act to provide for the Adjustment of Titles of Land in the Town of Detroit, and Territory of Michigan, and for other pmposes.”
Some subsequent acts were passed, all aiming at securing the claims and equities of settlers, but which are not material to this inquiry.
Tt was claimed, on behalf of the People, that the only power, given to the Governor and Judges was to convey “lots” in such forms and dimensions as they should delineate them upon their plan, and with reference to the details of the plan. But the acts referred to, and the construction put upon them by the Supreme Court of the United States, as well as by this Court, will show that this ground is entirely untenable.
In the case of Forsyth v. Reynolds, 15 How. 358, Robert Forsyth claimed title to a lot in Peoria, under an act of Congress which confined the right to such lots to settlers who “had not heretofore received a confirmation of claim or donation of any tract of land, or village lot, from the United States.” It was shown that he had received confirmations of two claims in this county, above Detroit, under the act of March 3d, 1807, above referred to. The court held that; while that act pointed out the only means whereby he could 'obtain title, yet the grants under it were not ¿mere gratuities, but were made to carry out, in good faith, the equitable intentions of Jay’s Treaty; and that the benefits obtained by the United States from that treaty were the consideration upon which they were assured to the settlers. The court therefore decided that Forsyth was not cut off from the right to a lot in Peoria. This court, hi the case of May v. Specht, 1 Mich. 181, took a similar view of the act of 1801. See also, May v. Tillman, 1 Mich. 262.
The Governor and Judges had the same authority over every class of claims within the city of Detroit which the commissioners had on outside claims, with the additional right tad obligation to decide thereon finally,, and execute deeds without waiting for the action of Congress, or the Departments. We have not, nor has any other court, the power to go behind then conveyances, so long as they acted within the .jurisdiction vested in them by Congress. It is claimed, however, that the lots they were empowered to adjust and confirm tlie titles to, were to be such lots only as they should lay out On then plan. We think this is not a correct view of the act.
The act does indeed provide that certain persons should receive lots not exceeding five thousand square feet each; but these lots are mere donations, confined to actual residents, and citizens of the United States, who were burnt out by the fire, tad were intended in some measure as an indemnity for their losses and inconveniences. But the claims to be adjusted were such as any person, citizen or alien, had a legal title or equitable claim to, under the acts of Congress passed to protect ancient titles and settlements. Upon satisfactory proof, the Governor and Judges had no right whatever to deprive a claimant of any portion of the land actually belonging to him under those acts of Congress, whether it interfered with any projected plan or not. As we have already seen, Jefferson and Woodward Avenues had become legal highways by statute; and so far the claims might perhaps be interfered with, upon payment of damages, if required; but no power existed, without consent, to curtail the full rights of any one to his ancient possession. It may have been in the power of the board arbitrarily to refuse to confirm just claims, but such an act would have been a gross abuse; an/l the facts found in this case show that no, such tyrannical expedient was resorted to.
Instead, therefore, of assuming that the lands in Detroit Were vacant parts of the public domain, entirely subject to, the control of the Governor and Judges, we are forced to take notice that rights existed, both individual and public, which they were legally bound to, respect. And this fact, in our judgment, is entirely inconsistent with the idea that the adoption of the plan was intended by them to be a final and absolute act which could not be reviewed of explained, The very terms of the resolution adopting it, leave the door open to future modification. And any attempt on their part, by such action, to cut off or diminish the rights of claimants, would have been a clear infraction of duty. It was desirable, undoubtedly, for them to have some plan at once, in order-to lay out lots for donations to the sufferers by the fire, and who might not have claims under the general acts of Congress; and so far as claimants could be induced to accept new lots in exchange fpr then old ones, to adjust the claims in that way; but, until such claims were settled in one way or the other, and until the military reserves were all defined, it would be impossible to tell whether the lines of the plan could be adhered to or npt, The northern and eastern lines of this section were established already, but its interior arrangement was liable to modification by interfering claims and reserves. It would be going very'far to hold that when circumstances might render it necessary, on these accounts, to accommodate the plan to such contingencies, a board of plenary powers, under an act of Congress, should be ham-, pered by any narrow rule applicable between individuals ii\ the execution of common law powers, which might destroy the usefulness of their whole action. The act of Congress gives them a very broad discretion; and so long as their subsequent action should not interfere with vested rights of individuals, or of the municipality, we do not perceive how an original act, never intended as a finality, and which, if so intended, would, in great part, conflict with private estates as well as public reserves, can be properly regarded as unchangeable. The powers of the board must be so construed as to harmonize them, and not to make them conflict with each other.
The street in question, as laid down on the map, ran from Jefferson Avenue to the river, crossing Woodbridge street in the way. The plan does not show the supposed water line, not having been made by survey, but being a paper plan merely. In fact, the jury find that the water came nearly or quite up to Woodbridge street. The ease shows that all of the dry land embraced in the projected street, was private property. The Dodemead lot occupied the space between Jefferson Avenue and Woodbridge street, while, the Beard and Greeley claims appear to have been in that street, and to have reached its southern line, where the grant of 1811 commences. We can not suppose that the board intended or imagined that the platted street was to be then, or at any other time, a highway, until the land should be lawfully taken and paid for. The whole ease negatives any such idea. And the land was not theirs to dedicate.
But it appears that the city authorities have not been passive. In 1828, they disregarded the plan by opening a new street of forty-four feet in width, covering to that extent, and no further, the street projected; and did so under their authority to lay out streets through private property on payment of damages. This was a clear waiver of any rights in the premises under the plan, if such existed. This point was decided, under similar circumstances, in the case of Seaman v. Hickes, 8 Paige, 655.
And it is further to be observed that, by the City Charter of 1827, the corporation was expressly prohibited from opening any street under the plan, without previous notice, and was required when any claim of damage was set up by any person through or adjacent to whose premises such street would pass, to have his damages assessed and tendered, before any further stejj could be taken. — Laws of 1827, p. 578, §§ 18, 19. This law forbids the idea that any unopened street could be regarded as a highway, whether so intended in the first place or not.
Many other considerations worthy of attention were submitted to us, but as we were informed upon the argument that controversies have arisen concerning portions of the public grounds differently situated, we reserve any other points for examination when they may arise hereafter.
We are clearly of opinion that the defendant, upon the finding of the jury, is not guilty of any infringement of public right, and that judgment should be rendered in her favor upon the verdict.
The other Justices concurred. | [
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Martin Ch. J.:
The conveyances to Sally George were fraudulent and void, as against the complainant. That of the Hamtramck property was entirely without consideration, and appears to have been solicited by her, and procured for the support of herself and children, and under circumstances which, we think, show a purpose of keeping it from the reach of John George, then Paul J.’s creditor. That of the west half of lot 61, in Detroit, was alike voluntary, and, as is claimed, for the purpose of securing a homestead, except that a partial consideration — the sum of four hundred dollars — was paid by the wife 'to the husband at the time of its execution. However laudable it may be in the husband to make provision for the support of his wife and family — and it is certainly not mefely laudable, but a duty, when it can honestly be done — yet the law will not suffer it at the expense of creditors, when its operation is fraudulent, or when the design to defraud them is apparent.
As far as we can ascertain the facts from the pleadings and proofs, at the time these conveyances were made by the defendants to Train and Zender, Paul was indebted to John George, his brother, in about the sum of one thousand seven hundred dollars, and a most bitter hostility existed between them — so great, that no communication or conversation passed; an intensity of hatred, between brothers, that warrants and impels us to the conclusion that the conveyances were made for the purpose of placing the property beyond his reach. The value of the property, at this time, appears to have been about equal to the amount of the debt, and although the defendants insist, in their answers, that at that time Paul J. was not insolvent, and was indebted only to his brother, and to one or two others in small amounts, and had sufficient assets, open and visible, and within reach, to pay every creditor abundantly, without any reference to said real estate, yet this averment, although put in issue, Avas not substantiated by proof, nor Avas any offered to establish its truth. It was settled in this state, in Beach v. White, in accordance with the general rule of equity, that a deed which is fraudulent as to existing creditors, is fraudulent as to subsequent creditors. — See Walk. Ch. 496. To this rule there may be exceptions, as when the debt sought to be collected was contracted long after the fraudulent conveyance, or after the embarrassment which existed when it was executed had passed aAvay, or a new embarrassment had occurred from subsequent causes, and the like; but the present case comes within none of the exceptions.
It is true that voluntary conveyances’ are not necessarily fraudulent, even when made by a person indebted at the time. A man always has the right to dispose of his property as suits himself, provided he acts in good faith. But if he is largely indebted at the time, and such conveyance embraces the larger, or any considerable, portion of his property, such conveyance will be deemed fraudulent as to creditors. It is good when made without any fraudulent intent, and by a person not indebted at the time, or, if indebted, whose debts are so small in amount, when compared Avith the means still retained by him to pay them, as to repel all presumption of fraud on their account. — See Beach v. White, Walk. Ch. 496; Cutter v. Griswold, Ibid. 437.
In March, 1852, we find that a reconciliation took place between John and Paul George, and then deeds passed between them, concerning the property in question, and John conveyed to Paul the lands which in August before he had conveyed to Train and Zender, from whom Sally George derives her title. The deed from Train to her of the Hamtramck property was executed in August, 1851, and that from Zender in July, 1852. Shortly after this deed of July, 1852, we find Paul George expanding his business, and becoming suddenly and very heavily indebted to various houses in New York, and, among others, to this complainant, in some one thousand nine hundred dollars; and we find that at the time he contracted these debts, he represented himself to be the owner of the very property in question, for he could have referred to no other. This expansion of business was followed in less than six months by his mortgaging this very property, but without his wife joining, to John George, for the indebtedness which existed when the deeds to Train and Zender were executed, and which now amounted to one thousand seven hundred and eighty dollars, and by his making a general assignment of his property for the benefit of his creditors. His debts at this time amounted to nearly ten thousand dollars, besides that owing to John, and the nominal value of his assets to only about four thousand, while their real value turned out to be only about four hundred or five hundred dollars. These things are entirely unexplained, and taken in connection with the other facts of the case, manifest, beyond question, that Paul .George meditated fraud, whether his wife was cognizant of it or not. Certainly if there is any case where a voluntary conveyance, and a cotemporary indebtedness of the grantor, make out a prima facie ease for the creditor, this is that case; and it was the duty of the defendants, if they would prevent its becoming conclusive upon them, to have rebutted it by showing that the pecuniary circumstances of the grantor at the time were such as to repel the presumption of fraud.
The conveyance of the Hamtramck property can not, then, for a moment, be sustained. But it is thought that that of the west half of lot 61, in Detroit, stands upon a different footing. It seems that four hundred dollars of money belonging to Sally George was given to Paul upon its execution; but it is not claimed that this was all, nor the material consideration which produced the conveyance to her. The real reason appears to have been, as now claimed in the answers, to secure it as a homestead. So far as relates to the four hundred dollars, the property is shown to have been worth at the time some one thousand five hundred to one thousand eight hundred dollars. This inadequate consideration, under the circumstances, will not sustain the deed as against creditors, although it will sustain it for her protection, so far as to secure to her the re-payment of that sum. The reason, or rather the pretence, that the property was conveyed to the wife to secure a homestead, can be of little value to determine the object of these conveyances to be bona fide, when we find that, as a part of the same transaction, although consummated at a different time, the Hamtramck property was conveyed without consideration and without explanation, and that, immediately subsequent, this sudden expansion of his business occurred, which as suddenly and disastrously collapsed. Why should this attempt to secure this Detroit property as a homestead be first made at the particular juncture of Paul’s quarrel with John, and be consummated just before this expansion of his business, and the contracting of these ^debts?
But if the reasons be true, the claim of the property as a homestead, securedj by this | conveyance, can not avail these defendants. The law was never intended to be executed by parties in this manner. A homestead not to exceed forty acres, or a city or village lot not to exceed in value one thousand five hundred dollars, is exempt from execution; but such exemption must be claimed, and this value ascertained, at the time of the levy, or at least after it, and before sale. To hold that such exemption can be claimed at any other time, or in any other manner, than such as is contemplated by the statute, would open the door to the most monstrous frauds. If the claim can be made months and years before a levy, and if the value at the time of the claim is to determine its value at the time of the levy, thousands of dollars may thereby, through rise in value, and the squandering of money in improvements and ornaments, be sealed up beyond the reach of creditors. The law never intended such a result.
But a homestead can not be secured by alienation of the property. No one but the debtor can claim it, — his grantee can not. If it was her property, it was not liable to be taken on- execution for his debts; if it was not, her pretended title can be of no avail to him for the purposes of exemption. As owner, she can not claim it to be under the Exemption Act, against his debts — having conveyed it, the title is good as between him and her, although void as to creditors; and he can not claim it as exempt, for no title remains in him upon which to base such a claim. — See Wisner v. Farnham, 2 Mich. 472.
The decree of the court below must be affirmed, with costs.
Manning J. concurred. | [
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Manning J.:
A motion is made in this case to dismiss the appeal on the ground that the decree appealed from is not a final decree. Our attention was called by opposing counsel to the phraseology of the statute, which allows an appeal from “the decree or final order” — the word “final” being nsed in connection with “order,” and not “decree.” All decrees are, like judgments at law, either interlocutory or final; the latter when they are the final determination of the court on the rights of the parties, and the former when they are auxiliary only to the final determination. And when the Avord decree alone is used in a statute, we think it is to he understood to mean a final decree, unless there be some thing in the context showing an interlocutory as well as a final decree is intended. The universal understanding — one that has been acted on by both the bench and bar — we believe, has been that a final decree only could be appealed from; and such, we think, is the true construction 'of the statute.
The decree, after stating a cevtain contract between the parties should be specifically performed by defendants, directs a reference to take proof of damages, alleged in the bill to have been sustained by complainant, and of the* sale and conversion by defendants of certain real and personal property. It then directs the officer to report such proofs, with the sums that defendants are to be charged with, and that he also compute the amount of payments made to defendants by complainant under the contract, and report the amount due to defendants from complainant under the contract, after deducting such payments and damages. And in case a balance should be found due to defendants, or either of them, on complainant making a tender to them of such balance, they are required to convey the premises described in the contract to complainant. Such a decree is clearly interlocutory and not final. No decree, we think, is final that directs a reference to a master, or other officer, to do What the court, but for its power to make such reference, would itself have to do before it could decide the case. Such references are made, not in execution of the decree, but to relieve the court of what it would otherwise have to do itself. The acts and doings of the master in all such cases ■are in them nature judicial, and not ministerial, and, to be effectual, must be confirmed by the court, when they become the acts of the court itself.
There appears to be some little confusion in tbe oases as, to what is a final decree, which we are disposed to attribute to the fact, that the court, in some few of the cases,, does not seem to distinguish between directions given for-the execution of a final decree, as in mortgage sales, and' references that are preparatory to a final decision upon the-merits. A decree with such a reference can, with no more, propriety, he called a final decree, than a judgment at, law with a reference to a clerk or a jury to assess damages,, can be called a final judgment.
Christiancy and Campbell JJ. concurred. Martin Ch.. J. did not sit in this cause, having decided the case in the, court below.
The same motion was made in the case of Angeline G. Moore v. Charles Olin, from Calhoun Circuit, and was disposed of at the same time, in the same way. The hill in that case was filed hy complainant against her lato guardian to set aside certain deeds and a lease made hy her to him, to declare void a receipt which she had given him, and for an account, &c. The decree declared the de^ds void, except that, under the circumstances of the case, they should stand as security for any amount that should he found due the defendant from complainant on accounting — it declared the lease and receipt void, and referred the cause to the circuit court commissioner for Calhoun county to take an account between the parties, with specific directions in respect to such account, and to report thereon. And all questions of costs, as well as all further directions, were reserved until the coming in of the commissioner’s report.
G. V. JZ. Lothrop, for appellee.
O. I. Walker, for appellant.
The case of John W. Turner v. Olivers S. Chapman and Others, dismissed a few days earlier, was an appeal from a decroo, made on hill filed for the specific perform-., anee of a contract for the conveyance of-lands. The decree was that complainant is entitled to a specific performance, and that it he referred to a circuit court com-., missioner to ascertain if defendants can. make good title to the promises in ques».. tion, and to report thereon, and also to, report the amount due from complainant on the agreement; and that the question of costs and all other directions ho rev served until the coming in of his report,.
J. G. Sutherland, for appellee.
A. Gould, for appellants.
The following, in addition to those cited-on the argument, are cases in which courts, have discussed the question, What is a final decree? Craighead v. Wilson, 18. How. 199; Gudgell v. Mead, 8 Mo. 53; Young v. Skipwith, 2 Wash. 300; Williams v. Field, 2 Wis. 421; McMurtry v. Glascock, 20 Mo. 432; Choteau v. Rice 1 Minn. 24. | [
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Martin Ch. J.:
There is no evidence in this case elearly establishing the fact that Job Tyler ever gave, or agreed to convey, the property in question to Ms son De Witt. That he sold it, there is no pretence. As against the widow and heirs •of Job Tyler, a decree for a conveyance would be made •only on the most conclusive proof of the gift, and of some satisfactory reason why it was not consummated by a conveyance, even if upon the case made by the bill relief would, in any case, be granted. The statements of Job Tyler which are relied upon to sustain the complainants’ case, are loose, indefinite statements, that he had given the land to his son; in one instance made to. a creditor of that son, who was evidently pressing the father to pay the son’s debt; in another, it is accompanied with no evidence explanatory of the occasion of the statement, or of the conversation preceding or following it, from which its full import can be gathered. The evidence of Bonham is the most direct and satisfactory of any, but even this shows no contract or agreement- — -nothing but an unexecuted intention. The statements of De Witt can no more be considered in behalf of the complainants, than they could in his own -behalf, were he living, and seeking the conveyance. Nor do we think his occupancy of the land, and labor performed upon it, any part performance, or regard them as proof of delivery of possession, or of expenses incurred upon the faith of any agreement or offer respecting the land. Their relation of father and son explains this more satisfactorily than the evidence does the complainants’ claim. As against Hecox, the mortgagee of these premises, neither the facts, nor the consideration, if the gift were proven, would authorize a decree. ' — See Wilson v. Wilson, ante p. 9.
There was therefore no error in the decree of the court below, and it must be affirmed with costs.
The other Justices concurred. | [
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Christiancy J.:
The first error relied upon in this case presents the question, 1st. Whether, under the general issue, without notice, it was competent for the defendant to introduce in evidence the writs of attachment, with the affidavits annexed; and if not, 2d. Whether the notice which accompanied the plea was sufficient to authorize the evidence in question.
It is contended by the counsel for the defendant that, as the defense set up in the notice denied both the property and the possession of the plaintiff, it was admissible under the general issue without notice. Doubtless this defense did amount to the general issue, without reference to the writs of attachment; and, if found for the defendant, would render the writs entirely immaterial. But the proposition— that the writs were therefore admissible under the g’eneral issue — is circular, and its orbit and its fallacy may be readily demonstrated: Thus, if to authorize the evidence, it be necessary to look to the defense set up in the notice, then the notice itself must be necessary. The question whether the proposed evidence was admissible under the general issue, without notice, is not to be determined by the defense set up in the notice, but by the nature of the evidence proposed — in all respects, as if no notice had been given.
It is well settled that, at common law, a justification of this kind, in an action of trespass, must be pleaded specially; and by the practice before the statute, notice of it must have been given; and the statute (Gomp. Tj. ch. 124, §24) requires a notice in all cases where a special plea or notice would have been required before. It is therefore clear that the proposed evidence was not admissible under the general issue, without notice.
. But, 2d. Was the notice sufficient to warrant its introduction ?
The only objection to the sufficiency of the notice in this respect is, that it did not mention the affidavits required by law to be annexed, and which, in this case, wore annexed, to the writs. And it is contended that, as the writs could be no justification without the affidavits, these were just as essential as the writs, and notice of them should have been given, to warrant their introduction, or that of the writs themselves.
The rule generally laid down as a test of the sufficiency of a notice under the general issue has been, that the notice should contain all that would be necessary to sustain a special plea on general demurrer; and such was the rule laid down by the Supreme Court of this state in Thompson v. Bowers, 1 Doug. Mich. 321. But this decision was not made under a statute like that applicable to the present case; and most of the decisions cited by counsel in support of the rule, were under statutes, or rules of practice, differing somewhat from our present statute upon the subject. This statute, after having expressly abolished all special pleas in bar, enacts, that, to entitle a defendant to avail himself of such matter of defense, he “shall annex to his plea of the general issue a notice to the plaintiff, briefly stating the precise nature of such matter of defense.”
The objects of a special plea were twofold: 1st. To apprise the plaintiff of the nature of the defense relied upon, so that he might be prepared to meet it, and to avoid surprise on the trial; and, 2d. That an issue of fact might be formed upon it, or groAving out of it, if the plaintiff chose to do so; or of law, if he chose to admit its truth by demurrer; and, as judgment on demurrer must be a judgment upon facts admitted on the record, by the parties in their pleadings, it was necessary the matters of fact should be set out Avith such certainty as to enable the court to decide without the necessity of finding, or supplying by intendment, facts not necessarily included in those thus admitted.
But the Legislature, in abolishing special pleas, have entirely dispensed with this last object of such pleas, requiring by the notice only the first, viz. that the plaintiff, by the notice, shall be apprised of “the nature of such matter of defense,” that he may not be taken by surprise on the trial, by a defense Avhich he could not with reasonable certainty anticipate.
No issue is formed upon the notice; the only issue in the case is the general issue. The notice is of matters intended to be introduced under that issue.
Such being the only object of the notice, its sufficiency ought to be tested solely with reference to that object, rather than by reference to rules applicable to a demurrer to a special plea. The test of a general demurrer, it is true, may, and in most cases probably would, produce the same result (as it certainly did in Thompson v. Towers), but not necessarily in all cases; and as in principle it is not the true test, we think it can not be allowed to prevail where it comes in conflict with the test above indicated.
Did, then, the notice in this case sufficiently indicate the nature of the intended defense ? Did it apprise the plaintiff, with reasonable certainty, that the affidavits annexed to the writs would be offered in evidence? and was the plaintiff likely in any way to be misled by the omission to mention them in the notice?
"We think he was notified with reasonable certainty, and that he could not have been surprised by this omission. It is true defendant justified the taking under the writ, as he must, and not under the affidavits. But the notice of the writs, and the justification under them, ought, we think, for all purposes of such notice, to be held notice of every thing necessary to make them writs of attachment; and without the affidavits made on the same day, and substantially contemporaneous with the writs, the writs would have been waste paper; they would have been in no sense writs of attachment.— See Buckley v. Lowry, 2 Mich. 418. When, therefore, the plaintiff received notice that the writs of attachment would be offered in justification, he must have anticipated the affidavits also, without which the writs could have no existence. To hold otherwise would be adopting a degree of technical nicety, calculated to defeat, rather than to promote, the ends of justice.
The second error relied upon is, that the witness Gil kinson ivas allowed to testify to the statements made by business men of Penn Yan, in reference to the responsibility of Bosenbury, the plaintiff.
We judge from the case, though it is not very clearly stated, that the property in question in the suit was a stock of goods formerly owned by a merchant, Wilber, who had failed, and assigned them to the plaintiff: That the creditors claimed the assignment to be fraudulent, and sought to show that the plaintiff was a man of no pecuniary responsibility, as a circumstance going to prove the fraudulent intent of the assignment. The witness G-ilkinson, who was a partner of a firm who were attaching- creditors, having testified that, in a conversation he had with plaintiff after the assignment, the plaintiff referred him to business men in the village of Penn Yan, in the state of New York, to ascertain in regard to his pecuniary responsibility, was then asked by defendant, whether he afterwards made inquiries of such business men in Penn Yan, concerning- the plaintiff’s responsibility, and, if so, what he there learned?
