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of the writ as prayed, on the authority of Williams v. Secretary of State, 145 Mich. 447 (108 N. W. 749).
OSTRANDER, J. I concur in holding that the apportionment of representatives made by Act No. 336, Pub. Acts 1913, violates the Constitution; but, for the reasons given in the opinion filed in the matter of Williams v. Secretary of State, 145 Mich. 447 (108 N. W. 749), I hold there is no existing, valid apportionment of representatives, and can be none until the legislature has again acted.
KUHN, J., concurred with OSTRANDER, J.
MARSH V. BREEN IRON CO.
1. EXECUTORS AND ADMINISTRATORS - ESTATES OF DECEDENTS STOCKHOLDERS—CORPORATIONS-SALE. Where a deceased stockholder of a mining company pro
vided by his will for the appointment of two executors, who presented the will for probate and filed their bond, and where no letters of administration were issued but they attempted thereafter to give their consent to a transfer of the corporate assets, having taken no other steps to administer the estate, their action was of no effect, and proxies signed by them to be used by the secretary
of the corporation were null and void. 2. CORPORATIONS-REORGANIZATION-CONSOLIDATION.
Where the officers and stockholders of a reorganized cor.
poration knew that one-fifth of the shares of the original company were not present at the meeting at which the reorganization was authorized, and that the executors of an estate that owned a large part of such stock were mining company were not present or represented at a meeting of the stockholders at which a reorganization was effected, and the newly formed corporation took over the assets and property of the predecessor without any consid. eration paid to such interests as were not represented, so far as the dissenting shareholders were concerned their rights were not affected by the transfer.
not present and their proxies were invalid, the reor. ganized corporation was chargeable with notice of the facts known to the majority of its stockholders and to its officers.
Where one-fifth and upwards of the shares of stock in a
4. SAME-ESTATES OF DECEDENTS-LACHES.
And where it appeared that the persons who were entitled
to share in the estate were in part infants and did not know about the acts of the executors, and that decedent's widow, who had an interest in the stock, did not learn of the existence of the stock until eight or nine years after the will was admitted to probate, and subsequent to the death of one of the executors, that she attempted to cite the surviving executor into court to disclose what had been done with the estate, that she settled with the executor for certain rentals that had been collected by him and he procured an order of the probate court discharging him as executor of the estate, as having settled in full for the assets in his hands, although third parties had become interested in the reorganized corporation, the evidence was not such as to bar the right to an accounting in favor of the parties interested in the estate on the
ground of laches or acquiescence. 5. SAME-ESTOPPEL.
And third parties, who acqùired an interest in the corpora
tion as reorganized, after having made a full examination of the records and conveyances, being attorneys at law, were chargeable with notice of the condition of decedent's estate, and complainants could not be held to have lost their rights by estoppel because the third parties
bought stock. 6. SAME-TAX TITLES-POSSESSION-LIMITATION OF ACTIONS.
That the second corporation held State tax deeds for the
taxes of 1897 and 1899, upon the mining property, by assignment, and had remained in possession of the prop
erty more than five years after obtaining the tax titles,
Appeal from Kent; McDonald, J. Submitted June 7. 1912. (Docket No. 43.) Decided July 24, 1914. Rehearing denied December 19, 1914.
Bill by Frankie E. Marsh and others against the Breen Iron Company and others for an accounting and further relief. From a decree for defendants, complainants appeal. Reversed.
Eugene Carpenter, for appellants.
MCALVAY, C. J. The bill of complaint in this cause was filed in the circuit court for the county of Dickinson, in chancery, against defendants, asking, among other things, to establish their title to one-fifth of the property of defendant Breen Iron Company, which it had unlawfully acquired from the Breen Mining Company, of which complainants claim to be the owners of one-fifth of all its stock and assets. By reason of the disqualification of the judge of that circuit, the case was removed to the Kent circuit court for hearing. The bill of complaint was answered by defendant Breen Iron Company, and, after a hearing upon the issues joined, a decree was entered denying relief to complainants and dismissing the bill of complaint. Complainants have appealed from this decree.
This record shows that, before the bill of complaint was filed in this cause, complainant Frankie E. Marsh had begun an action in trover against the Mineral Mining Company to recover the value of one-fifth of a certain quantity of ore removed by that company
under its mining lease from defendant Breen Iron Company of lands involved in this cause. This trover case was, for the reason stated, also removed for trial to the Kent circuit court. By a stipulation of the parties, the testimony taken in the trover case was treated as if taken in the chancery case, to be considered with the other proofs taken therein.
The bill of complaint in this cause is of great length and charges questionable conduct on the part of those who took part in the transaction which finally culminated in a claimed transfer of the property in the Breen Mining Company to the defendant Breen Iron Company, particularly on the part of Mr. Sawyer, secretary for many years of the Breen Mining Company. The fact that considerable of the record contains matter pertinent only to the trover case has made it difficult to make a clear statement of the facts involved in this controversy.
Complainant Frankie E. Marsh is the daughter and sole heir at law of Salmon D. Saxton, of Dickinson county, Mich., deceased. The other complainants are her children. The mother and children are all the persons who are named as devisees and legatees of the last will and testament of said Salmon P. Saxton, who died testate February 5, 1898.
In January, 1872, the testator, Salmon P. Saxton, Eleazer S. Ingalls, Thomas Breen, Bartley Breen, and Seth C. Perry, as tenants in common, were the owners in fee of an undivided one-fifth interest in and to 120 acres of timber and mineral land located in that part of Menominee county which has since become Dickinson county. This land is described as the N. W. 14 of the N. E. 14 and the N. 1/2 of the N. W. 14 of section 22, in township 39 north, range 28 west, in Dickinson county, Mich. On January 22, 1872, these parties who owned this land organized a corporation under the laws of the State of Michigan, known as the Breen Mining Company, to exist for the period of 30 years, capitalized at $500,000, and they, with their wives, conveyed by warranty deed the abovedescribed land and its mineral rights to this corporation for the sum of $500,000 in full payment for all of its capital stock. The stock was then issued to each of these persons in proportion to their respective interests in the land and mineral, except that the stock of Seth C. Perry was issued to Oscar M. Saxton, a nephew of Salmon P. Saxton, who had then purchased his interest. One hundred thousand dollars of the capital stock, being one-fifth of all of the capital stock of the Breen Mining Company, was issued and delivered to Salmon P. Saxton for his one-fifth interest in such land and mineral rights therein. These men, to whom the stock of this corporation was originally issued, continued for many years to be the owners of all the stock of the Breen Mining Company and were elected each year as directors and officers of the corporation and managed its affairs. During this time Mr. Saxton gave his personal attention to its business, acting as general manager. Under this management the timber was cut from the land and development work for iron ore was performed to a considerable extent. A railroad was secured to be built from Menominee to this property across the land and a depot located thereon to enable them to ship iron ore. Twelve acres were platted into village lots, upon which the present village of Waucedah is built. The Breen Mining Company from time to time gave mining leases to different parties to prospect for and develop iron mines on this land and to ship ore on a royalty. It appears that about $50,000 had been expended upon this property in development and drill work prior to 1904, and several iron mines had been opened from which considerable ore has been shipped, claimed to be of the value of over $200,000, and it is