appears that the prosecuting officers in this case could not have known when the information was filed that the witnesses called in rebuttal were material witIn principle the point is covered in Hill v.

nesses.

People, 26 Mich. 496.

The charge of the court is criticised. We may say here that it was not error for the court to refuse to eliminate the more serious charge. The court could not have properly ruled that there was no testimony sustaining the serious offense charged in the information. It is contended that the charge was argumentative, and that the argument made therein was unfair to respondent. No requests to charge appear in the record, and no modification of the charge given appears to have been requested. The charge is argumentative. See People v. Dupree, 175 Mich. 632 (141 N. W. 672), and cases cited. A particular argument is noticed. The complaining witness had testified, in substance, that she told the wife of respondent that she

"Wouldn't have pushed the case but for others; that is the way I felt about it; I hated the notoriety. It is through others that the case has gone as far as it has; it wasn't my wish at all."

She had testified that she felt that respondent was going to kill her. She denied making certain other statements, and denied that her mother had made certain statements, whereupon respondent called a witness, who testified as follows:

"Q. Whether or not you asked, or Mrs. Jansma asked in your presence and in the presence of Mrs. Crater and Miss Crater, what about that rape that I saw in the paper last night?

"A. Yes, sir.

"Q. Whether or not Mrs. Crater answered that he had not committed any rape?

"A. Yes, sir; and the girl then spoke up and said, 'No, and he didn't try to;' that was just the way she said it.

"Q. Whether or not she said she wished the case could be dropped out of court then and there? "A. Yes, sir.”

In the course of the charge the court said:

"Was that motive or intent the accomplishment of his purpose in having intercourse with this girl, and, the fact that the girl has testified that she didn't want

-or would have wished that the case might not have been brought, should not be considered or taken into account, because you can all readily understand what an unpleasant notoriety the publicity of this thing gives to a young girl in a community, and she undoubtedly shrank from that publicity and coming to court on a case of this kind; her natural feelings would be that, not having been injured so as to permanently disable her, she would rather drop it than to have the matter prosecuted."

I find no reference in the charge to the testimony above quoted. In view of the fact that the case must be again tried, further reference to the charge is omitted, except to say that in the main correct rules were given for the guidance of the jury.

The exceptions, as herein indicated, are sustained, and a venire de novo is awarded.

MCALVAY, C. J., and BROOKE, KUHN, STONE, BIRD, MOORE, and STEERE, JJ., concurred.

1

Where plaintiffs conveyed to a driving park association a parcel of land, upon condition, as expressed in the instrument, that the property be used as a fair grounds and driving park and for no other purpose, and should revert to the grantors if the second party should abandon them for the purposes described, evidence, in an action of ejectment, that defendant association for upwards of eight years had not used the land for such purpose, had allowed the buildings to become dilapidated, that one of the officers of the association took control of the grounds, kept and exercised horses on the track, and permitted other persons to do so, also permitting a local driving club to use them for a season, for rent, and permitting baseball games to be held there, that meetings of the stockholders or those who held certificates for shares of stock were called annually but the stockholders were not all notified and no records were kept of the proceedings, held, to sufficiently establish the title of plaintiffs by reversion pursuant to the condition of the deed.

Error to Muskegon; Sullivan, J. Submitted April 23, 1914. (Docket No. 82.) (Docket No. 82.) Decided June 1, 1914.

Ejectment by Seth D. Estes against the Muskegon County Agricultural & Driving Park Association and others. Plaintiff having deceased, the cause was revived in the names of his heirs, Simeon Estes and others. Judgment for plaintiffs. Defendants bring error. Affirmed.

Turner & Turner, for appellant.

Cross, Vanderwerp, Foote & Ross, for appellees.

OSTRANDER, J. Seth D. Estes and his wife, by indenture dated August 6, 1875, for a stated consideration of $1, conveyed certain premises to the Muskegon

County Agricultural & Driving Park Association, of Muskegon county, Mich., with the usual covenants of seisin, against incumbrances, and for quiet enjoyment. Following the covenants and concluding the instrument is:

"Said land to be used for the purposes of fair grounds and driving park and for no other purpose, and to revert to said first parties, their heirs and assigns when abandoned by said second party for the purpose aforesaid."

In 1910 the grantor made demand for possession of the premises from persons then occupying the same, and later, and in June, 1911, began this action of ejectment against the association grantee and the persons in possession. The cause has been twice tried, and plaintiff has recovered. It is plaintiff's contention that since the year 1902 the premises have not been used for the purposes stated in the deed, and for no other purpose, but, so far as such stated use is concerned, have been abandoned. It is stated in defendant's brief that:

"It was the claim of the defendant and appellant that naked conditions in a grant create no agreement on the part of a grantee accepting a deed, and that specific performance of such conditions are not enforceable by action.'

Beyond this there is apparent no contention that the grant was not upon a valid condition subsequent, entitling plaintiff to recover in this action upon proof of breach of the condition. The contention presented in argument is that upon the question of breach of the condition improper testimony was admitted and improper instructions were given to the jury. The testimony for plaintiff tends to prove that the defendant association was organized, although irregularly organized, under the provisions of chapter 71 of the Compiled Laws of 1871; its articles of association dated May 29, 1875, acknowledged June 7, 1875, were

filed with the clerk of Muskegon county June 14, 1875. These articles appear to have been adopted at a meeting held May 18, 1875, and at an adjourned meeting had May 21, 1875, a resolution was adopted tendering the thanks of the association to certain persons, among them S. D. Estes, for liberal donations of land for fair grounds and driving park. The by-laws provided, among other things, that no person owning less than four shares of stock (the par value of which was fixed at $25 each) or a life member could be eligible to the office of director, and that all persons paying into the treasury the sum of $1 annually should have the privilege of entering articles and animals for exhibition at a fair without charge, and be entitled to vote for officers. It does not affirmatively appear that the by-laws were adopted. Capital stock was fixed at $10,000, and certificates for shares were issued. Section 2 of the act referred to provides that an association organized under the act may take, purchase and hold real estate for the purpose of the incorporation, "but for no other purpose."

The defendant association paid nothing for the land sought in this suit to be recovered. It was one of several parcels conveyed to the association upon condition. The land was fenced, buildings erected, a race track with grand stand erected, together with a dwelling house for a caretaker. Agricultural fairs were held until and including the year 1902; the race track being used for horse racing. The buildings became dilapidated, some fell down, the lumber of which they were built was some of it taken and carried away, ⚫ and when this suit was begun few were left except the grand stand and stables. After 1902 one John Williams, claiming to be the secretary of the defendant association, took charge of the grounds, kept and exercised horses there, and other men kept and trained horses there. A local driving club used them one season, paying Williams something for their use.