To this the plaintiff objected, but the court admitted the evidence, and allowed the witness to testify generally, as to what business men in Penn Yan had told him in reference to the plaintiff’s former history and pecuniary responsibility.
It will be noticed, from, this statement, that the assign, ment had already been made to the plaintiff; that his rights to the property, whatever they were, had already attached, and that there is nothing in testimony from which the slightest inference can be drawn that the plaintiff, when he referred the witness to the business men of Penn Yan, proposed or intended, or led the witness to suppose he intended, to make his rights to the property in any respect dependent upon the result of the reference; or that he thereby intended to make, or had made, the business men of a considerable commercial town, without distinction, his agents or referees, with authority to determine his rights, or to speak for him; or that any result was proposed by the reference: the contrary intent is to be inferred from the whole transaction. Under these circumstances, we can discover no principle upon which the evidence could be admitted, without throwing open the door to mere hearsay evidence generally.
It is true there are some English nisi prius eases which go far towards sustaining the admission of evidence of this kind, though not, we think, far enough to sustain it in the case before us. And Mr. Greenleaf, Yol. 1, §182, under the head of- Admissions, relying upon those cases, lays it down as a rule that “the admissions of a third person” are receivable in Evidence against a party who has expressly referred another to. him for information in regard to an uncertain or disputed matter. “In such cases” (he says) “the party is bound by the declarations of the person referred to, in the same manner, and to the same extent, as if they were made by himself.” It is observable here that Mr. Greenleaf entirely ignores the' idea of any agency of the party referred to, and yet he calls the declarations of the persons referred to “the admissions of third persons.” Now, this term “admissions,” in such a connection, would seem to imply that the person making the admissions must stand in some confidential relation to, or be interested for, or represent the interest of, the party making the reference; — in short, to have authority, in the nature of an agency, to speak for the party making the reference. Upon any other hypothesis, it would seem to be a confusion of ideas to call the declarations of such third person his admissions, or the admissions of the party.referring to him.
Mr. Greenleaf seems to have been led into this loose mode of expressing the rule, by a supposed necessity of laying down the rule broadly enough to include all the nisi prius decisions to which he'refers, without first determining the question whether all those cases could be reconciled with well established principles of the law of evidence.
The cases of Daniel v. Pitt, 1 Camp. 366, note (6 Esp. 74, S. C.); Burt v. Palmer, 5 Esp. 145; and Hood v. Reeve, 3 C. & P. 532, to which, he refers, fall clearly within the principle of Agency; and the terms in which the references were made, show, beyond doubt, that the person referred to had authority to speak for the party, and his intention to be bound by the result.
In the case of Hurt v. Palmer, Lord Ellenborough states the true principle of the rule with great clearness, that the statement of the person referred to was admissible, “his agency haying been clearly made out and established.” He referilioLihe. trial of Hastings for the rule, saying it had been there solemnly decided by the twelve judges, “that when a person is referred to, to settle and adjust any account or business, what he says, if jit is connected wi>St the account or business which is'‘referiédAt© him, is evidence. “That (said his Lordship) was the case here; and Allen’s admission of the debt is binding on the defendant.”
Now, this is clear and intelligible; it is both good sense and sound la'w.
But in the subsequent case of Williams v. Innes, 1 Camp. 364, decided four years after (cited by Mr. Green-leaf), his Lordship, if we can rely upon the reports, seems to have mistaken, or more probably forgotten, the rule so clearly laid down by himself in Burt v. Palmer, as the rule established in the Hastings case, and, what was very unusual with that eminent judge, to have used language so loose and indefinite that it can only be attributed to the haste of a trial at the circuit. Thus he says: “If a man refers another, upon any particular business, to a third person, he is bound by what this third person says or does concerning it as much as if that had been said or done by himself. This was agreed to be law, by all the judges, on the trial of Mr. Hastings.’) It would seem, from this language, that his Lordship spoke from memory, and that his memory was at fault, or the rule in the Hastings case is capable of assuming very elastic proportions. Here the whole element of agency — the only element which can sustain that rule — seems to be inadvertently overlooked; and a rule is. laid down which will in all cases bind parties by the declarations of any third person to whom any man may refer another for mere inquiry, though the party referring had no idea or intention of giving to such third person any authority to speak for him, or of being bound by his declarations; and the person referred to had no reason to suppose any such intention.
Such a rule would operate as a trap upon parties, and render it wholly unsafe for a man ignorant of, any facts or transaction in which he might be honestly desiring to put his neighbor in the way of ascertaining them, to advise him to inquire of any third person whoii^he might supposeUQpuldn explain it. It would put an end to all honest Hwe^wuimqunies of this kind. Such can not be the law. The learned reporter adds a very significant note to this case of Williams v. Innes: that, “upon the recommendation of the Chief Justice, the case was after-wards compromised”; yet it might admit of a question whether the facts of the case did not bring it within the principle of agency; which, however, is not alluded to, and it would seem to require something more than is stated in the report to bring it fairly within the principle.
The case of Brock v. Kent, 1 Camp. 366, note, as there reported, is doubtless a clear departure from the principle of agency recognized in the Hastings case, and in Burt v. Palmer; and we can discover no ground upon which it can be maintained, without opening the door to the greatest abuse, and the most dangerous species of evidence. Whether this case was also compromised, does not appear. But neither of these cases ever reached the court in bank; nor, as far as we can discover, has any English court, sitting in bank, ever recognized the principle said to have been decided in these cases; and they do not appear to be recognized as law in England to the extent here claimed for them. Thus Mr. Phillips, in his excellent work on Evi dence, Vol. 1, p. 517 (4 Am. Ed., by Edwards), states the rule in question under the head of Agency, and places it upon that ground. I quote his statement of the rule: “So if one party refers another, on a disputed fact, to a third person, as authorized to answer for him, he is bound by what his referee answers upon the occasion, as much as if the answer had been given by himself.” Here is the rule, with the reason for it; and we think it entirely correct; but the rule thus stated will exclude the declarations of the business men of Penn Yan, admitted in the case before u$,
"Indeed, there is no case, not even that of Williams v. Innes, nor Brock v. Kent, which would authorize the declarations given in evidence here; as in those cases the reference was to a single individual by name; and there is not in such case any palpable absurdity in supposing the possibility of an intention to make him the agent of the party making the reference. But where the reference is made to all the business men of a commercial town of several thousand inhabitants, without distinction of name or character, the idea of agency becomes too extravagant to be reconciled with the theory of sanity in the party making the reference.
There may be cases in which the circumstances, and the mode of reference, may be such as to make it a question of fact for a jury, under the charge of the court, to determine whether the reference was' intended to make the third person an agent, with authority to speak for the party; but where, as in this case, the court can clearly see that there is no ground for such an inference, the declarations can not be admitted on this ground.
I have purposely omitted to speak of this case on the theory of a reference to arbitrators; because, as there is no pretence here that both parties proposed to be bound by the decision, it can not stand upon any such ground, as distinct from that of agency. In fact, the English authorities, and Mr. Phillips, following those authorities, treat the decisions of arbitrators as falling within the principle of agency (Phillips J3v. Pol. 1, p. 517, above cited); and this is recognised in many American authorities; and, upon final analysis, the decisions of arbitrators, voluntarily chosen, would seem to rest upon this ground. I have also purposely omitted to notice that class of cases where a party has agreed to be bound by the oath of the opposite party, or of a third person, because these cases stand upon different principles, as will be seen by the case of Brooks v. Ball, 18 Johns. 337, and cases there cited.
There are two American cases (and perhaps other) decided since the publication of Mr. Greenleaf’s work, in which the rule laid down by him. in section 182, above cited, is quoted with approbation. I refer to Chapman v. Twitchell, 37 Me. 59; and Chadsey v. Greene, 24 Conn. 562. But the reference in both these cases brought them clearly within the principle of agency, and showed a clear intent to authorize the person referred to to speak for the party making the reference (and, in the latter case, it would have operated as a fraud upon the opposite party to have held otherwise) The courts were not, therefore, called upon to examine the basis of the rule as laid down by Mr. Greenleaf. There are two American
The judgment in this case must be reversed, and a new trial granted.
Martin Ch. J. and Manning J. concurred. Campbell J. did not sit, having been of counsel in the cause. | [
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The Chief Justice:
We think the plaintiff too late with his motion. He appears to have known that the case was filed here soon after that was done, and no reason is given why the motion was not made earlier. | [
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Martin Ch. J. :
We think the Recorder erred in excluding the evidence offered by the defendant.
The indictment charges that on the 11th of December, 1858, he, by means of false pretences, obtained the en dorsement of Strong to a note of one hundred and fifty dollars made by himself. The statute under which the indictment was found provides that “ every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretence, obtain the signature of any person to any written instru, ment, the making- whereof would be punishable as forgery, or obtain from any person any money, personal property or valuable thing, shall be punished,” &c. — 2 Comp. I. §5183.
The object of the defense in this case, in offering the rejected evidence, was to show that there was no intent to cheat or defraud — the untruth of the pretence being admitted. A falsehood does not necessarily imply an intent to defraud, for it may be uttered to secure a right, and, however much and severely it may be reprobated in ethics, the law does not assume to punish moral delinquencies as such. To defraud is to deprive another of a right, of property or of money, and this may be accomplished by falsehood, by withholding the right or property, or by force. In the present case, the prosecutor insists that he was defrauded because he was induced to endorse a note by the false representation of the defendant that a prior note for the same amount, endorsed by him, was defective, and had been destroyed; that he was thereby induced to lend his name for double the amount he otherwise would. The simple fact of procuring by falsehood the endorsement, was not an offense within the statute; it must have been" procured with the intent to defraud, and, where an intent is made the gist of an offense, that intent must be shown by such evidence as, uncontradicted, will fairly authorise it to be presumed beyond a reasonable doubt. It is true that a man is presumed to intend the natural consequences of his acts, but, under this statute, it is not the consequence but the intention, which fixes the crime. There are no natural consequences, strictly speaking, to this act. It is itself an indifferent act, as the consequences will depend upon what he does with the paper, and this will depend upon his will — in other words, his intent. It was, therefore, necessary for the prosecutor to show something more than the application, the falsehood, and the endorsement, before he could ask a conviction; he should have shown those facts which, in the absence of all other proof, would warrant the jury in finding an intent to defraud; unless such intent is fairly to be inferred from the circumstances attending the act itself. If the fact of negotiating both notes would justify such a finding, yet the presumption thus raised might be repelled by the defendant, by exhibiting in evidence such a state of facts as would show that fraud was not designed, or could not have resulted. This he attempted to do by showing the relations of himself and Strong, the obligation Of Strong to endorse his paper,' his refusal to do so notwithstanding his contract, the necessity for the money for their joint benefit, and the appropriation of the avails of the note in their business, and according to the terms of their agreement. All this was refused, and the evidence offered for that purpose ruled out.
We think this evidence would legitimately tend to disprove the presumption of an intent to defraud, and should have been allowed to go to the jury to enable them to determine quo animo the endorsement was procured.
These considerations render an examination of the other errors assigned unnecessary.
A new trial should be granted.
Christiancy and Campbell JJ. concurred.
Manning J.:
When, by false pretences, the signature of a person is obtained to a written instrument, where the signing of the name by a third person to such instrument would be punishable as forgery, the law implies an intent to cheat or defraud; and nothing more need be shown to warrant a conviction. But the fraudulent intent implied from the act itself is not conclusive on the party. He may show there was in fact no intention to defraud.
The Recorder seems to have erred in supposing the implication of law was conclusive, and not prima facie evidence only, of the criminal intent. In this I think he erred.
New trial ordered. | [
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The Chief Justice:
The statute (Gomp. L. §5113) .is imperative that the jury in their verdict, or the Court on plea of guilty, shall determine the degree of the crime. The judgment must be reversed.
See the following authorities cited in the brief of counsel for plaintiff in error: People v. Potter, 5 Mich. l; Dick ®. State» 8 O, S, R. 89; Parks -y. State, Ibid. 101; Jolmson ¶. State, 17 Ala. 618; Kirby n. State, 7 Yerg. 259; dobia v. State, 16 Ala, 781; jState v. Dowd, 19 dorm. 889; McGee u State, 8 Mo. 495; State v. Upton, 20 Mo, 897; Mcdarvley v. Urvited States, 1 Morris 486. | [
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Campbell J.:
A motion is made for leave to file, and make part of the return in this cause, a corrected copy of the original bill of exceptions. The motion is opposed for several reasons, based on the insufficiency of the showing and the improper form of the application.
The writ of error was issued more than a year ago, and was returned at the January term in Lansing. This is the third term since the return was made, and error was assigned and joinder filed without any reference to the alleged imperfections of the return. No excuse or reason is shown for the delay in making the application. Without some ex> planation, we should not feel disj>osed to interfere, if the power were unquestioned.
But we have repeatedly held that we have no power to look behind the record transmitted to this court from the¡ circuit court, to amend or alter it. If complaint is made that the transcript is incorrect, all that we can do is to require, upon a proper showing, that the court below make full return according to the facts. We can not regard any matter as part of the record which is not sent up to us in the proper manner from the court below. In this case, upon an application made in due season, we should have required the original bill of exceptions to have been returned; as that, and not a copy, should in all cases be returned with the record. But, inasmuch as no showing has been made explaining the delay, and the parties have thus far dig’ regarded the error of the clerk, we are not disposed to interfere.
The motion must be denied.
Manning and Christiancy JJ. concurred. -Martin Ck. J. was absent.
See Sweetzer v. Mead, 5 Mich. 33 ; Scribner v. Gay, Ibid. 511. | [
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Campbell J.:
The construction of the contract between the plaintiff and the firm of .Jenny & Pheljjs is the only matter necessary to be determined. It is very clear that Jenny & Phelps had, under that agreement, no proprietary interest in the logs or lumber. They had no claim of property except in the proceeds after sale. And, being mere agents of Bassett, with an interest which could never attach, even to the proceeds, until they should have completed their labor on the lumber, and made sales, it becomes entirely unnecessary to decide Avhat rights of possession they might have had against Bassett himself, to ensure the completion of their work. Being placed in a position which prevents them from completing it, the contract is, as to these logs, terminated, and Bassett is therefore entitled to recover them. The special purpose for which Jenny & Phelps received them was entirely defeated by the seizure on execution, which made it impossible for them to regain possession, and consequently deprived them of the power to complete the manufacture and sale of the lumber.
It must be certified to the Circuit Court for the county of St. Clair, as the opinion of this Court, that the plaintiff had such a right of possession as entitled him to recover in the action.
The other Justices concurred. | [
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Manning J.:
Martin & Townsend, and one Ten Eyck, since deceased, on the 80th October, 1852, filed a bill in the circuit court of Wayne county to foreclose a mortgage, executed to the Farmers’ & Mechanics’ Bank by McReynolds and O’Flynn, and assigned by the bank to complainants. On the 1st of June, 1855, a petition was presented to the court by Martin & Townsend, stating the death of Ten Eyck after the filing of the bill, and that the cause of action survived to them, and praying an order allowing- the suit to proceed in their names as survivors; which was granted by the court. Three days thereafter they filed an amended bill, in which Long, Campbell, McKinney^ Halpin, Gray, and Probart, the other defendants, were made parties as subsequent purchasers or incumbrancers. On the 3d September following, an order was entered by complainants, dismissing- the bill as to McKinney, and taking it as confessed ag-ainst all of the other defendants, except O’Flynn who had appeared and filed a demurrer to the bill on the 3d August. The demurrer, was brought to a hearing in October, 1857, when an order was made overruling the demurrer, and taking the bill as confessed by O’Flynn, and directing a reference to ascertain the amount due complainants on the bond and mortgage; and on the coming- in and confirmation of the report of the circuit court commissioner, the usual decree was entered, from which O’Flynn appealed to this court, and now asks a reversal of the decree on several' grounds:
1st, That the personal representative of Ten Eyck was not made a party. The interest of the assignees in the bond and mortgage was the interest the bank had. In other words, they stood in the position of mortgagees, and on the death of Ten Eyck, his interest in the mortgage, as well as in the debt, survived to complainants. Mortgages are, in express terms, excepted in the statute requiring grants to two or more persons to be construed to create estates in common. — Comp. L. §§ 2628, 2629. Hence in Cote v. Dequindre, Walk Ch. 64, it was held a bill might be filed by a surviving mortgagee to foreclose a mortgage without making the personal representative of a deceased co-mortgagee a party. In Vickers v. Cowell, 1 Beav. 529, the personal representative was held to be a necessary party, as he would, in equity, be entitled to the decedent’s share of the debt, when collected. The reason given for the decision is true in point of fact, but the consequence deduced from it does not follow. When the object of the bill, as in that case and the one in Walker, and as in the case before us, is to obtain possession of tbe trust property by the trustee, to enable him to execute the trust, and the rights of the cestui que trust are in no way to be affected by the suit, he need not be made a party.— Sill v. Ketchum, Harr. Ch. 423; Cook v. Wheeler, Harr. Ch. 448; Morey v. Forsyth, Walk. Ch. 465. Sill v. Ketchum was a bill filed by Sill to foreclose a mortgage assigned to him in trust for third persons, who, it was objected, should be made parties. Chancellor Farnsworth overruled the objection, and sustained the bill.
2d. That the assignment, as stated in the bill, does not show a legal title to the mortgage in the assignees; that is, does not show such an assignment as would authorize them to quit-claim the mortgaged premises, or discharge the mortgage of record. An assignment must be recorded before steps can be taken by an assignee to foreclose a mortgage at law, by advertisement, under a power of sale contained in the mortgage.— Comp. L. §5178. But it is not necessary to a foreclosure in chancery. A bill may be filed to foreclose a mortgage by one having an equitable right to it only. A debt secured by a mortgage, when assigned, carries with it, in equity, the mortgage as an incident to the debt, and the assignee may file a bill to foreclose the mortgage. — Green v. Hart, 1 Johns, 586; Patterson v. Hull, 9 Cow. 747; Cooper v. Ulman, Walk. Ch. 251. In such, and the like cases, the mortgagee, or person holding the legal right to the mortgage, should be a party, that there may be some one before the court to release the mortgaged premises, or discharge the mortgage of record, on payment of the debt by the mortgagor. The amended bill states, that on the first of April, 1852, the bond and mortgage were “ duly sold, assigned, and set over by the said mortgagees ” to complainants, and Ten Eyck, who died after the filing of the original bill, &e., and that complainants are “the owners and holders thereof, and entitled to have and receive all moneys due thereon, as by reference to an instrument of assignment under the corporate seal of the said corporation, and now in the possession of your ora/ tors,” will fully appear. In stating an assignment, it is sufficient to set it forth according to its legal import and effect, without reference to its form or phraseology. By the words, duly sold, assigned, and set over by an instrument of assignment under the corporate seal of the said corporation, we understand a legal assignment and transfer at law, of all the rights of the bank, to the assignees.
3d. That the bill should not have been dismissed as to McKirihey. It does not appear McKinney, in fact, had any interest whatever in the mortgaged premises. He was not a party to the original bill, but, with a number of others, was made a party to the amended bill, as having, or claiming to have, some right in the mortgaged property as subsequent purchaser, incumbrancer, or otherwise. Complainants may have afterwards discovered he had no claim whatever, and for that reason dismissed the bill as to him. However that may be, we do not see how the appellant is to be injured by it, or what right he has to complain.
4th. That the bill does not state what amount was due when the suit was commenced. It is usual^ after setting forth the mortgage, and bond or note, if there be one accompanying it, to state the mortgage money is due and unpaid, or, if the whole is not due, the part that is, and the payments that have been made, if any. A bill would be demurrable that did not state something was due, or unpaid, although it might appear from the bill the whole, or a part, of the mortgage money had become due; for the law presumes every man has done his duty, and on that raises a presumption of payment, unless the contrary is shown. — Bailey v. Gould, Walk. Ch. 478. The bill states, that “there is now due and unpaid on the said bond, and said indenture of mortgage, more than the sum of one hundred dollars.” If this was all, we are inclined to think the demurrer should have been allowed for uncertainty in the averment. The amount claimed to be due and unpaid should be stated, that defendant, on reading the bill, may know whether it is necessary to appear and answer, to protect himself against an unjust demand. Th,at, however, is certain which is capable of being reduced to a certainty; and, a little lower down in the bill, it is stated “no proceedings at law have been had for the recovery or collection of the debt, or money secured to be paid by the said bond and indenture of mortgage, or for the collection of any part thereof; and that the said debt or moneys, and no part thereof, have been collected or paiüP Here is a clear and positive allegation that no part of the debt secured by the bond and mortgage has been collected or paid.
From previous statements in the bill, it appears the bond and mortgage were given on the 15th October, 1851, for the payment of $1912.’IS, one half in one year, and the other in two years, with interest payable semi-annually. The bill was filed 80th October, 1852. From these data, the amount due and unpaid when the suit was commenced can readily be ascertained.
5th. The next and last objection is that the case was heard on the commissioner’s report, and a decree entered, without any notice of the hearing to appellant.
This was clearly irregular, and on a proper application to the court below, appellant would have been entitled to have the decree set aside, on that ground alone; but it is not a sufficient reason for reversing the decree in this court. He should have made his application there before coming here for relief. The commissioner had made his report of the amount due, to which no exception had been taken; and we are at a loss to conceive any objection, going to the merits of the case, appellant could have made to the decree, had he been present.
In Jenny v. O'Flynn, 5 Mich. 215, there were a number of irregularities following each other in quick succession, and of such a character, and at that stage of the suit, that there was no difficulty in perceiving cases in which great injustice would be done, if they were not corrected by an appellate court.
The decree must be affirmed with costs.
Christiancy and Campbell JJ. concurred. Martin Ch. J. did not hear the argument.
Appellant appeared on the argument of the demurrer, and was served with summons to appear on the reference before the Commissioner. | [
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Christiancy J.:
The first error assigned in this case raises the question, whether, under sec. 2 of the act of February 14th, 1853 (Comp, J. §3436), the decision of the court can legally be given after “the first day of the term succeeding that in which the cause was submitted.”
We are all of opinion that this provision, as relates to the time within which the decision shall be given and filed, is directory merely. It imposes a duty upon the judge; but as the parties have no control over his action, it would be a harsh construction which should deprive them of the fruits of the litigation because the judge fails to decide by a particular day. This provision has been practically construed as only directory, in most, if not all, the circuits.
The first error, therefore, is not well assigned.
The fourth assignment of error raises the question, whether the first section of the act of February 14th, 1853, providing “ that all questions and issues of fact shall be' .tried by the court unless a jury be demanded by one of the parties,” applies to a case of this kind, where a special provision had been made by an earlier statute for a particular kind of verdict, and, in language, applicable only to a trial by jury. We think the act of 1853 does apply to cases of this kind as well as to others, and that, in this particular case, the finding of the court upon the facts takes the place of the verdict; and no jury being demanded by either party, it was competent for the court to try the questionjof fact involved in the case.
The second and third assignments of error turn upon the construction to be given to the record.
This record is so confused and imperfect as to render it difficult, if not impossible, to determine what proceedings actually took place, or the order in which they occurred* But as neither party has alleged diminution, or complained of any deficiency of the return, we must consider the return as containing the whole record, and as exhibiting precisely the form of the original. .
Doubtless we should liberally exercise the power of amendment in such a case, or entirely disregard such errors as are capable of amendment here, if we could discover what those amendments should be. Birt if we can find nothing to amend by, and can not ascertain what judgment the court intended to give, or ought to have given, the power of amendment will have nothing to operate upon.
The statute applicable to actions of ejectment of this particular class, is found in Compiled Laws, pp. 1238 and 1239 (§§4603 to 4606), and from these provisions (in connection with the act of February 14th, 1853, referred to) it is clear,
1st. That to entitle the defendant in this action to an allowance for buildings and' improvements, he must, before trial, file his claim therefor in writing, with a request for an estimation by the jury of the increased value of the premises on that account.
2d. If he file no such claim and request, the verdict will be general, and the plaintiff, if he succeed, will be entitled to judgment for the recovery of the premises as }n other cases.
8d. If lie does file such claim and request, and the plaintiff files none for an estimation of the land without improvements, the jury must estimate the increased value under defendant’s claim, and if their verdict be for the plaintiff for the land, the latter will be entitled to judgment for the recovery of the premises. But in sixch case, xmless the plaintiff shall, within a year from the rendition of the judgment, pay to the clerk of the court, for the use of the defendant, the sum so found for buildings and improvements, he will be deemed to have abandoned all claim to the land; and no writ of possession will issue till such sum is paid.
But, 4th. The plaintiff, when defendant has filed his claim and request, may also, before trial, file a request in writing that the jury woxxld also estimate what would have' been the value of the premises at the time of the trial, had no buildings been erected, or improvements made, or waste committed. And when both requests have thus been filed, it is the duty of the jury, when the trial is by jxxry, to make both these estimates, and state them in their verdict; and if the trial is by the court without a jxxry, the finding of the court upon the facts must take the place of the verdict, and be just as explicit and complete in itself, and as distinct from other proceedings in the cause, as the verdict of the jury is required to be.
5th. The finding of these facts, or the making of the estimates, thoxxgh a part of the verdict, is distinct from, and necessarily precedes, any judgment whatever. After the verdict (for it is but a verdict whether found by the court or the jury), if it be in favor of the plaintiff for the premises, he has the right, at the same or the next subsequent term, to make his election on record to abandon the premises to the defendant at the value estimated (xmder his request) by the jury; and in case he so elects, judgment is to be rendered against the defendant for the sum so estimated, with the costs of suit. If he do not so elect within the prescribed time, the case will stand as if he had filed no request, and judgment, may be entered against the defendant for the recovery of the premises^, though subject to be defeated by the non-payment, within the year, of the sum assessed for buildings and improvements.
But in no case can the plaintiff be entitled to more than one judgment, or one election, in the cause.
As so much, therefore, depends upon this finding of verdict, it is of the utmost importance, when found by the court, that it should be clear and complete in itself; distinct from the other proceedings in the cause, and in such form that, when examined in the court below, or in this court, it may at least be possible to ascertain where it begins and where it ends; and not so blended and intermixed with mere clerical entries, conclusions of law, and matters of recital, as to destroy its identity, or render it unintelligible. We express no opinion as to the necessity of having the “ decision ” of the court, in other and ordinary cases tried by the court under the second section of the act of February 14th, 1853, reduced to writing and filed with the clerk; though it can not be doubted it would prevent confusion, and greatly conduce to certainty in all cases. JBut we are all of opinion that a special finding or verdict, by the court acting in the place of a jury, in a case like the present, must be reduced to writing and filed with the clerk, before any judgment can be rendered upon it. It is plain from the face of this record that this was not done in this case, and that there has been no such verdict, or finding, as the statute contemplates in ejectment cases of this kind, but that the whole was made by the clerk, and in so confused and unintelligible a manner as to be incomprehensible. No more conclusive reason need be given for requiring this special finding to be in writing than is furnished by this record. Had it been in writing in this case, much of the obscurity in which it is now involved would have been avoided.
The second error, therefore, is well assigned.
But while the record fails to show some things which ought to appear, it shows two distinct judgments entered in the case when it ought to have shown but one. The first is for a recovery of the premises, with nominal dam. ages, and six cents costs, followed by an award of a writ of possession. This seems to have been given directly after the general finding upon the issue of not guilty, and before any finding under the request of either party. Then follows the recital that such requests had been made, and the finding upon them. Next, the statements of plaintiff’selection to abandon to defendant, and to take judgment for the value; and, finally, a judgment for the value, with costs to be taxed.
Now, independent of the question whether the finding or verdict should have been in writing, the question arises which, if either, of these judgments was intended to be given by the court, and is to be treated as a judgment. It is possible that if the record contained a request in writing by the plaintiffs, duly filed before the trial, for the estimation" in his behalf, and it also appeared that such estimate was properly made, as a part of the verdict or finding, we might reject the first judgment as a nullity— as mere surplussage. But there is no record evidence that any such written request was ever filed by the plaintiff; much less that it was filed before the trial. This request constitutes as essential a part of the record in such a case as the declaration or plea. The verdict of the jury, or the finding of the court, must be founded upon it, and is unauthorized without it.
That on the part of the defendant seems to have been duly filed with his plea, and appears in full in the record; but none appears on the part of the plaintiff. There is a recital in what is claimed as the decision or finding of the court, that such written request had been filed, though it does not state when. But it is not the offi.ce of this verdict, or finding of facts, to find or state the pleadings; and such recital is no better evidence of its existence, or its contents, than if stated in the verdict of a jury. A verdict could hardly supply the want of a declaration, or make the record good without it, unless, possibly, where there should appear evidence of its prior existence and subsequent loss. There being, therefore, no evidence of any such claim filed by the plaintiff, the first judgment would be the only one authorized, if any, and would terminate the plaintifi’s right of election. But, judging from the record, it is impossible to say that the court intended to give one of these judgments more than the other. The only inference of intent, judging from the recitals, is that both were intended.
The judgments must be reversed, and a new trial granted.
The other Justices concurred. | [
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Campbell J.:
Judgment was rendered in the Circuit Court for the county of Oakland, against the defendants, upon two recognizances taken before the circuit court commissioner of Wayne county in February, 1857. Eaóh purported to be for bailing Willard Daniels upon commitment by the police justice of Detroit, to ansAver charges, one of “the crime of incest,” and the other of “the crime of attempting to procure an abortion.” Errors are assigned, First, That the crimes are not sufficiently described as legal offenses; Second, That the jurisdictional facts to authorize the taking of the recognizances do not sufficiently appear; and, Thirdly, That the circuit court commissioner had no poAver to take bail in any case.
In the case of the People v. Rutan, 3 Mich. 42, and the People v. Dennis, 4 Mich. 609, the late Supreme Court referred to the rules governing in the description of offenses in recognizances. We think the description of the offenses charged in each of the instruments before us substantially accurate. In an indictment it is necessary to conform to legal phraseology, and for that reason it Avould not be sufficient to use the language which is used here. But Ave do not think the legal phrases describe the offenses any more perfectly to the common understanding, or that they are any less liable to misconstruction. Incest means, in all cases, illicit intercourse betAveen persons within the degrees of consanguinity Within which marriages are forbidden by law. This is the offense prohibited by statute, and the statute itself uses the term “incestuous,” to characterize the illegality of the marriage.— 2 Comp. D. p. 1543. An attempt to procure an abortion is equally Avell described by the statute (2 Comp. D. p. 1509) relating to attempts to procure miscarriage. The terms used in the index to the Compiled Laws are precisely the same contained in these recognizances. They are not open to mistake or ambiguity.
It is next claimed that it should appear upon the face of the recognizances, that the police justice in making the commitment acted within his jurisdiction. No objection is made to Ms power to commit for such offenses, if charged upon a proper complaint to have been committed within his jurisdiction; but the error assigned is that it does not appear that the crimes charged were coimnitted within his jurisdiction.
This is not a case where a person is held to bail by the examining officer, and forced to enter into the recognizances or stand committed. Here the commissioner acts upon the application of the prisoner, who has already been committed by a magistrate. The statute declares that the commissioner, “on application of any prisoner committed for any bailable offense, may inquire into the case and admit such prisoner to bail.”' — '2 Comp. L. p. ISII. And the same statute (p. 1579) declares that no action shall be defeated “for any defect in the form of the recognizance, if it sufficiently appear from the tenor thereof, at what court the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized by law to require and take such recognizance.
The commissioner is one of the officers named as having, in the language of the court in People v. Dennis, “ authority by law to act in cases of that general description”; and, further than this, it appears, in the language of the statute, that Daniels was “ committed for á bailable offense.” It would be dangerous to require, in cases of this character, any further recital of jurisdiction, and would lead into collateral inquiries entirely out of place. It must be remembered that the jurisdiction of the commissioner is invoked by the prisoner himself, and not against him. The accused must bring himself within the statute before he has any right to ask the aid of the commissioner. If he has been illegally committed, he has the remedy by habeas corpus, and in no other way. The recognizance is therefore a voluntary act, and one of which the accused could not avail himself, except upon his own showing of a legal commitment. He certainly can not now claim that it is defective in not containing affirmative statements establishing that fact, even if such defects exist. The presumptions in such case must be in its favor. Voluntary recognizances have always received a liberal construction.— Champlain v. People, 2 Comst. 82. "We should be far from holding that such presumptions may not be rebutted, and we are not aware of any rule preventing it. But, until rebutted, we think the recognizances were certainly sufficient.
It is claimed by the respondents that the circuit court commissioner had no power to act. Prior to the Constitution of 1851 this power was vested in commissioners by express statute. But it is urged that the Constitution operated as a repeal of this, — First, Because it provided that the judicial' powers of commissioners should not exceed those of a circuit judge at chambers; and, Second, Because circuit judges are not mentioned in the statute, and, whether mentioned or not, have no such chamber powers.
The statute mentions only judges of the Supreme Court. But under the new Constitution, the circuit judges were at that time judges of .the Supreme Court, and no other persons answered the description. And we do not regard the language of the Constitution as at all ambiguous upon the extent of judicial power authorized to be conferred on these officers. It is well known that many powers, legal and equitable, are vested in the circuit judges out of court; and in those counties where no judge resides, great inconveniences would arise if no one else could perform those functions. Many ‘of these powers had, under the old Constitution, been vested in circuit court commissioners. We think the plain meaning of the Constitution was to permit the Legislature to invest these officers with any of the judicial powers which a circuit judge might lawfully exercise when not in court. How many of these powers should in fact be granted was left to the legislative discretion. Admitting the power exercised by the commissioner to be in all respects a judicial power, it is, we think, plainly -within the terms of the Constitution. It is a power which has been intrusted to single judges from remote centuries.
But it admits of grave doubts, at least, whether the power of letting or holding to bail is '■'■judicial power” within the meaning of that clause of the Constitution which confines such power to courts. By the judicial power of courts is generally understood the power to hear and determine controversies between adverse parties, and questions in litigation. — See, upon this subject, Story on Const. §1640, et seq. Although the whole judicial power of the United States is vested in the Federal Courts, the power to take examinations and hold to bail has always been vested in certain officers who are not judges of those courts. It was held in Ex parte Gist, 26 Ala. 156, that this delegation was lawful for the reason that it did not bestow “judicial power” within the meaning of the Constitution. And the court of King’s Bench, in the case of Cox v. Coleridge, 1 B. & C. 37, distinguish expressly between trials before magistrates and proceedings to examine and hold to bail, and declare the latter not to be judicial acts. Holn'oyd X. says: “A magistrate, in cases like the present, does not act as a court of justice; he is only an officer deputed by the law to enter into a preliminary inquiry”; and Best X. says: “So far was this examination from being a judicial inquiry, which means, an inquiry in oMer to decide on the 'guilt or innocence of the prisoner, that, as the law was administered a few years after the passing these statutes, the justices, even where it appeared that a prisoner was not guilty, were not to discharge him without bail. — Dalton, c. 164. The modern practice is, indeed, different, and is more consistent with law and humanity; and I refer to Dalton only to show that it could not then have been the opinion of the profession that this examination was any thing like a judicial inquiry.”
The right to bail is a constitutional privilege, and if it could only be obtained through courts, not only would their sessions be cumbered with applications, but, where those sessions are infrequent, there would be a gross failure of justice, equivalent to a denial of this unquestioned right. The origin of the whole system is to be found in the authority of conservators of the peace. While each court might commit and hold to bail offenders to be tried before it, the power, in other cases, was vested in the court of King’s Bench, and in its judges separately, as well as in other high officers. The office of Justice of the Peace was originally created for the same purpose. — 3 Sawlc. PI. Cr. 51, 231; Bac. Air. "Justices of the Peace" Our Constitution makes judges and justices conservators of the peace-.— Const. Art. 6, §19. Each person holds the authority, not as a member of a court while in session, but as an officer in that special capacity. Conservators of the peace appear to have been regarded as no more judicial than executive officers, and several of the high executive functionaries exercised their. powers. Discretionary and judicial powers are often convertible terms, and there are many acts requiring the _ exercise of judgment, which may be fairly said to be of a judicial nature, and yet in no sense coming within the judicial power as ajiplicable to courts. In Connecticut, it was early held that a sheriff' could take bail in a criminal case, and that it was not a judicial ait. — Kingsbury v. Dickinson, 2 Day, 1. And in New York, in Tillotson v. Cheetham, 2 Johns. 63, it was held that a sheriff presiding over a jury of inquest, acted ministerially and not judicially, and could therefore act by deputy. In that case the subject is fully reviewed.
Without undertaking to lay down precisely where the dividing line is, it is very manifest that the discretion exercised and needed in an inquiry into the amount of bail which should be required of a prisoner, is of a very different character from the judicial discretion used in the trial of causes, and has very little to do with fixed legal principles. It must, of necessity, be open to the Legislature to provide for the various new cases which from time to time arise, requiring some discretionary powers to be vested in proper officers. The rights of individuals to have fair trials ,in the courts are amply secured by the Constitution. Beyond this, it would be a forced, construction to hold that every act and investigation involving the exercise of a quasi judicial discretion must be vested, of necessity, in courts which are utterly unfitted by their organization for any such purposes.
Upon any view of this question, we think the commissioner had power to act in the premises.
The judgment must be affirmed.
The other Justices concurred. | [
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Martin Oh. J.:
The Michigan Insurance Company was the holder of two mortgages executed by the Kibbees, at the time the contract between them and Thompson was executed, and at the same time one David N. Tuttle, of Buffalo, was the holder of two other mortgages upon a portion of the same premises, of jirior date to those of the Insurance Company; the second of which had been foreclosed, and the property advertised for sale by a master under the decree of fore” closure. Tuttle had offered to discharge the first mortgage, and the decree of foreclosure, for the sum of six thousand dollars, one- half to be paid down, and the residue in three years, by semi-annual installments of five hundred dollars each, with interest; and the Insurance Company had also offered to take one thousand five hundred dollars in satisfaction and discharge of its mortgages; and these offers of the Company and of Tuttle were known to Thompson, and were the basis of the contract between the Kibbees and him. With such knowledge, and in the hope of securing the benefit of these offers, the contract of January 5th, 1852, was entered into. By it, the Kibbees agreed to sell, and Thompson to purchase, the property covered by the several mortgages, for seven thousand five hundred dollars, which was to be paid in the following manner: Thompson Was to pay six thousand dollars to Tuttle, to satisfy his claims against the Kibbees, and one thousand five hundred to the Insurance Company for a like purpose, and each payment was independent of the other, as we will endeavor presently to show. The six thousand dollars was to be paid to Tuttle, if it should be found necessary to pay so much, to procure the release of his mortgage and decree; but Thompson was at liberty to' make any better, or any other, bargain he could with Tuttle; but the sum of six thousand dollars only was to be allowed to him for obtaining the discharge of these debts, whatever might be the price at which he should procure it, and that sum was bo be allowed to him in any event. The instant Tuttle was satisfied his debts,, the sum of six thousand dollars was paid upon this purchase from the Kibbees, irrespective of the cost to Thompson; the speculation was his, the profit or loss equally accruing to him, as circumstances or his choice might determine. But because Tuttle might not adhere to his offer to discharge the mortgage and decree for six thousand dollars, or Thompson be unable from any other reason to procure such discharge, a provision was inserted to * meet such a contingency, and Thompson agreed that in such event, if the property should go to sale under the decree, he would bid at such sale the six thousand dollars, less the amount due on the first mortgage, if necessary to prevent a purchase by any other party; and as this would not be sufficient to satisfy the decree, interest, and costs, the Kibbees were to provide for and pay the balance of the decree and the first mortgage, so that the amount to be paid by Thompson should not exceed seven thousand five hundred dollars, to be payable at the same time, and upon the same terms and conditions, as if the mortgage and decree had been discharged by Tuttle without sale. In other words, the parties contracted that if the property should be sold by the master, Thompson should bid a sum equal to the remainder after deducting the amount of the first mortgage from the sum of six thousand dollars, and as such bid would not satisfy the decree, the Kibbees were to provide for the balance, and were also to' take up the first- mortgage, which would remara still outstanding; and Thompson was to pay to them the balance over and above his bid, so as to make the amount of six thousand dollars, in semi-annual installments of five hundred dollars and interest, as it was contemplated and provided he would pay Tuttle if the negotiation was consummated with him, and the sale of the property prevented.
The residue of the seven thousand five hundred dollars —viz. one thousand five hundred dollars — was entirely separated from this transaction respecting the Tuttle mortgage and decree, and dedicated to another use. This sum, Thompson agreed he would pay to the Insurance Company for the satisfaction of its mortgages, six months after he should have acquired a title to the premises; and this he was entitled to have immediately upon his procuring a release of the mortgage and decree from Tuttle, by negotiation, or after the sale under the decree, if a sale should be made, and he bid thereat as provided in the contract. The time, and nothing but the time, for this payment was contingent upon the success of Thompson’s negotiation with Tuttle, as, if that was consummated, the title would be presently conveyed to him, while if the property should be sold, and the Kibbees be compelled to pay off^the first mortgage, a longer or a shorter time might elapse before they could convey, according to circumstances. This conclusively shows that this payment was in no way contingent upon the amount of the residuum left after paying Tuttle’s mortgage and decree.
The Kibbees, on their part, agreed to convey the property to Thompson upon his performance of his covenants; he first executing such mortgage or other security as might be necessary for securing the payment of whatever balance of the purchase money might remain unpaid, which might be more or less ■ according to the result of his negotiation with Tuttle, but would at least cover the ob ligation to pay the debt of the Kibbees to the Insurance Company. Thompson was put into immediate possession of the premises, and they are yet held by him or the Harts, under that surrendry, and, as we shall see, under the contract. The contract was deposited with one Wesson by the parties, and Thompson, at the same time, deposited with him three hundred dollars to be paid to the Kibbees as and for rent, if the sale to him was not perfected in the way contemplated in the contract, or to be applied towards the payment of the purchase price; that is, be refunded, or appropriated towards the satisfaction of the decree and mortgage, as the case might be, if the sale should be consummated.
From this synopsis of the contract it appears that Thompson was restricted to two methods of extinguishing Tuttle’s claims; first, by negotiation, in which case, whatever he paid, more or less, he was to be allowed six thousand dollars therefor; and, second, by bidding at the sale, in which case the Kibbees were to provide for and pay the balance of the decree, as also the first mortgage; so that in either or any event, in whatever ’mode Tuttle was satisfied of his claims, and for whatever consideration he released them, such discharge and release should cost the Kibbees no more than six thousand dollars, unless the property should be sold under the decree, -and they be compelled to pay to Tuttle, for the discharge of the mortgage, a sum Avhich would increase that amount; in Avhich event, Thompson Avould only be required to. pay them sufficient over his bid to make the six thousand dollars.
He could, in no event, compel them to pay more than six thousand dollars, to discharge the Tuttle claims. They might be compelled, it is true, to do -so, but that necessity was left contingent only upon the necessity for a negotiation by them Avith Tuttle for the discharge of the mortgage, which could only arise after a sale under the decree; and the right to make this negotiation the Kibbees ■reserved to themselves.
The amount which Thompson should pay to Tuttle for ■a release of his decree and mortgage was therefore a matter of indifference to the Kibbees, as was to him the amount which they should pay to Tuttle for a release of the mortgage in case of a sale under the decree.
The Kibbees, in their bill, charge and insist, among ■other things, that immediately after the execution of the contract, Thompson assumed exclusively the right to negotiate with Tuttle, who resided at Buffalo, and that the negotiation was conducted through the Harts at his request, without any direct communication between him and Tuttle; and they charge, substantially, that he executed the contract upon his part, so far as relates to the Tuttle mortgage and decree, by negotiation, and without sale, ■although he purchased the same for a sum exceeding six thousand dollars (which they claim was at his peril under the contract), and took an assignment instead of a discharge and release, which they insist was contrary to the terms ■and true intent of the contract, and was without their consent: That afterwards, he informed them that he had .paid the decree and mortgage, and was the holder thereof, and that they thereupon executed to him quit-claim deeds of the premises mentioned in the contract (part only of which were included in the moftgages to Tuttle), •at his request and to his satisfaction, and deposited them, with his consent, with Wesson, to be held until] the release of the mortgage and decree should arrive from Buffalo, and that, at the same time, Thompson, with their consent, withdrew the three hundred dollars deposit.
The defendants Hart and Thompson, in their answers, admit the contract, and the deposit of three hundred dollars by Thompson, but deny that he thereafter assumed the exclusive right to negotiate with Tuttle for the purchase of the mortgage and decree.
We can discover but one object in making this denial, viz. to establish a standpoint from which to argue that the. purchase by the Harts of the mortgage and decree was upon their own account, and independent of Thompson’s contract. Its falsity and utter worthlessness for such purpose will be* manifested as we examine the other portions of the answers, and the evidence.
In their answers they admit, notwithstanding this denial, that the Harts concluded the negotiation with Tuttle for the-purchase of the mortgage and decree, and that during such, negotiations there were direct communications between them-, selves respecting it, and that in all such communications,, Thompson directed and urged them to pay but six thousand dollars for such decree and mortgage. And they deny that. Thompson failed, neglected, or refused to comply Avith the-terms of Tuttle, as set out in the contract; but they aver-that, on the contrary, he Avas always ready, Avilling, and de^ sirous of purchasing the mortgage and decree for six thousand dollars. The Harts, in their answer, aver "that they had fora long time been anxious to purchase some mill property in Michigan, and had agreed with Thompson to’make inquiries-, for them; and that, in pursuance thereof, he proposed to them to purchase the property of the Kibbees with him, which,, after learning the situation of the property, they agreed to, do for seven thousand five hundred dollars. Thompson, in his answer, substantially admits the same facts.
The defendants Hart, in their answer, further aver that in, pursuance of the true intent and meaning of the agreement of Thompson and the Kibbees, they (the Harts) did propose to Tuttle to purchase from him the decree and mortgage for-six thousand dollars; that he declined to sell for that price,, and that they then, in pursuance of the contract, bought, them for the amount due upon them, and insist that they-had a right so to do. But they say that Thompson urged; them not to pay over six thousand dollars. They also insist that they paid their own money for the mortgage and decree and that Thompson has no right or title to them; and they deny that in such purchase they acted as agents for Thompson, 'but claim that they acted for themselves; and Thompson, in íais answer, avers that the Harts paid their own money, •against his express instructions not to pay over six thousand •dollars.
These are a portion of the inconsistent statements of the Harts and Thompson upon the subject of the purchase and •of Thompson’s interest; and although these answers are not evidence (the oath having been waived), they may be examined as to the defenses set up, to illustrate the faith with which the defendants, making them, have acted, and with which they contest the Kibbees’ claims against them-. Here we find them at one time claiming that Thompson had never assumed the exclusive right of negotiation with Tuttle, and yet admitting that he was in constant communication with the Harts, directing and limiting them in such negotiations* We find that Thompson acquired his right to negotiate with Tuttle from the agreement; under which, and in consideration that he would act in the matter for the Kibbees, a contract of sale and purchase was made, and possession of %he premises surrendered to him; and we also find that he, ■through the Harts, attempted to purchase the mortgage and ‘decree for six thousand dollars, and instructed and limited •them to the payment of that amount (he evidently understanding the -true import of the contract, as also knowing ■the object and intention of the parties); and we find the ■Harts insisting that they have executed the contract according to its true intent and meaning, and that they bought under it, asserting no privity of contract with the Kibbees claiming only to act under Thompson’s power, claiming no purchase or assignment from him, but admitting that they agreed with him, upon his representations, to purchase with him the property in question; and after all this, insisting ‘that they bought with their own money, and that Thompson ‘has no right or title to the mortgage and decree, and deny- mg that they acted as his agents in the purchase, but claiming that they acted for themselves; and from all these inconsistencies, they would seem to seek to have the court deduce the crowning inconsistency that they bought independently of any agreement with, or authority from, any one,, and yet bought under the contract in question, according to its terms and import, and in execution of it.
"We will now look into the testimony bearing upon this branch of the defense. Holbrook, who drew the contract, between Thompson and the. Kibbees, swears that immediately after its execution there was considerable conversation be-, tween the parties to it as to the best' manner of communi-. eating with Tuttle about accepting and closing with his offer-to take six thousand dollars for the mortgage and decree, and that Porter Kibbee proposed to go through Canada to. see him, but that Thompson dissuaded him from this by telling him that he could telegraph an agent of his at Buffalo, which would answer the same purpose, and that Kibbee assented to that arrangment. Tuttle testifies that the. Harts attempted to purchase the decree and mortgage for-six thousand dollars, and failing in that, they purchased them for seven thousand two hundred and ninety - one dollars, all paid down, or very soon, except three thousand dollars, for which sum he took drafts in five hundred dollars- each, payable, every six months, precisely as to time, and substantially in manner, it will be observed, in which the three thousand dollars no.t paid down was to be paid by the terms of the contract; a coincidence remarkable if not designed. He also, testifies that the mortgage and decree were assigned by him to Thompson at the request of the Harts, without any reason given for such request, and that they stated to him that they would have an interest with Thompson in the property,.
The testimony of these witnesses, Coupled with the ad-^ missions of the Harts and Thompson, in their answers, evidence a want of candor on Thompson’s part respecting the. manner in which he intended to, conduct the negotiation with. Tuttle, if they do not show a fraudulent design, and intentional concealment of his connection with the Harts; and also establish the fact that the Harts assumed to act under Thompson and his contract, complied with the ‘latter so far as the terms of payment of the three thousand dollars were concerned, and expected to have an interest with him in the property, through the execution of the contract. If then they paid their own money, it was by way of advance to Thompson, and not as an independent investment. When Thompson dissuaded Porter Kibbee from negotiating with Tuttle in person, to secure a release of the decree and mortgage on*the most favorable terms to himself and Henry C., he did it, we must presume, so as to secure to himself the exclusive control of the negotiation; and whether with honest or fraudulent intent is immaterial. He represented the Harts as his “ agent ”/ it is impossible to conclude from the evidence but that they must have known the terms of his contract, and whether they expected to have an interest with him in the property or not, they must be held to have acted for him, and to have advanced and paid what money they did, for him and not for themselves. Whatever may have been their private understanding, it was concealed from the Kibbees, who knew Thompson only; and he must be considered as having operated through the Harts in the negotiation; and they can claim nothing for themselves adversely to the Kibbees’ rights under the agreement. Or, to assume the position of the defendants Harts and Thompson, if Thompson was acting on behalf of them all, they are all bound by his contract, and his acts and declarations; and their acts will be construed as his alone.
The evidence nowhere discloses the fact that Thompson informed the Kibbees of his connection with the Harts, nor does it show that the Harts informed Tuttle, or that he ever knew, that they were negotiating for Thompson, or for him and themselves, or under a contract with the Kibbees; nor does Thompson’s name appear to have been used until in structions were given that the assignments should be made to him. Thompson, in this particular, appears to have deceived the Kibbees, and, perhaps, to have been himself deceived by the Harts. However, this may be, neither of them can complain if they are held to the consequences of the deception. Thompson can not, if he intentionally concealed from the Kibbees his connection with the Harts, and by their act was obligated with them in a greater amount to Tuttle than he contemplated; and if deceived by the Harts, and their pretence be true that they bought with their own money and for themselves, he suffers nothing, and they will not be permitted to make any thing from their double fraud.
Nor do the Harts and Thompson pretend that the Kibbees ever knew of the existence of the Harts while these negotiations were carried on. Thompson studiously kept them out of sight. Had the Kibbees been told that they were concerned with Thompson in the subject of the contract, additional and perhaps stronger reasons might have occurred to the Kibbees why they should attempt the negotiation with Tuttle personally. The evidence most clearly shows that it would have been better for them had they done so. After the purchase had been made and the assignment of the mortgage and decree had been executed to Thompson, he still kept up in the Kibbees the impression that he had negotiated with Tuttle through his agent, and gave them to understand, according to Wesson’s and Holbrook’s testimony, that the negotiation had been conducted according to the contract, and took back his deposit of three hundred dollars upon that representation; for we can not suppose it would have been given up otherwise. Thompson also told Holbrook, in the presence of Henry C. Kibbee, that he had purchased the mortgage and decree from Tuttle, but had not yet received his papers, and that he had purchased through Ms agent, but did not know upon what terms. He afterwards, and when the Kibbees deposited deeds of the property with Wesson, and he withdrew his deposit of three hundred dollars, gave the Kibbees to understand the same thing, and that, as his papers had not then arrived, he could not then deliver to them the release of the decree and mortgage, but that when they did arrive the Kibbees were released from their engagements; and to keep up the deception, he also told them that he had paid more to Tuttle than he expected; and inquired of Mr. Holbrook, who was present, whether the Telegraph Companies were liable for mistakes. These facts indicate that the defense, so far as regards the rights of the Harts, and their purchase for a sum exceeding six thousand dollars, and their claim for the excess, was either concocted after the negotiation with Tuttle, or was fraudulently designed and contemplated from the beginning, but concealed until after the three hundred dollars could be obtained back, and a title obtained under the master’s sale; and however we may regard the transaction as between the defendants, as between them and the Kibbees it was grossly fraudulent.
But this is not all of the inconsistency of these defenses, nor of the conduct of the parties making them. The Kibbees charge in their cross bill, that Thompson, after the transaction with Tuttle had taken place, and he had acquired the mortgage and decree, insisted upon making sale under the decree, against their wishes and objections, and that he and the Harts, bid at such sale for the property two thousand three hundred dollars, and it was struck oif to them at that price; upon which they claim that a deficiency of one thousand two hundred and five dollars remains, which they insist upon collecting; and that after such sale Thompson served upon them a written notice informing them that Tuttle had withdrawn his proposition, and requiring them to jwovide for the balance due on the decree &c.; all which they insist is fraudulent.
These things, the defendants by their answers substantially admit, and do insist upon the benefits of the sale, and claim that the Kibbees should execute the contract as though such sale had been made by Tuttle. The testimony upon this point shows a most wanton attempt to overreach the Kibbees. ■Holbrook testifies that when Thompson informed the Kibbees that he had perfected the negotiation with Tuttle, quit - claim deeds of the property were prepared and executed by them, which were examined by Thompson, and the parties then agreed that the deeds should be deposited with Wesson, and the three hundred dollars returned to Thompson; all which was done. That at that time it was stated that Thompson was to have the property sold under the decree, to get title through that also; and it was agreed that he was to be at the expense of that sale. That, Kibbee or Thompson, both being present, stated that when his papers transferring the decree and mortgage came, the Kibbees were released from all their engagements under the contract: That Henry C. Kibbee said they were anxious to avoid all risks on their part of the dam being carried off, and as Thompson had not got his papers, aiid wanted to get his title under the decree, the deeds were to be deposited with Wesson, and Thompson was to get his money; and Thompson said he wanted a sale under the decree, and as he had not got his papers from Buffalo he could not then discharge the decree and mortgage. Wesson testifies that when the deeds were deposited with him, he asked the parties if the matter was arranged between them, and understood from them that it was. Walker testifies that on the same day, and after the deposit of the deeds with Wesson (for we find from all the evidence that this must be the time), Thompson and Kibbee were> in the Bank of the Insurance Company, to arrange the claim of. the Company against the property: That he told them the property could bé released for one thousand five hundred dollars, or upon Thompson’s giving his note for that sum at six months: That a note was drawn in blank, and a release of mortgage executed and placed in the hands of the cashier to be delivered to Thompson when he signed the note. At this time Thompson said he had purchased the property and would sign the note: That afterwards (and when this afterwards was, will be sufficiently apparent when we consider the conduct of Thompson at and after the sale), Thompson came into the Bank, and said he had concluded not to sign the note. Mr. Bull testifies that on the 30th of January he sold the property under the decree; that Thompson bid it off, and directed the deed to be made to the Harts: That at that time ICibbee asked Thompson if he had an assignment of both mortgages, and that Thompson said he had; that Kibbee then asked him if he was ready to discharge them according to the agreement, and that Thompson evaded an answer, when Kibbee objected to the sale.
This sale, it is manifest, was intended and expected at the time Thompson took up the deposit of three hundred dollars and the Kibbees deposited their deeds of the property, to be at the expense of Thompson, for the purposes of his title, and in no way connected with, nor to affect, the contract, or the rights of the parties; at any rate, such were the Kibbees’ expectations, based upon Thompson’s representations and acts. His whole course at that time, his conversations and statements to them, to Holbrook and Wesson, and his arrangement with Walker, can be explained in no other way than that it was understood the contract was in reality executed by both parties, so far as the extinguishment of Tuttle’s claims and liens were involved. Certainly the Kibbees so understood it, and had a right to understand it, and if Thompson did not, it is because he was maturing his fraudulent schemes upon them. Not until the time of the sale, so far as the case shows, had the Kibbees any suspicion, or reason for suspicion, that they were in danger of being overreached.
Immediately after the sale, Thompson served the notice upon the Kibbees referred to in their bill, and admitted in the answer. This notice sufficiently explains why he informed the Insurance Company that he had concluded not to sign the note for one thousand five hundred dollars, and fully reveals the fraudulent designs of himself and the Harts respecting the Kibbees in their misfortunes. It is as follows:
"Mt. Clemens, February 4th, 1852.
“To Porter Kibbee and Henry C. Kibbee: Gents, — You are hereby notified that I have been unable to purchase or obtain a release of the two mortgages executed by you to David N. Tuttle, and referred to and specified in a written contract entered into between you and me on the 5th day of January, 1852, the said David N. Tuttle having withdrawn his proposition in said contract mentioned, and having refused to assign or release the said mortgages for the sum of six thousand dollars. You are further notified that in pursuance of said contract, I attended at the time and place when and where the premises in the said mortgage described were advertised for sale under and by virtue of the decree in said contract specified and mentioned, and at said sale did bid for said premises in said .decree mentioned, the sum of two thousand three hundred dollars; which sum of two thousand three hundred dollars was' the amount of six thousand dollars less the amount due on the first mortgage by you executed to said David N. Tuttle. You are therefore hereby further notified to provide for and pay the balance remaining over on said decree, and the amount due on said first mortgage.”
It is unnecessary to recapitulate the evidence already referred to, to show that this notice is false in letter and false in spirit; that it could only have been devised for the purpose of fraud; and that the claim for payment of the excess over six thousand dollars, paid in procuring the decree and mortgage, is founded in fraud also. If these things evidence good faith, and an honest intention to execute the contract, and are consistent with honesty and fair dealing we can imagine no case where fraud, as a fact, can be proven, or where equity will withhold its aid to enforce iniquitious demands.
It will be observed, that in this notice Thompson formally informs the Kibbees that Tuttle had withdrawn his offer to take six thousand dollars for the decree and mortgage, and he and the Harts allege in their answers, and insist as a ground of equity, that it was entirely through the perversity of Henry C. Kibbee in forbidding the sale on the 2d of January (three days before this contract was executed) that they failed to procure the discharge of the decree and mortgage for six thousand dollars; and they claim as a result that they were therefore justified in paying seven thousand three hundred dollars, and in insisting that the Kibbees shall refund to them the excess. But they also aver in their answers that the contract, which was made on the 5th of January, was made with full knowledge on the part of Thompson of what Kibbee had done, and that the offer of Tuttle had been, in consequence, withdrawn, and that no offer of Tuttle then existed. This admission of the answers throw light upon the character of the notice, and if such be the fact, it fortifies the position we have already assumed, that Thompson took his chances under the contract, hoping, and pierhaps expecting, that he could induce Tuttle to renew it, but in any event running the risk of the speculation; and clearly under such circumstances as precludes any claim of bad faith on the part of the Kibbees, from which he and the Harts can claim any equities to themselves.
Another ground of defense remains to be noticed, viz. : that the Kibbees represented themselves to Thompson as having good title to the premises, and that, in fact, they had not; and that the deeds deposited with Wesson, for this reason, do not satisfy the contract. This defense is inconsistent with the other parts of their answers, and is wholly unsustained by the evidence. At the time Thompson withdrew the deposit of three hundred dollars, which could only have been withdrawn upon the assumption that the contract, so far as related to Tuttle’s claim, had been executed, deeds for the whole property were deposited with Wesson for Thompson, to remain until the release should be produced. Thompson at that time admitted that the contract was performed on their part thereby. On the the same day, and before the deposit of the deeds (as we infer from the testimony of Wesson and Holbrook), they were examined by Thompson in Holbrook’s office, and their deposit was agreed upon. The Kibbees expressed their anxiety to perform all that could be required of them, and stated the contents of the deeds; and one of them (Porter Kibbee) explained to Thompson the condition of the different parcels. It was then, and upon that information, arranged that Thompson should have the property sold under the decree, to get title through that source also, but at his own expense. These facts, and others which have been already adverted to, are hardly consistent with the assumption that the Kibbees falsely represented the title, or that Thompson was ignorant of its true condition, whatever that may bo. The answers also show that this defense is not made in good faith, but is a mere “make weight.” The Harts admit that Thompson disclaims these deeds because the complainants have not provided for and paid the balance of the decree and mortgage, and they offer yet to pay any balance that may be found due from them, after allowing them the seven thousand three hundred dollars for their purchase, but no pretence is set u¡d of a disclaimer because of defect of title; and they continually insist upon a claim of the title by virtue of the agreement. Thompson also admits that „ he disclaims the deeds, and assigns a like reason, “because complainants have not fulfilled their covenants” in providing for or paying the balance of the six thousand dollars over and above the sum bid by him at the foreclosure sale. And this is the only reason really assigned for refusing to accept them. He also insists upon the agreement, and the title under it, and avers, as do the Harts, that he has ever been ready and willing, and he offers, to pay to complainants the balance of seven thousand five hundred dollars remaining unpaid, after deducting therefrom the amount paid Tuttle for the decree and mortgage. Under this kind of defense, and this evidence, it is of little moment what the title of the complainants was. From the evidence of title, we have no satisfactory information respecting it, but we do know that Thompson was informed respecting it, and that all the defendants still insist upon and claim under the agreement, and are still willing to perform it on their part, if they can draw out of the complainants the excess above six thousand dollars which they fraudulently paid Tuttle for his claims. Under these circumstances we regard this defense as fictitious, and unworthy of serious consideration,
Thompson and the Harts must either repudiate the contract altogether, or execute it — they can not claim rights and benefits under it, and repudiate it at the same time.
From a consideration of the whole caso we are satisfied that Thompson pursued neither of the two modes contemplated in the contract for the ■ extinguishment of Tuttle’s claims; that the Harts acted with him, and are bound by his contract and acts and declarations, as well as he by theirs, and that they have no rights independent of his, superior to those he can assort; and that the whole transaction has been grossly fraudulent towards the Kibbees.
By the purchase of the decree and mortgage they deprived the Kibbees of a right, reserved by the contract, to negotiate with Tuttle, and provide for the payment of the first mortgage, and the' balance of the decree remaining after Thompson’s bid, if a sale by Tuttle should take place —a power which, in their embarrassed condition, might be valuable to them; but by that purchase they put themselves in the place of Tuttle, and in a condition to release the decree and mortgage for the six thousand dollars. The power to negotiate, which the Kibbees reserved, so as to procure the release for as small a sum as possible if the property were sold, can now be exercised so that the contract shall be executed according to its true spirit; the will which it was feared Tuttle might not exercise,- Thompson and the Harts now control, and they must be held to perform that which they contracted to procure Tuttle .to perform, so long as they have voluntarily placed themselves, and that by their own fraud and bad faith, in his place, and in a condition to do it. If a loss occurs to them, they can attribute it to their own voluntary act, in departing from the contract, by which they were empowered by the Kibbees to procure the release of the decree and mortgage, and which they undertook to perform. They can claim no rights independent of the contract, or power, except that conferred by it, so long as they claim under it, which in this defense they persist in doing: and whatever they have done under it, inures to the Kibbees’ benefit.
In this examination we have omitted to notice the case made by the original bill, and the answers of the Harts and Thompson to it. These will be found to be utterly inconsistent Avith those to the cross bill of the Kibbees, and further show, if such be necessary, the falsity and bad faith of the defenses, and the fraudulent character of their Avhole conduct relative to the execution of the contract. Nor have we shown all of the inconsistencies of the defense to the cross bill; but enough, we apprehend, has been shown to render it evident that the Insurance Company, and the Kibbees, are entitled to the relief they have asked.
The decree of the court below must be affirmed, with costs of the complainants in the original and cross bill to be taxed against the defendants Thompson and the Harts, and this cause must be remitted to that court for execution of the decree.
Manning and Christiancy JJ. concurred. Campbblt, J. did not sit, having been of counsel. | [
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Christiancy J.:
The first error assigned raises the question, whether the justification by the defendants under the judgment and execution against Robertson, was admissible under the general issue without notice. For myself, I am strongly inclined to the opinion that it was not, and that notice of the defense should have been given. But my brethren all hold this defense admissible without notice; and as we all agree in the result upon another branch of the case, I yield to their opinion on this point, and abstain from discussing it. The result is, that there is no error in the ruling of the court below upon this point.
The other assignment of error raises the question, whether the judge erred in charging'the jury that, “By the terms of the written contract between the plaintiff and Robertson, all the goods purchased by the plaintiff under the same became and were the property of Robertson as soon as the same were delivered into his possession, and that the legal effect of the contract was to constitute, and that it did constitute, a sale from plaintiff to Robertson of¿the g'oods purchased by the plaintiff and delivered to Robertson pursuant to the contract, and rendered the goods subject to the claims of Robertson’s creditors,” &c.
. This charge relates only to goods purchased by the plaintiff.\ and delivered to Robertson under the agreement; it is entirely distinct from, and independent of, any question which might have been raised whether any of the goods so purchased by the plaintiff were fraudulently purchased with the money or capital of Robertson, to shield them from the creditors of the latter; or whether any of the property claimed by ¡baintiff had been purchased by Robertson independent of the agreement, and fraudulently cloaked under it; and this charge rendered the question of fraud between plaintiff and Robertson, as depending upon the parol evidence given in the cause, wholly immaterial; and no such question of fraud appears to have been submitted to the jury. If, therefore, the legal effect of the contract, independent of any extrinsic evidence, was not such as to vest the property in Robertson, as stated by the charge, the judgment must be reversed.
Independent of any question of fraud raised by extrinsic evidence, did this contract have the effect to vest in Robertson the property in the goods purchased and placed in the store by the plaintiff in ¡pursuance of its terms, and did the contract constitute a sale of such goods, as stated by the charge? We think it did not; but that, construing it with reference only to what appears upon its face, it was substantially a contract by which the plaintiff undertook to furnish goods to Robertson, the latter to sell them, and to carry on the business for plaintiff, and in his store, so long as the plaintiff chose to employ him in that capacity, and that Robertson was to receive for his compensation all that could be made from the business over ten per cent., after paying cost and transportation ; that Robertson was to be responsible for any bad debts he should make in the business, as in the case of a del credere commission, plaintiff having the right to close the business at any time, and to take all the goods, or such of them as he should see fit, with the undertaking on the part of Robertson to purchase the goods on hand, or any part of them, as the plaintiff should elect, at cost and transportation; and that the goods, during the continuance of the business, and while in the course of transportation, should be at the risk of Robertson.
It is contended that the risk is an incident of ownership, and therefore conclusive of the ownership of the goods by Robertson; but though a usual, it is by no means an inseparable incident — it is only so in the absence of contract to the contrary. It is perfectly competent for a clerk, bailee, or any other person dealing in any way with the property of another, by contract to take the risk upon himself, as Robertson did in this case.
It is very possible if the question had arisen between the vendors of these goods on the one hand, and Snook and Robertson on the other, in an action to recover against the two latter the purchase price of the goods, Robertson might have been held liable to such creditors as a partner. But no such question is involved here. The question here presented on the construction of the contract, is, whether by the provisions of the contract itself, as between the parties to it, the property vested in Robertson. We think the legal effect of the contract, without reference to extrinsic evidence, was not a sale, though it might become such at the option of plaintiff, at any time when he saw fit to close the business.
But here the question may arise, whether the contract, upon its face, is such that the court can say, as matter of law, without evidence aliunde, that it was a fraud upon creditors, or conclusive evidence of fraud.
Neither the contract as a whole, noriany stipulation of it, is in any manner inconsistent, with entire honesty of purpose and fair dealing. It might "easily be carried into full effect, in letter and spirit, without any fraud upon creditors or other persons; and, in fact, if carried into full effect according to the fair and natural import of its termgit could not well operate as a fraud upon creditors; as the goods were to be purchased and paid for, not with the money or capital of Robertson, but of the plaintiff. There is not then any thing upon the face of the contract, which can enable the court to treat it as fraudulent towards creditors, or as any evidence that property of Robertson was shielded by it to their injury.
It is, however, easy to see that such a contract might be made a very convenient cloak of fraud upon creditors; but this would not be in pursuance, but only under pretence of the contract. Thus, by concert between them, the plaintiff might have purchased goods with money furnished by Robertson, or Robertson might purchase himself, -place them in the store, and seek to hold them under pretence of the contract; and in a great variety of ways the contract (like most other contracts, and perhaps more than most others), Was capable of being perverted to a fraudulent purpose. But whether it was so perverted or not — whether the contract was in good faith, or intended to defraud — whether any thing done, or claimed to be done, under it was fraudulent or not— Were questions of fact for the jury, depending upon evidence outside of the instrument itself, the facts and circumstances leading to the contract, the situation and conduct of the parties in reference to the subject-matter, and all other circumstances from which the intent might be inferred, and the nature of the whole transaction ascertained.
There was evidence of this character in the present case, as appears by the bill of exceptions, and from which the jury might or might not have found a fraudulent intent, and from Which they might have determined the question of ownership) of the property. But the effect of the charge was to withdraw all such evidence from the consideration of the jury, and to make the whole controversy turn upon the construction of the contract as a question of law. For these reasons, the judgment must be reversed and a new trial granted,
The other Justices concurred. | [
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Per Curiam.
This action stems from a 1975 incident and is but another appeal in a long line of legal proceedings. In 1975, while Chester Campbell was incarcerated on an unrelated charge, Detroit police officers seized approximately $280,000 in cash from Campbell’s home pursuant to a warrant which authorized them to search for weapons, drugs and other drug paraphernalia. The Internal Revenue Service and the Michigan Department of Treasury immediately issued jeopardy sales tax assessments based on drug records seized. Shortly thereafter a Recorder’s Court judge held that the seizure was illegal as it was not within the scope of the warrant. The court ordered the return of the money, however the Detroit police had already distributed the money to the irs ($137,823) and the Department of Treasury ($127,775) in partial satisfaction of the jeopardy assessments. Campbell then took steps to retrieve the money.
Campbell first filed a request with the Department of Treasury for an informal hearing concerning the validity of the assessment. The hearing was eventually held and the board upheld the validity of the assessment. Then Campbell filed suit in federal court and after lengthy proceedings the irs was ordered to return the money to Campbell. Campbell v United States, 592 F2d 309 (CA 6, 1979). Prior to the scheduled delivery date the Treásury Department filed an action against Campbell and his attorney, Patmon, Young & Kirk, P.C. (pyk), seeking a temporary restraining order enjoining them from disposing of the funds returned to them by the irs. The Treasury Department sought to assert its claims to the funds being returned by the irs to satisfy the balance of the original tax assessment. Our Court said that the state’s tax lien takes priority over the attorney’s lien and remanded for trial on the merits of plaintiffs claims. Dep’t of Treasury v Campbell, 107 Mich App 561, 309 NW2d 668 (1981), lv den 413 Mich 935 (1982). Defendants presently appeal from the result of that remand.
Pyk is a party to this action because it sought and received funds pursuant to its attorney’s lien. The Treasury Department alleges that it had priority over the funds due to its tax lien.
The parties discuss numerous issues, one of which is dispositive.
The trial court had granted plaintiffs motion for accelerated judgment on the grounds that exclusive jurisdiction belonged to the Court of Claims for the violation of defendant’s civil rights. 42 USC 1983. We find this decision to be in error. State courts have concurrent jurisdiction over § 1983 claims.
State courts have concurrent jurisdiction over § 1983 claims. Martinez v California, 444 US 277; 100 S Ct 553; 62 L Ed 2d 481 (1980). In Maine v Thiboutot, 448 US 1, 3, fn 1; 100 S Ct 2502; 65 L Ed 2d 555 (1980), the Court observed that whether Congress has obligated the States to entertain § 1983 actions remained an unanswered question. This Court has recognized the concurrent jurisdiction of courts of this state over § 1983 claims. Ledsinger v Burmeister, 114 Mich App 12, 25; 318 NW2d 558 (1982), Dickerson v Warden, Marquette Prison, 99 Mich App 630, 634; 298 NW2d 841 (1980). [Karchefske v Dep’t of Mental Health, 143 Mich App 1, 10, n 13; 371 NW2d 876 (1985). See also Gordon v Sadasivan, 144 Mich App 113, 119; 373 NW2d 258 (1985).]
Accordingly, we reverse the grant of accelerated judgment on this issue.
As the other issues raised may again surface during the trial, we will briefly discuss them.
Defendants argue that the trial court erred in granting plaintiff’s motions for summary judgment pursuant to GCR 1963, 117.2. We find no error. Defendants’ legal position is untenable as a matter of law so that no factual development can possibly justify a right of recovery. Fillare v Union Oil Co of California, 143 Mich App 520, 523; 372 NW2d 606 (1985). At the time plaintiff sought judgment, it was not seeking equitable relief; rather it was seeking money damages against defendants, specifically pyk, for having negotiated the irs check, the subject of a valid superior tax lien. Thus defendants’ equitable defenses were no longer valid. Nor is collateral estoppel a valid defense as this specific issue (of pyk’s liability) has not been previously litigated. The defense of equitable estoppel does not aid defendants as defendants do not allege that they relied upon the misrepresentation of a material fact. Frank v Equitable Life Assurance Society of the United States, 136 Mich App 616; 358 NW2d 21 (1984).
Defendants also argue that it was error to grant plaintiff’s motion for summary judgment on their counterclaim. Defendants asserted that the General Sales Tax Act, MCL 205.51 et seq.; MSA 7.521 et seq., is unconstitutional on its face and as applied. We find no error. Jeopardy tax assessments are valid, Gianotta v Holderid, 143 Mich App 249; 372 NW2d 326 (1985).
Plaintiff’s second amended complaint sought a declaratory judgment that its state tax lien was superior to the attorney’s lien asserted by pyk and money damages from defendants for negotiating the check which was the subject of the state tax lien. Defendants moved for summary judgment on the grounds that the pleadings no longer presented any actual controversy and the issue was moot, GCR 1963, 116.1(2), now MCR 2.116(C)(4). The trial court denied the motion since there was still an issue as to the validity of the jeopardy assessment and an issue as to where those funds are. We find no error in the trial court’s decision. We believe that the issue is not moot and that there is an issue. Smolen v Dahlmann Apts, Ltd, 127 Mich App 108; 338 NW2d 892 (1983).
Pyk’s motion for summary judgment based on plaintiffs failure to state a claim, GCR 1963, 117.2(1), now MCR 2.116(C), was denied. We do not find error in this decision of the trial court. We cannot say that the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Cramer v Metropolitan Savings Ass’n (Amended Opinion), 136 Mich App 387; 357 NW2d 51 (1984).
Defendants moved for summary judgment pursuant to GCR 1963, 117.2(2) and (3), now MCR 2.116(C)(9) and (10), claiming that the money was illegally seized, the money was the basis for the assessment, and the assessment was rescinded by letter dated April 1, 1975, from the Department of Treasury. We find that the motion was properly denied. The jeopardy assessments were not based on the seizure of the money but on records properly seized by police. The validity of the assessment was upheld in a final unappealed decision of the State Board of Tax Appeals and these assessment statutes have been held constitutional. Gianotta v Holderid, supra.
Defendants also argue that there was error in the court’s refusal to sever the claims and have separate trials as there were no questions of fact for the jury and the remaining legal issues were narrowed to enforcing the lien and tracing the funds.
The decision as to separate trials rests within the sound discretion of the trial court and should be ordered only upon a most persuasive showing. Detloff v The Taubman Co, Inc, 112 Mich App 308; 315 NW2d 582 (1982). We find no abuse of discretion in the trial court’s refusal.
Defendants argue that the trial court never ruled on several of their motions and that this would require reversal. Defendants’ conclusion that the trial court simply ignored the motion is not well-taken. Defendants had filed a motion to strike the appearance of Mr. Brockman as attorney for the state on the ground that defendants intended to call him as a witness. And defendants filed a motion seeking the return and the suppression of the money given to the state on the grounds that the jeopardy assessments were based upon illegally seized evidence. The trial court entered an order on June 25, 1983, denying hearing on the motions.
We note that all claims were disposed of by summary or accelerated judgment and, thus, there were no issues to be tried and no reason to disqualify the attorney. Any error is harmless as defendants’ arguments for relief from orders and judgments have been considered in this appeal.
Accordingly, the trial court’s decision as to plaintiff’s claim is affirmed. The grant of summary judgment as to defendants’ § 1983 claim is reversed. We remand for proceedings consistent with this opinion. We do not retain jurisdiction.
Affirmed in part, and reversed in part.
The other proceedings involving this action are Dep’t of Treasury v Campbell, 77 Mich App 435; 258 NW2d 508 (1977), Dep’t of Treasury v Campbell, 107 Mich App 561; 309 NW2d 668 (1981), lv den 413 Mich 935 (1982), Campbell v United States, 592 F2d 309 (CA 6, 1976), and Campbell v Shearer, 732 F2d 531 (CA 6, 1984). There are also two unpublished decisions per curiam of the Court of Appeals: Campbell v Dep’t of Treasury, decided December 7, 1979 [Docket No. 27106], and Campbell v Dep’t of Treasury (On Remand), decided July 3, 1980 [Docket No. 27106].
Campbell had a difficult time obtaining the informal hearing. See Campbell v Dep’t of Treasury, 77 Mich App 435; 258 NW2d 508 (1977), and the unpublished opinions per curiam, supra. However this problem is not relevant to this appeal.
Now MCR 2.116(C). | [
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Per Curiam.
The people of the State of Michigan appeal by leave granted from the entry of an order suppressing evidence against defendant Daisy Cruz. We reverse.
Defendant was charged with possession with intent to deliver over 650 grams of cocaine, MCL 333.740l(2)(a)(i); MSA 14.15(7401)(2)(a)(i). After the preliminary examination, defendant moved for the suppression of evidence of the cocaine which was seized from the trunk of her car. The matter was submitted upon the following facts obtained at the examination:
On May 7, 1986, Henry C. Scott, a Detroit police officer, received information from an informant that a pregnant Hispanic woman named Daisy would arrive on that date at the Red Carpet Inn on Southfield Road, Lincoln Park, in a black and gray Chevrolet, Michigan license number 905 RBF, carrying ten kilograms of cocaine. Scott testified that he had known the informant for about two years, during which time the informant had given him credible information on approximately ten to twelve occasions, the majority of which led to arrests and convictions. Scott informed his crew of this tip and set up surveillance of the motel.
After 4 p.m. on that date, officers conducting the surveillance observed defendant arrive at the motel in a car matching the description provided by the informant. Defendant went to the office, returned to her car approximately fifteen minutes later and parked the car. Defendant then removed a brown suitcase and a brown garbage bag from the trunk and entered the motel complex.
Defendant came back to the car after 7 p.m. that evening and, after returning the garbage bag to the trunk, drove away. Defendant was followed by the surveillance unit to an address on Northlawn in Detroit. Defendant parked the car, opened the trunk and removed two brick-sized objects in light brown wrapping from the garbage bag. Defendant took the "bricks” into the house and, about thirty minutes later, left the house empty-handed. Defendant then drove back to the motel.
At approximately 11:20 a.m. the following morning, defendant came out of the motel carrying the garbage bag. As defendant placed the bag into the trunk of her car, Sergeant Joseph Piersante drove by the vehicle and observed defendant arranging the bag in the trunk and stacking up bundles the size of bricks in light brown plastic wrappings. It is unclear whether the bricks were stacked and stored in the garbage bag itself or outside the bag.
Defendant then drove to a Big Boy Restaurant on Southfield Road, where she drove around the parking lot twice, parked and went into the restaurant. Defendant left the restaurant fifteen minutes later with a male. As defendant drove off, the man followed her in his own car.
Based on his experience as a narcotics officer, Piersante believed defendant was transporting kilo bricks of cocaine and was about to enter into a narcotics transaction. Accordingly, defendant was pulled over on Southfield Road and was escorted from her car. A narcotics dog at the scene was taken to the car and became agitated as it approached the trunk. Police officer Gregory Woods, without a warrant, then opened the trunk, where he found a brown garbage bag which contained eight bricks wrapped in light brown plastic. The bricks were subsequently tested and determined to be cocaine.
As stated, the trial court, based upon such facts, granted the motion and suppressed evidence of the cocaine.
Generally, a search without a warrant is considered unreasonable per se under the Fourth Amendment and is invalid unless it falls within one of the few well-defined exceptions to the warrant requirement. People v Catania, 427 Mich 447, 453; 398 NW2d 343 (1986). The burden of proof is upon the prosecution to establish that one such exception to the warrant requirement is applicable to the instant case. A ruling on a motion to suppress evidence will not be set aside unless it is clearly erroneous. A ruling is clearly erroneous when a reviewing court is firmly convinced a mistake has been made. People v Alfafara, 140 Mich App 551, 556; 364 NW2d 743 (1985).
On appeal, the people argue that the case is controlled by United States v Ross, 456 US 798; 102 S Ct 2157; 72 L Ed 2d 572 (1982). In Ross, the United States Supreme Court held that, under the automobile exception to the warrant requirement, an officer who has probable cause to believe that there is contraband somewhere in an automobile may search the entire vehicle, as well as any containers found therein. 456 US 825. See also United States v Johns, 469 US 478; 105 S Ct 881; 83 L Ed 2d 890 (1985).
On the other hand, defendant argues that the matter is properly controlled by United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), where police officers, with probable cause to believe that a footlocker contained contraband, seized and searched it without a warrant as soon as it had been placed in the trunk of an automobile. The Supreme Court held that the search of the footlocker was unreasonable and could not be legitimized by reasoning similar to that which justifies the "automobile exception” to the warrant requirement. 433 US 11-12. Implicit in its holding though was the belief that the police had no probable cause to believe that the automobile, as opposed to the footlocker, contained contraband. See United States v Johns, supra.
In Ross, supra, the Court distinguished the case before it, where the focus was on the entire vehicle, from Chadwick by adopting the language of Chief Justice Burger’s concurrence in Arkansas v Sanders, 442 US 753; 99 S Ct 2586; 61 L Ed 2d 235 (1979), a case similar to Chadwick:
"[I]t was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband [in Sanders]. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an 'automo bile’ exception case. The Court need say no more.” 442 US 766-767. [456 US 813.]
More recently, the Supreme Court relied on Ross in reversing an order which suppressed evidence found in a package situated in a pickup truck used by defendant and uncovered during a search without a warrant. In United States v Johns, supra, United States Customs officers, during a surveillance of a suspected drug smuggling operation, observed two pickup trucks travel to a remote airstrip near the Mexican border. There, the trucks were observed as they approached two successive airplanes which had landed. After a short time on the ground, each aircraft departed. Two of the officers then approached the trucks and ordered the suspects to come from behind the trucks and lie on the ground. These officers, now smelling the odor of marijuana, looked in the back of the trucks, where they observed packages wrapped in a manner which led them to believe that they contained smuggled marijuana. The suspects were consequently arrested and the trucks were taken to law enforcement headquarters, where officers, without a warrant, took samples of a substance that was later determined to be marijuana.
Rejecting the contention that Ross was inapplicable to the resolution of the case, the Court reasoned that the officers had probable cause to search the vehicles themselves once they detected the distinct odor of marijuana. Given this probable cause, the search of the package without a warrant was permissible:
Given their experience with drug smuggling cases, the officers no doubt suspected that the scent was emanating from the packages that they observed in the back of the pickup trucks. The officers, however, were unaware of the packages until they approached the trucks, and contraband might well have been hidden elsewhere in the vehicles. We agree with the Court of Appeals, . . . that the Customs officers had probable cause to believe that not only the packages but also the vehicles themselves contained contraband. [469 US 482.]
Similarly, here, we conclude that at the time of the search the officers had probable cause to believe that the vehicle itself contained contraband. The officers had initially received information from a reliable informant that a petite, pregnant Hispanic female named Daisy, driving a black and gray four-door Chevrolet with a specific Michigan license plate, would arrive from Florida at the Red Carpet Inn with over ten kilograms of cocaine in her possession. This information cast suspicion on defendant and her automobile, not on any specific container.
As predicted, defendant, matching the physical description provided by the informant, timely arrived at the hotel in a Chevrolet matching the description given. At that point, still before the focus turned to the garbage bag, the police, in our opinion, had probable cause to search her car. We do not believe that such probable cause dissipated when, after observing defendant’s suspicious behavior, it became apparent that defendant was dealing drugs from the garbage bag in the trunk of the car. It was still possible that contraband might well have been hidden elsewhere in the vehicle at the time of the search.
Under the circumstances of the case, we believe that the lower court’s conclusion that officers had probable cause to search only the garbage bag was clearly erroneous. We therefore vacate the order of suppression and remand the matter for further proceedings not inconsistent with this opinion.
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Per Curiam.
By way of interlocutory appeal, defendant was granted leave to appeal from an order denying his motion to dismiss the charge against him of one count of gross indecency with another male, MCL 750.338; MSA 28.570.
The facts giving rise to this case are essentially undisputed. On October 25, 1985, at approximately 2:45 p.m., a state police trooper, acting in an undercover capacity, was at the entryway of a toilet stall in a public restroom at a highway rest area. Defendant entered the restroom and struck up a conversation with the trooper. After they exchanged small talk, the trooper advised defendant that he had an appointment to keep and had to leave. Defendant leaned across the entryway and continued talking to the trooper. Defendant then began stroking himself in the groin area and stated that he wanted to play with the trooper. When the trooper asked what defendant meant, defendant put his arm around the trooper’s shoulder and with his other hand grabbed and began to massage the trooper’s groin area. According to the trooper, defendant again stated "let’s play.” The trooper advised defendant of his official capacity and placed defendant under arrest.
Defendant was bound over to circuit court on one count of gross indecency, one count of assault with intent to commit burglary or any other fel ony, MCL 750.87; MSA 28.282, and one count of assault with intent to commit second-degree criminal sexual conduct, MCL 750.520g(2); MSA 28.788(7)(2).
In circuit court defendant moved to quash the information with respect to all three counts. The motion was granted except as to the gross indecency charge.
Defendant contends on appeal that the facts of this case, as adduced by the evidence presented at the preliminary examination, i.e., his touching of the trooper over his clothing in the genital area, as a matter of law do not establish a violation of the statute prohibiting gross indecency between males, MCL 750.338; MSA 28.570. We agree and reverse defendant’s bindover.
MCL 750.338; MSA 28.570 provides:
Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.
As can be seen, gross indecency is not defined by the terms of the statute.
A conflict exists over whether gross indecency is defined by a "common sense of society” test articulated by this Court in People v Dexter, 6 Mich App 247, 253; 148 NW2d 915 (1967), or whether the term carries the meaning offered by Justice Levin in People v Howell, 396 Mich 16, 24; 238 NW2d 148 (1976). In Dexter the defendant was convicted, inter alia, of attempting to procure the commission of an act of gross indecency, specifically, fellatio: In rejecting a claim that the gross indecency statute was unconstitutionally vague, this Court stated:
Statutes of the indecent liberties or gross indecency type penalize "conduct that is of such character that the common sense of society regards it as indecent and improper.” People v Szymanski, 321 Mich 248, 252 [32 NW2d 451 (1948)]. The gross indecency statute is not vague or bereft of guidelines. [Dexter, supra, p 253.]
In part n of Howell, supra, Justice Levin rejected the common sense of society test employed in Dexter, supra, stating at 396 Mich 24:
Accordingly, we reject the construction of the Court of Appeals in Dexter and construe the term "act of gross indecency” to prohibit oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public.
Since part 11 of Howell was approved by only three justices, it is of no precedential value. See Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976); In re Perry, 148 Mich App 601, 609; 385 NW2d 287 (1986), lv den 426 Mich 867 (1986). Under these circumstances it appears, and subsequent panels of this Court have held, that the common sense of society test remains viable after Howell, though somewhat limited. People v William Clark, 68 Mich App 48, 52-53; 241 NW2d 756 (1976); People v Masten, 96 Mich App 127, 132; 292 NW2d 171 (1980), rev’d on other grounds 414 Mich 16; 322 NW2d 547 (1982).
Specifically, post-jDevter appellate decisions that have construed the gross indecency statute at issue have arisen from a factual background in which fellatio occurred. The statute has long been applied to cases involving forced fellatio and fellatio with a minor. Howell, supra, p 21; Dexter, supra; Masten, supra; People v Kalchik, 160 Mich App 40; 407 NW2d 627 (1987). Prosecutions for sodomy, however, have always been brought under a separate statute, MCL 750.158; MSA 28.355. See Dexter, supra; People v Schmitt, 275 Mich 575; 267 NW 741 (1936). No cases were found in which another sexual act, i.e., the massage of fully covered male genitalia, has occurred.
Similarly, prosecutions brought under other gross indecency statutes which also do not define an "act of gross indecency,” namely MCL 750.338a; MSA 28.570(1) (gross indecency between females) and MCL 750.338b; MSA 28.570(2) (gross indecency between a male and a female) have involved acts of fellatio or cunnilingus. People v Livermore, 9 Mich App 47, 56-59; 155 NW2d 711 (1967) (sexual conduct between two females); People v McCaleb, 37 Mich App 502; 195 NW2d 17 (1972), lv den 389 Mich 784 (1973) (fellatio); People v Rea, 38 Mich App 141; 195 NW2d 809 (1972), lv den 388 Mich 795 (1972) (cunnilingus); People v Roy Edwards, 58 Mich App 146; 227 NW2d 263 (1975), reversed in light of People v Howell, supra, 396 Mich 825; 238 NW2d 536 (1976) (fellatio); People v Towlen, 66 Mich App 577; 239 NW2d 668 (1976), lv den 397 Mich 831 (1976) (fellatio).
In each of the above cases (except Livermore, which did not involve a determination of whether the sexual act committed constituted gross indecency), the trier of fact determined that the act was grossly indecent in light of community mores. In People v Danielac, 38 Mich App 230; 195 NW2d 922 (1972), app dis, 389 Mich 545; 208 NW2d 167 (1973), and People v Holland, 49 Mich App 76; 211 NW2d 224 (1973), however, this Court determined, as a matter of law, that the sexual acts at issue did not constitute acts of gross indecency. In Da-nielac the Court found that sexual intercourse between a male and female in the presence of others did not constitute an "act of gross indecency.” In Holland, the Court found that the defendant’s act of having his trousers open and having his female companion’s hand on his penis did not constitute an act of gross indecency.
Since this Court, following the common sense of society test articulated in Dexter, supra, has consistently applied the gross indecency statute at issue and the other gross indecency statutes to cases involving oral sexual acts, we decline, in this instance, to apply the statute to the fact situation herein involving the defendant’s touching of another’s genital area over clothing. In Holland, supra, the panel concluded:
If an act of intercourse is not "gross indecency” [see Danielac, supra] we do not see how the action with which defendant is charged could possibly constitute a violation of the statute. We make no comment regarding whether the alleged facts might constitute a violation of some other statute. [Holland, supra, p 79.]
Likewise, we do not see how the act with which defendant is charged herein could constitute a violation of the statute. However, we make no comment regarding whether the alleged act might constitute a violation of some other statute. Accordingly, we reverse and vacate the circuit court’s order denying defendant’s motion to quash the information charging defendant with gross indecency.
In view of our disposition of this issue, resolution of defendant’s remaining allegation of error is unnecessary. Further, we decline to review the issues raised by the prosecution in its appellate brief since these issues are not properly before this Court. MCR 7.205, 7.207.
Reversed.
This construction makes it unnecessary either to determine whether the Legislature may constitutionally proscribe sexual conduct between consenting adults in private or to make distinctions regarding such conduct between married persons, persons living with each other, dating couples, and between persons of the same sex.
Michigan recently enacted a criminal sexual conduct law (1974 PA 266; MCL 750.520a et seq.; MSA 28.788(1) et seq.). There is an overlap between the gross indecency statute (n 2) [MCL 750.338; MSA 28.570] and this enactment insofar as the new statute proscribes "sexual penetration” and "sexual contact” where (1) the victim is under 13 years of age; (2) the victim is between 13 and 16 and resides in the same household as the actor or is related by blood or affinity to the actor or the actor used a position of authority to coerce the victim to submit; (3) the conduct occurs under circumstances involving the commission of any other felony; or (4) force or coercion is used.
The statute at issue in Howell (assault with intent to commit certain crimes including gross indecency [n 1][MCL 750.85; MSA 28.280]) was repealed by 1974 PA 266 effective November 1, 1974. The people allege that Howell committed the proscribed act on April 30, 1973.
On the other hand, the commentary to the Michigan Criminal Jury Instructions notes the confusion in this area but appears to rely upon Justice Levin’s definition of gross indecency. See, CJI, pp 20-103 -20-110. | [
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Per Curiam.
Defendant was charged with second-degree criminal sexual conduct, MCL 750.520(c)(1)(a); MSA 28.788(3)(l)(a). Following a jury trial in the Washtenaw Circuit Court, defendant was convicted of assault and battery, MCL 750.81; MSA 28.276. Defendant was sentenced to serve ninety days in the Washtenaw County Jail and was given credit for forty-five days served. Defendant appeals as of right.
The charge stemmed from an incident which occurred April 27, 1984, at a Meijer’s Thrifty Acre store in Pittsfield Township. According to the victim, a ten-year-old girl, she went to Meijer’s with her mother and brother on that date. She wandered off to the shoe repair shop and was looking at pins, when defendant came up behind her and placed his hand on her lower right buttock. When she turned around, defendant laughed and walked away. The victim told her mother, who contacted store security. The security officer saw defendant entering a parked station wagon and took down the license plate number. A check with the Secretary of State revealed that the car was registered to Dorothy Ward who lived in a trailer park in Ypsilanti Township. The manager of the trailer park informed the police that a man fitting defendant’s description resided on lot 186.
Detective Claude J. Jackson of the Pittsfield Township Police Department then contacted defendant and asked if he would submit to a lineup or be willing to be photographed. Defendant refused. Jackson thereupon procured a search warrant to seize the "person of John Robert Johnson, also known as Edward Woods.” The purpose of the search warrant was to either obtain a photograph of defendant or to have defendant physically come down to the police station and appear in a physical lineup. At first defendant refused to do either, but after Jackson told him he had to do one or the other, defendant submitted to the photograph. Jackson took three photographs of defendant and put together a photographic lineup. The lineup was shown to the victim, who identified defendant as the one who touched her. This evidence was admitted at defendant’s trial.
Defendant moved twice before the trial to suppress the search warrant, the photographs, and any resulting identification. The trial court denied the motion, stating that even if it was not proper to obtain a search warrant to photograph defendant, the police’s action could be upheld under the inevitable discovery rule, since they could have photographed defendant in a public place.
On appeal, defendant claims that the trial court erred in denying his motion to quash the search warrant. We agree.
MCL 780.652; MSA 28.1259(2) states:
A warrant may be issued to search for and seize any property or other thing which is either:
(a) Stolen or embezzled in violation of any law of this state.
(b) Designed and intended for use or which is or has been used as the means of committing a criminal offense.
(c) Possessed, controlled or used wholly or partially in violation of any law of this state.
(d) Evidence of crime or criminal conduct on the part of any person.
(e) Contraband.
(f) The bodies or persons of human beings or of animals, who may be the victims of a criminal offense.
(g) The object of a search warrant under any other law of this state providing for the same. If a conflict exists between this act and any other search warrant law, this act shall be deemed controlling.
Defendant argues that a warrant to photograph a suspect or to compel him to submit to a lineup does not fall within any of the subsections of the statute. The people claim that the warrant was proper under subsection (d), contending that a search warrant to obtain a photograph for future use in a lineup is issued to obtain evidence of crime or criminal conduct on the part of the defendant. The prosecution draws an analogy to blood samples and fingerprints, stating that such evidence also identifies perpetrators of a crime. The prosecution cites People v Lovett, 85 Mich App 534; 272 NW2d 126 (1978), in which samples of the defendant’s blood, pubic hair, saliva, and semen incriminated the defendant since (1) pubic hairs were found on the victim’s clothing, (2) a vaginal swab taken from the victim indicated that she had been raped by a person with type o blood, and (3) it had been determined that the victim had been raped by a secretor, and the saliva sample indicated whether the defendant was a secretor.
The evidence obtained in Lovett was incriminating and tended to identify the defendant, but it did not identify him in the "pure” sense of a pretrial lineup. In the instant case, the evidence seized with the search warrant was used solely to identify defendant, not to incriminate him. The case law cited by the prosecution does not support its contention that the photograph was evidence of a criminal activity. In abolishing the "mere evidence” rule, the United States Supreme Court stated that, in order for an item to be subject to seizure, there must be a nexus between the item and the criminal behavior. Warden v Hayden, 387 US 294, 306-307; 87 S Ct 1642; 18 L Ed 2d 782 (1967). There is no nexus between a photograph that is obtained for use in a photographic lineup and criminal behavior. Therefore, the search warrant was issued for an improper purpose and is invalid.
The trial court denied the motion to suppress on the ground that the inevitable discovery rule applied, stating that the police could have taken a photograph of defendant in a public place. The inevitable discovery rule was recognized by the United States Supreme Court in Nix v Williams, 467 US 431; 104 S Ct 2501; 81 L Ed 2d 377 (1984). In Nix, the Court held that evidence obtained in violation of the Constitution could still be admitted at trial if the prosecution established by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. Nix, 467 US 444. In the.instant case, the prosecution offered no evidence that the police were making efforts to obtain defendant’s photograph by means other than the search warrant. Thus, the inevitable discovery rule should not have been used to uphold the search warrant. The trial court should have granted defendant’s motion to suppress the search warrant, and the subsequent identification should have been suppressed under the fruit of the poisonous tree doctrine. People v Essa, 146 Mich App 315, 319-320; 380 NW2d 96 (1985), lv den 424 Mich 892 (1986), cert den, — US —; 106 S Ct 3313; 92 L Ed 2d 726 (1986).
Defendant also claims that the trial court erred in denying his motion to quash the information on the ground that there was insufficient evidence at the preliminary examination for the magistrate to find that defendant touched the victim for the purpose of sexual arousal or gratification. This claim is rendered moot because defendant was actually convicted of the lesser offense of assault and battery and thus acquitted of second-degree criminal sexual conduct. People v Blackburn, 135 Mich App 509, 521; 354 NW2d 807 (1984), lv den 422 Mich 907 (1985), cert den, — US —; 106 S Ct 397; 88 L Ed 2d 41 (1985). In his appellate brief, defendant even acknowledges that the evidence supported a charge of assault and battery.
Because we hold that the search warrant was issued for an improper purpose under MCL 780.652(d); MSA 28.1259(2)(d) and that the trial court erred in denying defendant’s motion to quash the search warrant, the photographs, and the subsequent identification, defendant’s conviction is reversed.
Reversed. | [
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Per Curiam.
The prosecutor appeals by leave granted after the circuit court granted defendant’s motion to quash the information, following which it denied the prosecutor’s motion for reconsideration. We affirm the decision of the circuit court.
The information that the circuit court quashed had charged defendant with five counts of uttering and publishing, MCL 750.249; MSA 28.446. The circuit judge determined that the magistrate had abused his discretion by binding the defendant over because all of the elements of the crime were not supported by the evidence.
The purpose of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe that the defendant committed it. MCL 766.13; MSA 28.931; People v Duncan, 388 Mich 489, 499; 201 NW2d 629 (1972). The magistrate is not required to find guilt beyond a reasonable doubt, but there must be evidence on each element of the crime charged or evidence from which those elements may be inferred. People v Sesi, 101 Mich App 256, 262; 300 NW2d 535 (1980), lv den 411 Mich 1077 (1981).
The trial court reviewing the magistrate’s decision to bind over may not disturb the decision unless the defendant can demonstrate a clear abuse of discretion. People v Shipp, 141 Mich App 610, 612; 367 NW2d 430 (1985), lv den 422 Mich 934 (1985). This Court also reviews the decision of the examining magistrate to bind over for an abuse of discretion. People v Dyer, 157 Mich App 606, 608; 403 NW2d 84 (1986). In determining whether the magistrate abused his discretion, the reviewing judge considers the entire record made at the preliminary examination by reviewing the evidence that was presented to the magistrate at the examination. People v Taurianen, 102 Mich App 17, 26; 300 NW2d 720 (1980).
The prosecutor now argues that the circuit court erred by quashing the information and determining that the magistrate had abused his discretion. The basis for his argument is that the circuit court erroneously determined the elements of uttering and publishing.
MCL 750.249; MSA 28.446 provides:
Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, [MCL 750.248; MSA 28.445] knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony ....
MCL 750.248; MSA 28.445 provides in relevant part:
Any person who shall falsely make, alter, forge or counterfeit any public record, or any certificate, return or attestation of any clerk of a court, public register, notary public, justice of the peace, township clerk, or any other public officer, in relation to any matter wherein such certificate, return or attestation may be received as legal proof, or any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order, acquittance of discharge for money or other property, or any waiver, release, claim or demand, or any acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for • the payment of money, or any accountable receipt for money, goods or other property, with intent to injure or defraud any person, shall be guilty of a felony
The law of this jurisdiction provides that the crime of uttering and publishing is established by proof that (1) the accused knew that the instrument was false, (2) the accused had an intent to defraud, and (3) the forged instrument was presented for payment. People v Buchanan, 107 Mich App 648, 652; 309 NW2d 691 (1981).
Although defendant raises the question whether the writings—in this case, the subject invoices— are even included within MCL 750.249; MSA 28.446 and MCL 750.248; MSA 28.445, these statutes have been given a liberal construction. The question most often arising on the character of the instrument relates' not so much to the matter of the generic classification as to the more specific inquiry whether the instrument imports or embodies some one or more of the other elements of the crime, especially falsity and, on the assumption of genuineness, efficacy to affect the rights of others. People v Hester, 24 Mich App 475, 478-479; 180 NW2d 360 (1970), citing 36 Am Jur 2d, Forgery, § 27, pp 696, 697.
Even were we to determine that an invoice can properly be the subject of the crime of uttering and publishing, we would nonetheless he compelled to affirm the order of the circuit court quashing the information, for one of the elements of the offense—presentment for payment—was not demonstrated at the preliminary examination. The prosecutor has conceded that proving that the invoices were presented for payment would be impossible to do. The evidence showed that the subject invoices had previously been paid.
Because evidence on each element of uttering and publishing was not presented to the magistrate, Sesi, supra, we find that he abused his discretion in binding defendant over on five counts of that offense. Accordingly, we affirm the circuit court’s order granting defendant’s motion to quash.
Our disposition of this action renders it unnecessary to address other issues raised by the prosecutor. We also note that our determination in no way impedes the prosecutor from again exercising his authority and charging a lesser offense. See People v Miklovich, 375 Mich 536, 539; 134 NW2d 720 (1965).
Affirmed.
Defendant thereafter filed a motion to affirm.
Defendant was originally charged with six counts of forgery, MCL 750.248; MSA 28.445; six counts of uttering and publishing, MCL 750.249; MSA 28.446; and one count of obstructing a police officer in the performance of his duty, MCL 750.479; MSA 28.747.
At the preliminary examination, the prosecutor dismissed one count each of forgery and uttering and publishing, after which the magistrate dismissed all charges other than five counts of uttering and publishing. | [
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Per Curiam.
Pursuant to a jury verdict, a judg ment in the sum of $433,052 was entered in favor of plaintiff Electro-Tech, Inc. Plaintiff’s claim was brought under 42 USC 1983. Defendant City of Westland appeals as of right.
Jack Beauchamp is the president and sole stockholder of Electro-Tech, a Michigan corporation, located in the City of Westland along Newburgh Road. Electro-Tech manufactures electrical and electronics products, primarily as a contractor to the United States military.
In October, 1978, Electro-Tech contracted with H. F. Campbell, a defendant whose case was settled prior to trial. H. F. Campbell was to build additional manufacturing facilities at the New-burgh site and complete the building by February 13, 1979. A site plan was drawn up by Campbell and approved by Beauchamp.
In order to get a building permit, Campbell submitted the site plan for review by various city departments. The site plan would have to be approved by the city planning commission, which would then make a recommendation to the city council for final approval. A meeting of representatives from the city departments was held on February 21, 1979, to explain to Campbell what steps would be required for final approval of the building permit. This lawsuit turns on the city’s requirement that Electro-Tech dedicate to the city a twenty-seven foot strip of land adjacent to New-burgh Road. If Electro-Tech did not dedicate this strip, it would not receive a permit to build the addition on the back portion of its lot.
Beauchamp learned of the dedication requirement through a letter to Campbell from the city, dated March 22, 1979. Beauchamp attended four or five city council meetings throughout the spring, objecting to the city’s demand for the dedication. The city council approved the site plan subject to five contingencies, ail of which were met except for the dedication. At the June 11, 1979, hearing, Beauchamp again refused to dedicate the parcel as requested.
As a result of not obtaining approval of the site plan and subsequent building permit, Campbell could not proceed with construction of Electro-Tech’s addition. Without the additional work space, Electro-Tech contended it could not bid on several anticipated proprietary-item contracts and was forced to subcontract work on existing contracts in order to meet government deadlines.
In October, 1979, the city sent Electro-Tech a letter offering to purchase the twenty-seven foot strip. Beauchamp refused the offer, feeling that the suggested price was too low and that selling the property would not help him obtain the building permit. The city began a condemnation action in Wayne Circuit Court in January, 1980. That action resulted in a consent judgment, by which Electro-Tech received four times the sum the city had offered in October.
Electro-Tech filed this action against the city on May 21, 1982, alleging violations of state and federal law, specifically, that the city unlawfully refused to grant the plaintiff a building permit. At a hearing on pretrial motions, the trial court dismissed Electro-Tech’s state-law claims as barred by governmental immunity. Electro-Tech proceeded to trial on its claims under 42 USC 1983, Following the entry of the judgment based on the jury verdict, the city filed a motion for a judgment notwithstanding the verdict, which motion was denied.
Defendant raises four issues on appeal. We respond only to the following issue since it is disposi-tive of this appeal. Defendant argues that plaintiff should not have been permitted to proceed with trial under § 1983, because plaintiff failed to exercise existing state remedies.
42 USC 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Two elements are essential to a cause of action under § 1983: (1) the conduct complained of must have been carried out under color of state law; and (2) the conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the federal constitution or laws. Collier v City of Springdale, 733 F2d 1311 (CA 8, 1984), cert den 469 US 857 (1984). The first requirement has been met here. We have difficulty, however, finding a constitutional right of which plaintiff has been deprived.
Plaintiff claims it was denied due process. A deprivation of a due process right, however, does not occur merely because a local planning board rejects a proposed development for erroneous reasons or makes demands exceeding its authority. In Corder v City of Sherwood, 579 F Supp 1042 (ED Ark, 1984), plaintiff sued the city under 42 USC 1983 alleging the defendant city’s refusal to issue building permits resulted in a violation of plaintiff’s constitutional rights under the Fourteenth Amendment. In finding that the plaintiff failed to state a claim under § 1983, the court held:
[U]nder Arkansas law, the chancery courts have the power to review zoning decisions and grant relief when a zoning decision is arbitrary, capricious, or unreasonable. An appeal from an adverse decision could be pursued through the Arkansas state court system. Therefore, the plaintiffs’ right to judicial review of a city council’s decision by state courts affords them protection from arbitrary, capricious, or unreasonable action and therefore affords them due process, as well as equal protection. [579 F Supp at 1044.]
Likewise in Chiplin Enterprises, Inc v City of Lebanon, 712 F2d 1524 (CA 1, 1983), a real estate developer brought suit against the city and others for damages claimed for a five-year delay between application and grant of a building permit. The court ruled that no deprivation of a constitutional right occurred since the state court was available to correct the error.
Plaintiff claims that by imposing a condition for it to dedicate the twenty-seven foot strip in exchange for site plan approval and a building permit the city was practicing extortion and depriving plaintiff of the use of its property without due process of law. We find further reference to Chiplin instructive:
[I]t is axiomatic that not every violation of a state statute amounts to an infringement of constitutional rights. Paul v Davis, 424 US 693, 700; 96 S Ct 1155, 1160; 47 L Ed 2d 405 (1976). The courts have rejected similar attempts to create a constitutional question out of a state law violation in the land use area. E.g., Sucesion Suarez v Gelabert, 701 F2d 231, 233 (CA 1, 1983); Creative Environments [Inc v Estabrook, 680 F2d 822, 833 (CA 1, 1982)]; Couf v DeBlaker, 652 F2d 585, 590, n 11 (CA 5, 1981), cert den 455 US 921 (1982); Crocker v Hakes, 616 F2d 237, 239, n 2 (CA 5, 1980). The claim that denial of the permit was improperly motivated, unsupported by an allegation of the deprivation of a specific constitutional right, simply raises a matter of local concern, properly and fully reviewable in the state courts. [712 F2d at 1527.]
Among the cases relied upon by plaintiff in support of its position is Harrison v Springdale Water & Sewer Comm, 780 F2d 1422 (CA 8, 1986). In Harrison landowners sued the city to recover damages for a discharge of sewage into their blueberry fields. In response the city offered to purchase the farm, threatening to condemn it if the offer was rejected. The eighth circuit held that the landowners could sue under § 1983 for violation of their First Amendment rights. Harrison is distinguishable because in that case the court found a violation of the plaintiff’s First Amendment rights; in the instant case plaintiffs have shown no constitutional violation. No case cited by plaintiff held that the initial denial of a building permit for erroneous reasons constitutes a constitutional violation. We note also that the case of Wilson v Beebe, 743 F2d 342 (CA 6, 1984), cited by plaintiff was vacated in 1985 and after a hearing en banc the result was unfavorable to plaintiff’s argument. Wilson v Beebe, 770 F2d 578 (CA 6, 1985).
Plaintiff also challenges defendant’s claim on appeal that adequate state remedies were available to plaintiff since defendant successfully brought a motion for summary disposition of plaintiff’s state-law claims on the basis of governmental immunity. The state claims dismissed because of governmental immunity were essentially tort claims geared toward recovery of damages. We are not holding that plaintiff may not sue under § 1983 because state tort remedies are available. Rather we hold that no violation of constitutional or federal law exists where plaintiff has merely been erroneously denied initial site approval and a building permit by a city council. Plaintiff must look for a review of that decision within the state. It is a review of the city’s decision and not tort remedies which we point out to plaintiff. Another case might be presented if plaintiff had been denied approval in retaliation for exercising his First Amendment rights or because of his race or religion, but denial of site approval, even erroneously or capriciously, does not raise a constitutional issue. State remedies are sufficient to take care of any error.
Remedies available included seeking a writ of mandamus against defendant in circuit court, Bills v Grand Blanc Twp, 59 Mich App 619; 229 NW2d 871 (1975), an appeal to the zoning board of appeals pursuant to Westland Zoning Ordinance No. 129, § 2504, or an appeal from the city’s or zoning board of appeals’ final decision under MCL 125.585; MSA 5.2935. Such actions would not have been barred by governmental immunity had plaintiff elected to pursue them. The above remedies could have adequately redressed the alleged deprivation of plaintiff’s property interests.
Defendant’s motion for summary disposition should have been granted. The trial court’s decision to allow plaintiff to proceed on the § 1983 claim was erroneous.
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Champlin, J.
The bill in this cause was filed July 24, . 1882, to redeem from a foreclosure of a mortgage by advertisement.
The bill is quite lengthy, but the material allegations are that in 1872 the complainant and his brother, the defendant Nathan Norton, were equal owners as tenants in common of a valuable farm in Cass county, upon which there existed a mortgage of $400, held by one Oliver S. Dean, of Massachusetts ; that for a number of years prior to 1881 the complainant had sole possession of the farm, under an arrangement with his brother to pay him rent for his half ; that one Absalom H. Ashton, whose farm joined complainant’s, was anxious to buy complainant out, but complainant would not sell. And the bill alleges that in March, 1881, said Ashton and said Nathan Norton (who was unfriendly to complainant) entered into a fraudulent and collusive scheme for the purpose of defrauding the complainant out of his interest in the farm ; that the scheme consisted in secretly procuring said mortgage to be assigned to said Ashton, and then foreclosing the same in the fraudulent manner particularly described in the bill.
The principal item of fraud relied upon in the proceedings to foreclose is, that the notice of sale was inserted in a newspaper published in a remote part of the county from the premises, and which did not circulate in that neighborhood, for the express purpose of keeping all knowledge of the proceedings from the complainant.
It is alleged that it was agreed between said Ashton and defendant Nathan Norton that Ashton should bid in the farm at $4000, and after deducting the amount of the mortgage, should pay over to Nathan Norton the remainder, who was to retain the same as his part of the spoils; that upon learning that the mortgage had been foreclosed, and the surplus money all paid to Nathan Norton, the complainant brought suit against him to recover one-half of the samei and by garnishing the First National Bank of Cassopolis succeeded in compelling Nathan Norton to pay over one-lialf of the surplus money ; that after the complainant received one-half of the surplus money, facts came to his knowledge showing-that the foreclosure proceedings were fraudulent, and he thereupon tendered to the administrator of said Absalom H. Ashton (Asliton having died in September, 1881) the surplus-money received by him, together with the full amount of said mortgage and costs of foreclosure, including an attorney fee and interest thereon ; that the administrator refused to accept the money, and the complainant then made the same tender to the register of deeds, who also refused to accept the same.
The complainant thereupon filed this bill, and a decree was entered in the court below setting aside the foreclosure sale upon the complainant paying to the administrator the-surplus money received by him and the amount found due-on the mortgage. The complainant, since the decree, has-tendered the said amount to the administrator, who declined to accept the same, and the administrator, together with the-defendants Nathan Norton and Marion Ashton, have appealed to this Court.
The facts are briefly these : In 1871 Nathan Norton, being-the owner of the land, mortgaged it to Latham Hull, and afterwards, in April, 1872, conveyed an undivided half thereof to complainant, who went into possession, and used and occupied the whole under an arrangement with Nathan, by which he was to pay him a certain rent, and the taxes for the use of his half. June 26, 1881, Hull sold and assigned the mortgage to Oliver S. Dean, of Milford, Massachusetts. There seems to have been some disagreement between the brothers, Nathan and David, prior to the spring of 1881, the 'nature or cause of which is not disclosed in the testimony. Absalom H. Ashton was a farmer who owned a farm adjoining the Norton place, and had evinced a desire to purchase it of Nathan and David, and on one occasion offered David $50 an acre for his half interest, which offer David declined.. Afterwards, at the suggestion and with the active assistance of Nathan, he purchased and procured an assignment of the mortgage from Dean for the purpose of foreclosing the same.
The mortgage was assigned to Ashton by Dean April 12, 1881, and in May following he began foreclosure by advertisement in the Dowagiac Republican, which was not the nearest newspaper, and. which was not circulated in the neighborhood of the land. On the 29th of - July, 1881, the land was sold by the sheriff to Ashton for four thousand dollars. The amount then claimed to be due upon the mortgage, including costs, was five hundred and twenty dollars and 83 cents, and the remainder of the bid, three thousand four hundred and seventy-nine dollars and 17 cents, was paid by Ashton to the sheriff, and by him to Nathan Norton, the mortgagor. Nathan deposited this amount in the First National Bank of Cassopolis, and on the next day notified complainant of the foreclosure and sale, and of his own intention to not redeem. Complainant thereupon at once caused the arrest of Nathan for embezzlement, and began suit against him for half the surplus; the criminal proceeding continued in court for some months and was finally dismissed. In the civil suit issue was joined,'and a set-off amounting to a large sum was claimed by Nathan. While this suit was pending, and about the 1st of September, 1881, Ashton died, leaving a number of children and grandchildren who are made defendants. Benaiah A. Tharp was appointed his administrator.
On the 5th of September, 1881, Nathan Norton conveyed all his interest in the land to Marion Ashton, a son of A, II. Ashton, deceased, and on the 5th of October, 1881, Marion Ashton conveyed his interest in the land to the complainant for one hundred and thirty dollars, by an ordinary quitclaim deed containing this recital: “Hereby intending only to convey the interest that I may have acquired through a quitclaim deed from Nathan Norton to me, dated September 5, 1881, and recorded in Liber 56 of Deeds, page 547, and not conveying any interest that I may now have or hereafter acquire through sheriff’s deed to my father on said land now on file in register’s office, on foreclosure of a mortgage recorded in Liber X of Mortgages, page 361, Cass county, Michigan.” Erior to this time (October 5th, 1881,) the complainant had learned that the assignment of the mortgage had been procured through the efforts of his brother Nathan, and that Nathan was holding all the money; and he had examined the list of subscribers in the office of the Dowagiac JSepúiKoan, and had ascertained that the paper was not taken in his neighborhood. On the 20th of February, 1882, the complainant settled with his brother Nathan for one-half of the surplus money, Nathan paying David sixteen hundred dollars, and the balance being allowed by David to Nathan on an indebtedness due from David to him; and the suit was thereupon discontinued.
There can be no doubt from the proofs in this case of the facts that Absalom H. Ashton acquired this mortgage for the purpose of foreclosing the same, and that he so contrived and conducted the proceedings that' David Norton was not made aware of the sale until after it had occurred. His object was to force David to a sale of the premises and to acquire the title himself.
We are not satisfied that the premises did not bring all they were worth on a cash sale. The witnesses vary in their opinions of the value of the farm from forty-five dollars to sixty-five dollars an acre, and so far as the price is concerned it does not appear to have been inadequate. But this does not relieve Absalom H. Ashton from the fraudulent character of his action in keeping the proceedings secret from David Norton. He knew that David owned an undivided half of the mortgaged premises and was interested in the equity of redemption. While a sale would not affect his right of redemption, yet a sale for the full value of the property might effectually prevent him from redeeming, especially if he should be obliged to rely upon raising the money for that purpose by mortgage on his interest. He only owned an undivided half, but in order to redeem he would be obliged to pay the whole purchase price; and it is quite apparent that a person so situated might be entirely unable to secure the money to enable him to redeem. Nathan had notified him that he should not redeem, and therefore it was thrown upon him, in the first instance, to raise the whole.amount. He could have avoided raising so1 considerable an amount had he known before sale of the proceedings to foreclose^ and could have paid the amount due and called upon Nathan to pay his just proportion of such amount. But this, he was precluded from doing by the manner in which the holder of the mortgage chose to exercise the right to foreclose under the power of sale therein given. Ashton, in the execution of this power, occupied the position of trustee toward those interested in the equity of redemption, and was called upon by his relation to the parties to exercise good faith and fair dealing. His acts and object were contrary to those salutary principles, and cannot be countenanced in a court of equity, when timely application is made to it by the injured party for relief.
The question is presented by this record whether the complainant has not so acted as to preclude himself from the relief he prays for, and which was granted him in the court below. As claimed in his bill of complaint, his right to relief is based upon the fraudulent acts and design of the holder of the mortgage to effect a sale without his knowledge. The means employed have already been stated. Upon the discovery of the fraud the complainant was called upon to act promptly if he sought to be relieved from the consequences thereof, and especially was it incumbent upon him to do no act in affirmance ■ of the foreclosure proceedings. He does not allege, in' his bill when he was first apprised of the fact that the foreclosure proceedings were intended as a fraud upon his rights, and there is the same wanUof definiteness in his proofs. The general question was asked him: “ At the time yon received half the so-called surplus money were you aware of the facts that you set up in your bill?” This question was objected to as being indefinite and leading. The witness answered: “ I was not aware of the facts set up in the bill other than that it had been advertised in the Dowagiac paper, but I had known nothing of the amount of money being wanted that was due on the mortgage. I supposed the mortgage was in Milford, Massachusetts, until after the sale.” Complainant was then asked: “ After settling that suit, and receiving part of the surplus money, did the additional facts come to your knowledge ? ” He replied : “ They did.”
What additional facts counsel and witness are referring to is left wholly to conjecture. The witnesses Ricket and Ford testify to certain conversations which they liad with Ashton relative to his advertising in the Dowagiac paper for the purpose of obtaining a sale without David’s knowledge, but it is not shown when they communicated their information to complainant. The only witness who is shown to have informed complainant of the admissions made by Ashton was Sampson Norton, another brother of complainant, who had been instrumental in bringing about a settlement between David and Hathan, and he is not clear as to the time when he made the fact known to complainant, but David says it was the next day after the settlement, which occurred on the 20th day of February, 1882, and this, he says, was the first time he had learned any “ additional facts.”
Complainant’s investigations, made immediately after the sale and prior to the purchase of the equity of redemption from Marion Ashton, disclosed to him all the acts of Nathan Norton and Absalom H. Ashton which tended to prove that a fraudulent purpose existed to so manage the foreclosure as to keep him from obtaining knowledge of the sale until after it had transpired. They were sufficient to put him upon inquiry among his neighbors to ascertain such facts as were within their knowledge as to the foreclosure and sale. Mr Ricket was a near neighbor', and lived upon an adjoining farm, and Ford was a laborer in his employ, and both, from all that appears, were on friendly terms with complainant, and it is to be presumed that if he had made inquiry of either of these witnesses he would have been informed of what Ashton had told them as early as August, 18S1. The proof shows that complainant was possessed of knowledge of the fraudulent acts and object of his brother Nathan and of Absalom H. Ashton prior to October 5, 1881, and the only additional evidence of their fraudulent intention acquired after that time was the admission of Ashton, communicated to him through his brother Sampson. He was therefore called upon to make his election between relying upon them as being of sufficient importance to justify him in setting aside the sale as fraudulent as to him, and the affirmance of the sale by a purchase of the equity of redemption held at the time of the sale by Nathan Norton, and the acceptance of his share of the surplus money produced by the sale.
There is a disagreement between the testimony of complainant and Marion Ashton with reference to the purpose for which he sold and David bought the equity of redemption. It appears that after the death of Absalom II. Ashton, Nathan Norton conveyed his undivided half of the premises to Marion Ashton, a son of Absalom. The purpose of this was to enable Marion Ashton to obtain possession of the premises sold before awaiting the expiration of the period for redemption. Instead, however, of entering into joint possession with David, Marion agreed to rent his interest to David for $120 a year. Both David and Marion agree in this. A different arrangement was however made, by which Marion sold and David bought the equity of redemption then held by Marion. Marion says that complainant desired to purchase so as to enable him to mortgage the whole land to raise money to redeem from the foreclosure sale, and upon those considerations he sold for $130 instead of renting for $120. Complainant denies this, and says that he bought without any reference to redeeming. Whichever may be the true version, it makes no difference with the result. In either event it was an act in direct affirmance of the sale, under the circumstances of this case. Complainant had brought a suit against Nathan for his share of the surplus money ; had caused him to be arrested for embezzlement; both of which suits were then pending; had been told by Nathan that he should not redeem, from Nathan’s letters to him and to Mr. Dean, and from his investigations, he was aware of the fraud perpetrated on him in obtaining a sale without his knowledge, and when, in view of these facts, he purchased Nathan’s equity of redemption, and received from him one-half of the surplus money arising from the sale, he must be held to-have waived any objections he may have had to the manner in which such sale was brought about. He cannot knowingly partake of the fruits of iniquity and then ask a court of equity to relieve him from its injurious effects. His purchase of the equity of redemption from Marion Ashton placed him in position where, upon redemption under the foreclosure, he would become the absolute owner in fee of the whole premises. But to make such redemption effectual, he was required to pay to the purchaser the whole amount bid at the sale, with the interest. How. Stat. § 8507. This he did not do. He only tendered to the administrator of Absalom H. Ashton the amount due on the mortgage, and one-half of the surplus which he had received, with interest. The administrator refused to accept because it was not sufficient in amount.
Complainant contends that he was not- obliged to pay the full amount of the bid at the sale, because the purchase by Absalom H. Ashton was not made in good faith, for reasons stated in his bill of complaint. The result of giving force to this position would be that the heirs to the estate of Ash-ton would be punished by the forfeiture of over seventeen hundred dollars, which went to Nathan Norton, and which he received as the purchase money for his undivided half interest in the land, while complainant would become the absolute owner of thewhole premises by paying six hundred and eighty-five dollars and thirty cents over the surplus .money he had received from the sale. This would be inequitable, in view of the position occupied by the parties at the time the tender was made. Complainant has not shown sufficient reason why he should be relieved from tendering or paying the amount required by the statute to effect a redemption.
The bill of complaint must therefore be dismissed, with costs of both courts.
The other Justices concurred. | [
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Champlin, J.
Harding was convicted in the Recorder’s Court of the city of Detroit of the crime of larceny from a store in the day-time. After the jury were impaneled, and in proper time, the defendant interposed a challenge to the array for the reason that the law under which they were selected is unconstitutional.
In 1881 the Legislature passed an act authorizing a board of jury commissioners for the county of Wayne, three of whom should reside within the corporate limits of the city of Detroit, and three outside, but within the county of Wayne. They were classified so that the term of office of two should expire every two years. The offices are to be-filled by appointment made by the State senate on the nomination of the Governor. The commissioners are required, before entering upon their duties, to take the oath of office prescribed by the Constitution of this State, and file the same in the office of the county clerk. They are to appoint one of their number president, and also appoint a secretary. A record of their proceedings is required to be kept, and they are to serve without pay, except mileage. They are to be electors and freeholders of the county. A majority of them are to meet on the third Monday of May at the office of the county treasurer, and jointly proceed to select, from the persons assessed on the assessment rolls on file in the county treasurer’s office of each township and ward of the county for the preceding year, lists of grand and petit jurors for the circuit court for the cbunty of Wayne, in the manner provided by sections eight, nine, ten and eleven of chapter one hundred and eighty-nine of the Compiled Laws of 1871. The lists are to be recorded at length in the journal of the board, and subscribed by at least a majority of the commissioners, and a duplicate thereof filed in the office of the county clerk, and this list is to be considered and treated by him as the lists mentioned in sections thirteen, fourteen and fifteen of said chapter. The commissioners are also to make lists of petit jurors for each of the municipal courts of record of. the city of Detroit, to be taken from the assessment rolls of the wards of the city, in the same manner as the lists for the circuit courts, and these are to be filed with the clerks 'of the municipal courts respectively ; and juries for these courts are to be drawn in the same manner as for the circuit court. There are other provisions of the act, but the above are sufficient to an understanding of the question raised. It will be seen that no change was made in the existing law relative to the qualifications of jurors, or the lists from which their names should be selected. The objection goes only to the officers who make the selection, and the mode of their appointment. It is claimed on behalf of the respondent that the Constitution guarantees him a jury trial, and that by this is intended such a jury as was summoned at the common law at the time of the adoption of the Constitution.
Two provisions of the Constitution are supposed to be in fringed upon by this act — one relating to the right of trial by jury, and the other to the written and wuwvitten guaranties of that instrument, which secures to municipalities the right of local self-government.
At common law it was requisite that all persons serving upon grand or petit juries should be good and lawful men ; by which was intended that they must be liege subjects of the king, and neither aliens nor persons outlawed, attainted of any treason or felony, or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous. 1 Chit. Crim. Law, 307 By our statute (How. Stat. §§ 7554, 7555) they are required to be electors, and persons who are in possession of their natural faculties, and not infirm or decrepit, of good character, of approved integrity, of sound judgment, and well informed, and conversant with the English language, and free from all legal exceptions. It will thus be seen the qualifications are to-day the same substantially as at common law. By the statute of 6 Geo. IV. c. 50, Parliament attached certain property qualifications, and in this State the Legislature has added certain qualifications to protect the rights of parties, and provide an intelligent and impartial jury.
If the objection here urged to the persons who make the selection is good, it may for the same reason be said that the Legislature has no right to make' any change in the qualifications of' jurors, or of the source from which they shall be selected, since such changes would affect the panel, and doubtless would cause it to be composed of different persons from what it would have been had the law remained the same as it was at the time the present Constitution was adopted.
A brief review of the statutes upon the-subject is proper in order to show what has been the course of legislation, both before and since the Constitution of 1850, as tending to throw some light upon the question under consideration. Under the territorial Act of 1820 the jury were selected by the sheriff from those having the right to vote for delegates to Congress. Under the Act of ,1827 petit jurors were to be judicious persons, having the qualifications of electors, and they were selected and returned by the assessors of the towns, to the county clerk. In 1836 Michigan was admitted into the Union as a sovereign state, under a constitution previously adopted, in which it was declared that “ the right of trial by jury shall remain inviolate,” arid in criminal cases “the accused shall have the right to a speedy and public trial by an impartial jury of the vicinage and in the Revised Statutes of 1838 it was provided that “ all persons being electors under the second article of the Constitution of the State, shall be liable to be drawn and to serve as jurors,” except those exempted by the Act. It was made the duty of the assessors and town clerk at the time of their annual meeting, to review their assessment roll, to prepare a list of such inhabitants of the town, not exempted, as they shall think well qualified to serve as jurors, being persons of good moral character, of sound judgment, and free from all legal exceptions; and these lists were to be filed with the county clerk. In 1840 this law was amended so as to make it the duty of the assessor and alderman of each ward of the city of Detroit to prepare the lists of jurors in their respective wards in the same manner as the assessors of townships. These lists were to be signed by the assessor and alderman, and filed with the city clerk, and he was to transmit them to the county clerk. By the Revised Statutes of 1846, jurors were to have the qualifications of electors, and in making selection the officers were to take the names of such persons only as are not exempt from serving, “ who are in possession of their natural faculties, and not infirm or decrepit; of fair character, of approved integrity, of sound judgment, and well informed, and free from all legal exceptions.” The selection was to be made by assessors and township clerk of each township, and the assessor and aider-man of each ward in the city of Detroit, from the assessment roll of the same year.
This was the law which was in force when our present Constitution was adopted, in 1850. This repeats the declaration contained in' the former constitution, that “ the right of trial by jury shall remain,” and asserts -that “ in every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve men in all courts not of record: to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and have the assistance of counsel for his defense.” Was it intended by this provision of the Constitution that it would be incompetent for the Legislature thereafter to change the law relative to the manner of selecting jurors, or to the person or officer who should make the selection, or the lists from which the ■ selection should be made ?
In some states the selection is made from the registration list of voters. Would it not be competent for the Legislature to so provide in this State? I think that it would. The only restriction upon the legislative power which occurs to me is that jurors shall have the qualifications of electors, and that they shall reside in the vicinage. The latter idea has always been associated with the jury system in criminal cases in the jurisprudence of both England and America, and is as essential as that the number shall consist of twelve.
The trial by jury preceded Magna Charta, and was a well-known institution at the time the barons assembled at Bunnymede. The great charter only declared what was claimed as an existing right: that no person should be deprived of life, liberty, or property unless by the laws of the land or the judgment of his peers. In this country, where no class distinctions are recognized, an elector is considered in the eye of the law as the peer or equal of any other man. The electors are the repository of all political power. Through them constitutions are established, and' through their chosen representatives laws are made, executed and administered. It seems to me, therefore, under the Constitution of this State, that the persons selected as jurors must possess the qualification, existing at the time it was adopted, of being electors.
It does not follow, however, that all electors are qualified to sit as jurors. The statute of 1846, in force at the time' the Constitution was adopted, required that the selection should be made, and those only taken “ who are in possession of their natural faculties, and not infirm or decrepit; of fair character, of approved integrity, of sound judgment, and well informed, and free from all legal exceptions.” The object was to insure an intelligent and impartial jury. I have no doubt of the authority of the Legislature to impose these or additional qualifications to secure such object. In 1861 the Legislature amended the Act of 1846 by adding to the qualifications of jurors to be selected, that they should be conversant with the English language, and who have not made, and in whose behalf there has not been made, to the selecting officers, any application to be selected and returned as jurors. Act No. 25. In 1867 the Legislature enacted “ that no person shall be qualified to be or become one of a panel of jurors, in any circuit court or court of record, in Wayne county, who within one year prior thereto, has been or acted as a member of a panel of jurors, whether summoned on the original panel, or added thereto as talesman, in the same court; and it shall be the duty of the circuit or presiding judge, to discharge any such person if summoned as a juror, who within one year has been a member of a panel of jurors in said court, and it shall be a just cause of challenge to any juror in any cause, over and above all other challenges allowed by law, that he has been within a year a member of a panel of jurors, in said court. Act No. 129. In 1869 this Act was amended so as to allow justices of the peace of the county of Wajme to become jurors, notwithstanding they had been members of a panel of jurors within a year (Act No. 48); and Act No. 62 of the Laws of 1869 extended the provisions of the Act of 1867 to all courts of récord in the State.
By Act No. 117, Sess. L. 1873, the qualifications of jurors in criminal cases were further enlarged by providing that the previous formation or expression of opinion or impression, not positive in its character, m reference to the circumstances upon which any criminal prosecution is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference-.thereto, such opinion or impression not being positive in its’character, or not being based on positive knowledge of the facts in the case, shall not be sufficient ground of challenge for principal cause to any person who is otherwise legally qualified to serve as a juror upon the trial of such action, provided he shall declare upon oath that he verily believes that he can render a just and impartial verdict according to the evidence submitted to the jury on such trial; and further, that the judge shall be satisfied that he does not entertain such a present opinion as would influence his verdict.
In 1877 a change as to the manner of drawing jurors was made, and in 1879 it was enacted that the assessors and township clerk of each township, and the assessors and alderman of each ward in any city, shall, at the time 'appointed by law for said assessors to review their assessment rolls in each year, make a list of persons to serve as petit jurors, and a list of persons to serve as grand jurors, the ensuing year, which was changed again in 1881 so as to require the supervisor and township clerk of each township, and the supervisor or assessors, as the case may be, and aider-man of each ward or assessment district in any city, at the time appointed by law for the review of the assessment roll for each year,'to make a list of persons to serve as petit and a list to serve as grand jurors for the ensuing year, but in no case shall they put one of their own number upon the list. Act No. 65. Subsequently, at the same session, the law in question was passed, and was amended in 1883.
It will be seen from this review that the Legislature has frequently, and I think with entire propriety, legislated not only upon the subject of qualifications of jurors, but as to the persons or officers by whom the list of jurors should be selected. The right of trial by jury remains as it existed at the time of the adoption of the Constitution and was known to the previous jurisprudence of this State. The incidents of such trial, which were so known and recognized, which are essential to the enjoyment of the right, whether they pertain to the method of obtaining or to the persons who compose the jury, cannot be impaired or destroyed without violating this constitutional provision.
It was held in Hill v. People 16 Mich. 351, that the jury, in criminal cases, must consist of twelve, and that all. must have the qualifications of being electors. In this case, one alien was embraced in the panel, and the conviction was set aside. In People v. Marion 29 Mich. 31, it was said that “ it is one of the most essential features of the right of trial by jury at common law, that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit.” In Underwood v. People 32 Mich. 1, it was held that “ the right of trial by jury is secured by constitutional provisions, and it would not be competent to make any substantial changes in its character; ” and in Swart v. Kimball 43 Mich. 448, Mr. Justice Cooley, in expressing the opinion of the Court upon this provision of the Constitution, said: “ The right is to remain. What right ? Plainly the right as it existed before; the right to a trial by jury as it had become known to the previous jurisprudence of the State. The right is not described here; it is not said what shall be its incidents; it is mentioned as something well known and understood under a particular name; and by implication at least, even a waiver of its advantages are forbidden. If the accused himself cannot waive them, plainly the Legislature cannot take them away. The next section of the Constitution repeats the guaranty of this method of trial ‘in every criminal prosecution,’ and nothing is better settled on the authorities than that the Legislature cannot take away a single one of its substantial and beneficial incidents.”
These citations are sufficient to show that all the essential incidents of the trial by jury, as it existed at the time of the adoption of our Constitution, are protected by this guaranty.
The question under consideration does not, however, have reference to the trial, but precedes it, and appertains to the selection of the jury. In England the selection has usually been made by the sheriff from the class, of persons whose qualifications have been prescribed by statute ; and that officer, under our statute, performs that duty in cases where a special jury is allowed. The manner of the selection, and the person or ^persons by whom the selection was to be made, was often the subject of change by the legislative power, both in England and America, but it was never supposed that this was an infringement of the right of jury trial, so long as the selection was made by an impartial person, acting free from bias or corruption. A challenge to the array, which is one of the essential incidents of jury trial, has been regarded as a sufficient safeguard against the partiality or default of the officer who selected or summoned the panel; and I have no doubt that this challenge would lie to the action of the board of jury commissioners appointed under this act, where it would at common law to the action of the sheriff or his subordinate officers in selecting or summoning a jury.
It is claimed that this law violates the principle of local self-government underlying the Constitution, and recognized by that instrument; that the functions to be performed by these officers are local in their nature, and pertain to the local administration of the affairs of the municipality. From what has been said it is quite apparent that it has been the uniform practice of the Legislature to cast the duty of selecting jurors to serve in courts of record upon local officers of the townships and wards. This has been so in this State since 1827, and substantially the same officers have been required to perform that duty ; and since the selection is required to be made from the assessment rolls of the township and ward, there is a manifest propriety in providing that the assessing officer shall 'be one of the persons to make the selection. Presumably, he comes in contact with and is personally acquainted with the qualifications of the persons named on his roll, and is better qualified to discharge the duty than any other person could well be. The township clerk and aldermen are also local officers, whose acquaintance with the electors of their respective towns and wards may be presumed. The office of assessor is not a constitutional one. The Legislature may create or abolish the office at pleasure. The offices of supervisor and township clerk are named in that instrument, but it expressly says that their powers and duties shall be prescribed by law. But the question arises, is the selectioji of jurors a duty that can be said to belong to the local officers named, as matter of right? Has the duty been exercised so long in connection with the duties of those offices that its exercise is implied in the name? I think not. Neither do I think the duties involved are of a local administrative character. In selecting a jury, whether the duty is performed by the supervisor and town clerk, or by the assessor and alderman, or again by the board of jury commissioners, the act does not involve the administration of local affairs. It requires a knowledge of men, and the exercise of discretion and discrimination, bxit it is not of a judicial nature. It determines no one’s rights. In the record before ns the question is presented as one purely connected with the administration of the criminal laws of the State. And upon this subject Mr. Justice Christiancy, in Hill v. People at page 357, says: “ The true theory, we think, is that the people, in their political or sovereign capacity, assume .to provide by law the proper tribunals and modes of trial for offenses, without consulting the wishes of the defendant as such; and upon them, therefore, devolves the responsibility, not only of enacting such laws, but of carrying them into effect by furnishing the tribunals, the panels of jurors, and other safeguards for his trial, in accordance with the Constitution, which secures his rights.”
The enforcement of criminal law concerns the State at large. It is not confined to one locality more than another. The fact that the State has been accustomed to confide to local agencies as the instruments of its enforcement does not deprive the State of the obligation to try offenders, or make such trial- subject to local control. What was said by Mr. Justice Campbell in People v Hurlbut 24 Mich. 83, is perti'nent to the question under consideration, namely: “The preservation of the peace has always been regarded, both in England and in America, as one of the most important prerogatives of the state. It is not the peace of the city or county, but the peace of the king or state, that is violated by crimes and disorders. The prosecution is on behalf of the state. Our Constitution confides the judicial power to no courts but those organized under the direct sanction and regulation of State law. No portion of this power can be delegated to cities. Courts may be established to act in municipalities, and their judges may be elected by the citizens, but their powers must all be defined by State legislation, which authorizes and establishes them. The number and qualification of jurors are under State control.”
In the exercise of this prerogative it seems to me that it is perfectly competent for the Legislature to appoint a board of officers, and invest them with the authority to select from the whole body of persons qualified to serve as jurors a sufficient number to form a panel for the trial of offenses against the laws of the State. Nor does it make any difference that the expense of the board is to be paid from the treasury of the county of Wayne. The Legislature may have considered this a just apportionment of the public burthen for this county to bear; and there is no more legal objection to it than there is to paying juries from the county treasury. People v. Board of County Auditors 13 Mich. 233. If any inference is to be drawn from the payment of the expenses by the county, it would be against the claim of the board being local officers, and would rather point to their being considered as State agencies. When the nature of their functions is determined, and the class of agencies to which they belong resolved, the question is solved so far as it affects constitutional rights.. Their functions are not judicial, but ministerial, involving a certain amount of discretion, it is true — but nearly all ministerial acts involve the exercise of discretion — and they belong to the class of State agencies employed in the administration of justice. It is competent for the Legislature, acting for the State, to discontinue the use of local organization and officers in executing the duties devolved upon it, and create new offices or agencies for that purpose, and to elect or appoint persons to fill such offices in such manner as to them shall seem best.
I find no constitutional objection to the law in question, and the Recorder’s Court is advised to proceed to judgment.
The other Justices concurred.
Act ICO of 1881.
How Stat. §§ 7554-57
How Stat. §§ 7559-61
Terr. L. 490.
2 Terr. L. 467.
Const. 1886, art. i, § 9.
Const. 1836, art. i, § 10.
Pc. 3, tit. ii, oh. 5, seo. 1.
Act 36 of 1840.
Ch. 108, sec. 9.
Coast, art. vi, § 27.
Const, art. vi, § 28.
Rev. Stat. 1846, oh. 103. sec. 9.
Act 125 of 1877.
Act 41 of 1879.
Act 91 of 1883. | [
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Campbell, J.
The only question which is presented by the record in this case is. whether it is competent to assess a legatee for a legacy not yet due, and still in the hands of executors. As this was the only thing assessed, we think there is no legal objection to reaching the rights of the parties as-asserted by the payment under protest. It has been decided in several cases that the liability to taxation of certain classes of property, when clearly identified and separable, is examinable. Under our statutes the property of a testate estate is required to be assessed at the last residence of the decedent, to-the executors. The decedent resided in the same ward where .this assessment was made, and his estate was assessed there. The statute is express that the whole undistributed estate shall be assessed to the executors. Section 11. [1 How. Stat. p. 1267.] Under such a distinct and positive provision a legatee could not be required to assume that any part of the estate would be assessed to her, when she could not realize it, or obtain control over it.
We think the conclusions of the court below were correct,, and that the judgment should be affirmed.
The other Justices concurred. | [
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Sherwood, J.
Bill for dissolving partnership and for an accounting. The parties were partners engaged for a time in exploring for and mining ore upon leased land in which they had the exclusive right for fifteen years. They entered upon said land, known as Hematite mine, and carried on their mining business from May 1, 1879, until June, 1880, dui’ing which period they mined and shipped away large quantities of ore. Complainant claims that subsequently they sold the mine. Defendant, however, denies this sale was made before suit brought. The partnership was to continue during the pleasure of the parties, and the profits to be shared equally between them. The defendant was to keep the accounts, and draw checks and drafts to pay the laborers. He kept no firm books showing the amount of the business done, but kept the accounts in his private books. He received the moneys and conducted the financial business of the company. These facts appear in the pleadings and by the proofs.
The complainant insists defendant has failed to ‘make entries of all transactions on his books, and has mingled the accounts of the partnership transactions with his private accounts, and converted some of the funds to his own use. This, defendant denies. Both parties filed accounts of the partnership business. The matter was referred to a commissioner, who reported a statement of account which showed a balance due the complainant of $984.22. The report was excepted to by both parties, the exceptions specifying the items each claimed should be allowed and disallowed. The circuit judge modified the findings of the commissioner and rendered a decree in favor of the complainant for the sum of $1240. The defendant appeals to this Court. The complainant did not appeal, and therefore only the defendant’s objection can be considered.
A very careful examination of the testimony appears to have been given by the commissioner before whom it was taken, as well as by the circuit judge whose decree is appealed from. The complainant’s account consists of 114 credit and two debit items, and that of the defendant of four credit and 142 debit items. The commissioner disallowed, in whole or in part, twelve debit items of the complainant, and his claim for interest. The defendant’s exceptions extend to three items in his account which were presented, besides the interest claimed; also to the allowance of eighteen items, in whole or in part, of the complainant’s account presented.
We have examined the testimony bearing upon each of these items, and the briefs of counsel relating thereto, and find no occasion for disturbing the decree of the circuit judge' as to any items, except those relating to the $52 for exploring on the leased property disallowed, and the item of interest on amount due complainant, being $196. A part of the business of the parties was exploring the territory leased, and at the time the expenses claimed were incurred the partnership had not been dissolved, and until that time it was entirely proper for either party, with or without the consent of the other, to expend -any reasonable amount which he might deem proper in the legitimate prosecution of the co-partnership business, and this item seems to have been reasonable in amount. There is no pretense that what was done was not within the scope of the ordinary business of the firm; neither was it without benefit to the parties. We think the evidence shows it helped to sell the firm’s interest in the property.
Interest can never be allowed on an unsettled or an unliquidated account without an agreement, express or clearly implied, and the case must be a very strong one when it is between partners to warrant its allowance without express agreement to that effect. We have been unable to find any understanding or agreement, either express or implied, by which either party was to be allowed interest for moneys owing to the firm'from either, or from the firm to either, or from one to the other, in the conduct and management of the copartnership business, before dissolution and final settlement ; and in that case, until that time, neither is chargeable with interest on money he owes to the other or to the firm, arising out of the business transactions of the company. (No usage is shown between these parties upon the subject of interest.) Colly. Partn. §§ 337, 338; Pars. Partn. (3d ed.) 229, note Lindl. Partn. 786, and notes; Dexter v. Arnold 3 Mason 284, 289; Gilman v. Vaughan, 44 Wis. 646; Day v. Lockwood 24 Conn. 185. We do not mean to be understood that there may not be equities existing between the partners and equitable circumstances existing before final settlement which would raise an-implied agreement to pay interest (Beacham v. Eckford 2 Sandf. Ch. 116); but we do not find them upon the record in this case.
There must be deducted from the decree these two items, amounting to the sum of $248, and, with this modification made, the decree of the circuit court will stand affirmed, with costs to defendant.
The other Justices concurred. | [
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Cooley, C. J.
The respondent was charged before a magistrate with the larceny of a horse, harness, cutter, buffalo robe, two blankets and a whip.' Witnesses were examined in support of the charge, whose evidence showed that he had obtained the horse and other articles of a livery dealer, all at one time, and for the purposes of a trip to Palmyra, but, as the other facts tended to show, with a purpose at the time of obtaining them feloniously to appropriate them to his own use, and that he went off with them into the state of Ohio. A warrant was issued, upon which he was arrested, and on being brought before the magistrate, he waived examination, and was held for trial. An information was filed against him, which, in setting out the offense, followed the complaint before the magistrate. The respondent pleaded guilty to the information, and the court sentenced him to imprisonment in the State prison for eight years. The respondent brings error.
It is claimed that the sentence is illegal, because the court has undertaken to sentence for horse-stealing under the statute which imposes a heavier punishment for that species of larceny; while the charge was of the stealing of several different things, and a general conviction is not a finding that all of them were stolen. Boody v. People 43 Mich. 34. We think, however, that when the accusation is of the larceny of several articles, as one act, and for a use to which all were to be and were put, a plea of guilty may be taken as an admission of the larceny of all, and the judgment be supported.
The sentence, however, though not wholly illegal, was excessive. The information made no reference to the statute under which horse-stealing is punished as a distinctive larceny: How. Stat. § 9180; and the case should therefore have been disposed of as one of simple larceny. People v. Jones 49 Mich. 591. The maximum punishment for that offense is five years. How. Stat. § 9140.
The judgment will be reversed as to the excess, and affirmed as to the remainder. How. Stat. § 9614.
The other Justices concurred. | [
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Champlin, J.
Respondent was tried upon an information charging him with committing an assault upon a constable with intent thereby to resist the officer in the service of an execution. The jury found the defendant guilty of a simple assault. The questions raised by the respondent, in consequence of the verdict of the jury, become unimportant, and therefore the circuit court is advised to proceed to judgment upon the verdict.
The other Justices concurred. | [
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Champlin, J.
Plaintiff brought replevin to recover possession of a herd of cattle which the defendant had driven from the public highway in front of his premises, into his barn-yard, claiming that they had been there every day for a week or more, greatly to his discomfort and annoyance; also that they were at large in the highway, contrary to law; also that they were trespassing upon his premises, which authorized him to take them into his possession, under How. Stat. § 2108. It was admitted, on the trial, that this replevin suit was brought before any demand was made for the cattle, and that, if the defendant had the right to take them up in the first instance, his subsequent steps were regular and lawful. It was also admitted by counsel for plaintiff that the board of supervisors of Ingham county had passed a resolution prohibiting animals from running at large in the highways in the township where these cattle were taken up. The plaintiff’s testimony, and that of his witnesses, showed that these cattle were in charge of a boy about thirteen years old ; that they were being held in front of defendant’s house by this boy; that when they passed by the boy went around them and drove them back, and made an effort to keep them in front of the defendant’s house. The defendant, on the trial, contended that the cattle were at large within the meaning of the statute: if not, that they were trespassing upon his premises; and that, whatever might be the defendant’s rights under the statute, the pasturing of the plaintiff’s cattle in the highway, in front of the defendant’s house, as shown by the defendant’s testimony, amounted to a nuisance; and that the defendant’s act in turning the cattle from the highway into his barn-yard was lawful, being the most direct means of abating the nuisance. The circuit judge held that the defendant had no standing in court; that, inasmuch as the boy was with the cattle, they were not at large in the highway; that if the trespassing of the cattle was annpying to the defendant, he was not authorized to turn them into his barn-yard, but could bring a suit for his damages. The court, therefore, directed a verdict for the plaintiff, to which the defendant excepted, and appeals to this Court.
The statute referred to provides that “It shall be the duty of the overseer of highways to seize and take into his custody and possession any animal forbidden to run at large, ■which may be running at large in any highway of which he is overseerj contrary to the provision of the foregoing section, and it shall be lawful for any person to seize and take into his custody and possession any animal which may be in any public highway, and opposite the land owned or occupied by him, contrary to the provisions of the foregoing secti.on ; and it shall be lawful dor any person to take into his custody and possession any animal which may be trespassing upon premises owned or occupied by him.’’ How. Stat. § 2108.
"When cattle are in the public highway, in charge of a person directing or controlling their movements, they are not running at large within the meaning of the statute. The language applies to animals in the highway without being in the custody or under the control of any person; consequently, the defendant had no right to impound the cattle in this case, as the record shows that they were being tended by the plaintiff’s servant; and were in his custody.
It was said in Campau v. Konan, 39 Mich. 365: “Upon principle the owner of lands adjoining the highway is entitled to the herbage growing thereon, and whatever rights the public may have in the highway, a common of pasture is not among them;” and, based upon this principle, defendant claims that plaintiff’s cattle were trespassing upon his premises and therefore he had the right, under the last clause of the section cited, to take them into his custody and possession. This clause of the statute refers to trespasses upon premises other than the public highway, and was intended to afford a remedy for trespasses upon the private lands of owners or occupiers. To give to the statute the construction contended for by defendant would render the former clause, giving the adjoining owner the right to take such cattle as were running at large in the highway into his custody and possession, entirely unnecessary, and do away with the distinction which is plainly made by the statute between cattle running at large in the highway and cattle committing trespass upon private property. There is no doubt that defendant had a complete remedy at law for the acts of plaintiff in depasturing his herbage and grass in the highway; but the summary remedy provided by the statute for impounding them was not proper, under the facts of this case.
Neither do we think the defendant justified in taking the cattle into his possession under the claim that they constituted a nuisance. Where nuisances are created, to the injury or annoyance of the owner of real estate, the law affords ample remedies; and in some cases the person injured is justified in abating the nuisance by force; and in this case he probably would have been justified in using any appropriate means to drive the cattle away from his house; but there is nothing in the nature of the alleged nuisance which would authorize him to- take possession of the cattle and confine them upon his premises. It follows that his possession was wrongful, and the plaintiff was not obliged to make demand before bringing replevin.
The judgment is affirmed.
The other Justices concurred. | [
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Cooley, C. J.
On February 7, 1883, one Canterbury brought suit in the circuit court for the county of Menominee against one McClintock, and garnished the relators as having in their hands property of McClintock. Judgment was recovered in the principal suit, and the garnishees disclosed that they were in possession of certain goods and chatteís of the estimated value of $6000, as mortgagees of McClintock, under a mortgage given to secure the payment of $4775, all of which was due and unpaid. The garnishment suit appears to have been brought to trial before a jury, who returned a verdict that the garnishees had property of McClintock in their hands which was of the value of $7000, and had a lien upon it to the amount of $4772.69. Thereupon the circuit court made an order, which is given in the margin.
The garnishees complain of this order, and apply in this proceeding for a writ of mandamus to require its vacation. Several objections are made to it, but only those will be noticed which appear to us to require examination for the purposes of a decision of the case now before us.
The statute (How. Stat. § 8064) contemplates that the court, when it shall appear that the garnishee has in his pos session property belonging to the principal defendant, will appoint a commissioner or receiver to collect and apply the proceeds upon any .execution in favor of the plaintiff and against the garnishee. The next section is as follows:
“ If it shall appear, as aforesaid, that the garnishee had in his possession, as aforesaid, any personal property of the principal defendant, and that the same is subject to any pledge, lien or mortgage, and at the time of the disclosure has not been sold by the garnishee, the same shall be delivered by the garnishee to the commissioner or receiver, if the commissioner or judge so order, to be by him disposed of under the direction of the court, if a greater amount than the incumbrance can be obtained therefor, and after paying the amount of such incumbrance, to apply the balance as aforesaid, or the plaintiff may be allowed by like order to pay or tender the amount due the garnishee.”
It is under this section that the circuit court has acted.
We have grave doubts of the right to take from a mortgagee of chattels the property upon which he has a lien, except where, for the protection of the rights of others,, the necessity shall be apparent. It is a serious interference with his contract rights. It is a part of his security that the mortgage gives him authority to take the property into his own possession; and nothing which may subsequently be done by or against the mortgagor can rightfully diminish or affect this security. When a resort to legal remedies becomes essentia], all parties concerned may be required to submit to some inconvenience, and perhaps to some loss; but in a case where, as in this case, the legal remedy is only sought for the purpose of reaching a surplus after a lien is satisfied, and the lienholder is not concerned in the controversy, it cannot be rightful to make the burden or the cost of the litigation fall upon him, or to take from him substantial rights for the •convenience of the parties litigant.
In this case the plaintiff,, after obtaining his judgment, might have sold on execution the interest of the mortgagor in the goods and chattels mortgaged (How. Stat. § 7682); and for the purposes of a levy might have taken possession temporarily. Cary v. Hewitt 26 Mich. 228; Macomber v. Saxton 28 Mich. 516; Nelson v. Ferris 30 Mich. 497; Haynes v. Leppig 40 Mich. 602. But the levy must be subordinate to the right of the mortgagee (Worthington v. Hcmna 23 Mich. 530); and a sale, if made without first paying off the mortgage, must be made of the goods in gross, subject to the mortgagee’s lien. Worthington v. Hanna 23 Mich. 530; King v. Hubbell 42 Mich. 597; Haynes v. Leppig 40 Mich. 602; Baldwin v. Talbot 46 Mich. 19; Laing v. Perrott 48 Mich. 298. It is not apparent on this record that an execution would not have accomplished the purposes of effectual remedy quite as effectually as the appointment of a receiver; but if for any reason a receiver was deemed necessary, he could not properly be given greater powers ■than a sheriff would have had if execution had been placed in his hands. It would have been proper to empower him to examine the property and inventory it, for the purposes of an intelligent sale; but a sale must be made by him of the property in gross subject to the mortgage, and all his proceedings must be at the expense, not of the mortgagees, but of the fund that might be realized on the sale.
The order complained of should therefore be modified so far as it authorizes the receiver to displace the possession of the mortgagees, and so far as it authorizes the receiver to sell the mortgaged property without regard to the mortgage lien, and to pay the mortgagees from the proceeds after deducting expenses. The statute only contemplates a sale when a greater sum than the amount of the lien can be realized; and this is inconsistent with a sale in parcels, the outcome of which cannot be known when it is begun. And it is unjust, even if the statute would .permit it, that the mortgagees should be subjected to the risks of a sale of all the property to be made by a receiver at the expense of the fund, in a suit which concerns only other parties, when under their security they have a right to make sale themselves.
The order complained of does not require the receiver to give security. Probably this was an inadvertence. It should be corrected.
An order will be entered in accordance with these views.
The other Justices concurred.
“In this cause, the jury having found that the garnishee defendants, James D. Smith and Charles Loughrey, have property in their possession belonging to the said William E. McClintock, at the time of making their disclosure, to the amount of seven thousand dollars, and that the said garnishee defendants have a lien upon said property to the amount of four thousand seven hundred seventy-two and 69-100dollars: Therefore, on motion of W. H. Phillips, attorney for plaintiff, it is ordered by the court now here, that Ransom Hammond, of Iron Mountain, Menominee county, be and he is hereby appointed receiver of the aforesaid property.
And it is further ordered that the said James D. Smith and Charles Loughrey deliver the aforesaid property to the said receiver, and the said receiver shall, immediately upon such delivery, proceed to sell the same at public vendue, first giving at least six days’ notice of the time and place of such sale, by posting notices in three public places in the township, city or village where said property may be found.
And it is further ordered that the said receiver shall dispose of the proceeds of .said sale, as follows, viz.: (1) Pay all costs and expenses of said sale out of the proceeds thereof; (2) pay the lien of the said Smith & Loughrey, or so much as remains due upon the same, out of said proceeds; (3) and the remainder, if any, to be returned to this court to be applied to the payment of plaintiff’s judgment against said William E. McClintock, and the balance, if any, after paying said judgment, to be disposed of as the court shall direct.
And it is further ordered that the said Smith & Loughrey shall give said receiver a statement of the amount of goods sold up to the time said receiver takes possession, and also the amount he has received for the same, and said amount shall be deducted from the total amount of said garnishees’ lien.
And it is further ordered that in case the said Smith & Loughrey have mixed, or caused to be mixed, other goods and property with the goods and property in their possession belonging to the said William E. McClintock on the 7th day of March, 1883, then and in every such case said receiver may take, such steps as are authorized by law for the recovery of the same or the value thereof.
C. B. Chant,
Ci/rcuit Judge. Dated September 17, 1883. | [
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Boyles, J.
Plaintiff sued the defendants for damages arising from an injury which occurred when she stepped on a steel cover over a manhole in the sidewalk, in front of the defendant Cassidy Theatres’ property and the defendant Glover’s Circle Pharmacy’s place of business in Midland. The cover tipped up when she stepped on it causing her to falb into the opening. The case was tried by jury, resulting in verdicts of $7,000 against the defendant Cassidy Theatres, Inc., and for no cause for action in favor of Glover’s Circle Pharmacy. Prom the judgment entered against it accordingly the defendant theater company appeals. The plaintiff has not appealed from the judgment in favor of the defendant pharmacy.
On October 23, 1952, at about 6:30 p. m., plaintiff stepped on the manhole cover while walking on the:. sidewalk in front of the building owned by said Cas-sidy Theatres, Inc., occupied by the defendant Glov-. er’s Circle Pharmacy. The cover was 22-1/2 inches in diameter, set about 1/4 of an inch into a collar in the sidewalk. Its edges were flush with the sidewalk, with a slight crown in the center, and it weighed. 45-1/2 pounds. Plaintiff, who had walked over the, cover several times before, was walking at a normal gait, observed the manhole cover but saw nothing un-, usual, that it was not misplaced, stepped on it with her left foot and as she did so the cover flipped up, hit her leg and rolled away. She fell into the man-' hole up to her armpits, was helped out, and was severely injured.
Plaintiff’s declaration originally was in 2 counts. The first alleged that the defendant was guilty of negligence in creating a nuisance, and that the plaintiff was free from any contributory negligence on her part. However, at the conclusion of all the proofs the plaintiff withdrew count 1 based on neg ligence .and the case was submitted to the jury on the second count. It alleged:
“6. That said opening constituted an encroachment upon and interfered with the use by the public' of the city sidewalks, and that because of the nature,location and construction of said opening and because of the nature and construction of the cover thereon, was a public nuisance constructed by Cassidy Theatres and maintained by Hugh and Frances (xlover. * * *
“10. That plaintiff’s injuries aforesaid are the sole and proximate result of the construction and maintenance by defendants of said public nuisance.”
.Appellant advances 4 grounds for reversal, 2 of which may be considered together:
“1. Was defendant Cassidy Theatres, Inc., guilty of an unlawful or wrongful act or omission, which created a nuisance whereby the plaintiff was injured? * * *
, “3. Did the lower court err in charging the jury on the theory of nuisance based upon negligence?”
Obviously the appellant, by said first question, seeks to advert to plaintiff’s abandoned claim under cohnt 1, i. e., that the defendant was guilty of “an unlawful or wrongful act or omission, which created a nuisance.” Much testimony was received during the trial before plaintiff, at the conclusion of all the proofs, discarded her claim of negligence under her first count. The testimony cannot be definitely segregated and classified as applying to either plaintiff’s claim of negligence or to her final claim of nuisance. The briefs of both parties canvass and discuss the testimony at length. There was substantial testimony that the manhole cover was of safe construction and properly placed. There was emphatic testimony to the contrary. It was not locked or fastened shut, although so designed that it could be done. When properly fastened into place, it could not be tipped np or moved. It was not regularly inspected to see that it was kept in place. One Walter Buhler, a registered civil engineer employed by the city, whose'testimony qualified him by 29 years’ experience in construction work, including designing and constructing manhole covers for streets, sidewalks and highways, testified to different types of manhole covers used in construction work. After examining the manhole cover here in question, ho testified that it was.different from any that he had ever seen or used, thinner, 1/4 inch thick on the'- edge instead of 1-1/4 inches, and 45-1/2 pounds in weight instead of 96 to 98 pounds as used by the city of Midland; also that it fitted into the collar 1/4 inch at the edge instead of to a depth of 1-1/4 inches. After-qualifying as an expert, he testified, in substance, that the manhole cover in question, lacking in depth at the edges and in weight, would not be a safe type of cover. We do not agree with appellant’s claim that the court erred in submitting to the jury the testimony of the civil engineer. He had been amply qualified to testify as an expert on construction of manhole covers.
It is not necessary to cover all the testimony relating to proper construction of the cover. It is sufficient to say that there was enough competent testimony on both sides to raise an issue of fact as to whether a nuisance had been created or maintained, and that it was proper to submit that issue to the ■jury. • • '
Appellant claims that the trial court erred in charging the jury on the-theory of a-nuisanee based on negligence. Due to the nature of the testimony received during the trial, without, objection, before plaintiff had withdrawn the .claim of • negligence, which had been received as referring to a claim of negligence creating ¿ nuisance as well as to plain tiff’s claim of maintaining a public nuisance, it was necessary for the court to charge the jury without attempting to segregate such testimony as might point solely to a claim of nuisance created by negligence. The charge, as a whole, clearly outlined the respective claims of the parties, and left it to the jury to find whether the manhole cover was constructed and maintained by appellant “in such a manner as to constitute a. nuisance.”
• The court. correctly defined what constituted a nuisance, properly instructed the jury as to the law of nuisances per se, as well as those which are intentional. The court then discussed a third class, which the court referred to as nuisances which have their origin in negligence, concerning which the court said:
'“[Those] which become nuisances by reason of circumstances and surroundings and as to whether or not this class of nuisance has been established in this case is one of fact and it will be your duty to determine whether the same has been established by a fair preponderance of the evidence. * * * The plaintiff claims that because the manhole cover was not properly secured so as to afford absolute safety to users of the sidewalk and because.of the fact that in its construction it didn’t have a flange of sufficient thickness whereby the same would not become displaced easily, and for other reasons as 'they have indicated to you in their case, that this ■constitutes maintaining said manhole and manhole cover in such a condition whereby it was a menace and dangerous to the public and therefore a nuisance.”
We are not in accord with appellant’s claim that the court erred in charging the jury that they might find the maintaining of a nuisance created by negligence; or that the court “improperly injected [the question of negligence] into the case.” The court charged the jury that a nuisance might have its origin in negligence, and charged that if the jury so found, contributory negligence would be a good defense which the jury must consider.
The charge as a whole was proper. Denny v. Garavaglia, 333 Mich 317; Brown v. Nichols, 337 Mich 684.
Finally, appellant seeks reversal on the ground that the verdict was excessive. There was testimony that plaintiff had received a gouge in the right shin and was black and blue on both legs on up to the ribs, that she later complained of a severe pain across the chest, through the neck and down through the shoulder, experienced “a burning, stinging sensation that never leaves and I have had it since the accident;” that her right arm was weak and any use of it was painful; that any use of the arm resulted in pain and discomfort. Plaintiff had a numbness and weakness in the back of the neck, down her right arm, and numbness in the arm and in the right 4th and 5th fingers. She experienced a limitation of the motion of the head, and there was evidence of atrophy of the muscles in the areas as well as an injury to the ulnar nerve.
Pain and suffering was proven, as well as probable permanent injury, by medical testimony. There is no claim of an appeal.to the jury of prejudice or for sympathy. The' verdict was not excessive: Adelsperger v. City of Detroit, 248 Mich 399; Watrous v. Conor, 266 Mich 397.
Affirmed.
Dethmebs, C. J., and Sharpe, Smith, Eeid, Kelly, Carr, and Black, JJ., concurred. | [
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