to sustain the decree, unless it is pointed out in the last paragraph, where it is said,—

"It would be a great injustice if in the instant case the defendant could take over the land without paying the taxes which it was the duty of the owner to pay."

No regard is paid to the rights of defendant Overton, who purchased a part of the land after the redemption was made.

In my opinion, no case is cited which sustains the decree. No question is presented of the right of a mortgagee, by agreement with the mortgagor, or by virtue of a statute, to add to the sum due on the mortgage before foreclosure the taxes he has been obliged to pay. Decisions affirming that right are not in point here. This is not a case like G. F. Sanborn Co. v. Alston, 153 Mich. 456, in which a plaintiff seeking equitable relief is granted it upon condition that he do equity. It is not a case like Hopkins v. Sanders, 172 Mich. 227, in which the taxes paid are sought to be added to the amount of the decree in a chancery foreclosure. In Sucker v. Cranmer, 127 Minn. 124 (149 N. W. 16), the question presented is stated in the opinion to be:

"Has a mortgagee, who at the foreclosure sale bid in the property for the full amount of the debt then due, but while the year of redemption ran, disbursed money in payment of taxes and in redemption from tax sales, no remedy if he has failed to file and furnish an affidavit in accordance with section 8172, G. S. 1913, when redemption is made by the mortgagor, as owner, without reimbursement for such tax payments, the mortgage containing a provision that the mortgagee may pay delinquent taxes and charge the amount to the mortgagor or the then owner, or at his option secure tax title to the property?"

No right of the mortgagee is involved in the case at bar and the owner, who redeemed it, is not the mort

gagor. And in Wyatt v. Quinby, 65 Minn. 537 (68 N. W. 109), the question,

"Can a mortgagee after a foreclosure of his mortgage by advertisement, and a sale of the mortgaged premises, pay taxes due thereon at the date of the sale, and reimburse himself for the amount so paid, from the proceeds of the sale of the premises?"

-was answered in the negative. In Gorham v. Insurance Co., 62 Minn. 327 (64 N. W. 906), the Minnesota court held, with reference to the Minnesota statute,―

"The statute and the mortgage secure to the mortgagee the right to pay the taxes at any time before the mortgage debt is extinguished, and when he does so pay the amount thereof is a part of the mortgage debt, an additional lien on the premises,-'collectible with, as a part of and in the same manner as the amount secured by the original lien.'

We need not seek light from other jurisdictions. In Vincent v. Moore, 51 Mich. 618, the bill was filed to enforce payment of a sum of money paid by complainants to redeem lands of defendant from a tax sale, upon which land, at the time of the redemption the complainants had a mortgage. The land was sold in foreclosure proceedings, bid in for the amount of the mortgage debt, and defendant redeemed from the sale. In part, this court said:

"What complainants were compelled to pay for the protection of their mortgage did not constitute a separate and independent lien on the land; it could become a lien only in connection with and because of the mortgage, and could not exist independent of it. When therefore complainants took proceedings which resulted in a satisfaction of the mortgage, any lien which may have existed before for the taxes paid was necessarily discharged, whether the amount paid was claimed in those proceedings or not. All that complainants could claim by virtue of the mortgage they were bound to claim in those proceedings, and they

205-Mich.-45.

could not at pleasure split up their demand and make the parts the subjects of separate suits."

In Walton v. Hollywood, 47 Mich. 385, what is determined is fairly stated in the syllabus. The reasoning employed is convincing and not to be easily answered. The head notes are:

"If, before foreclosure, a mortgagee pays taxes and insurance which the mortgager ought to have paid the sum paid may be included in the amount for which he forecloses, even though the insurance was taken for the full period allowed for redemption.

"Where a purchaser on foreclosure, by way of keeping good his lien during the period of redemption, pays taxes and insurance which, under the mortgage, the mortgager himself was bound to pay, he cannot, when farther instalments fall due, again resort to the power of sale for the purpose of securing re-payment. The power is exhausted by the original foreclosure, and redemption may be had on paying the amount bid at the sale, with interest."

These and other cases to a like effect I regard as sustaining the conclusion that the decree appealed from is wrong and should be reversed and one entered here dismissing the bill, with costs to appellants.

BIRD, C. J., and STEERE, BROOKE, FELLOWS, and STONE, JJ., concurred with OSTRANDER, J.

INDEX.

ABANDONMENT-See RAILROADS (1-9).

ABATEMENT AND REVIVAL.

1. Under 2 Comp. Laws 1915, § 10117, a cause of action
against a railroad company for damages caused by fire
survived the death of the plaintiff. Sayre v. Detroit, etc.,
R. Co., 295.

2. The transfer of a plaintiff's title or interest in a pending
suit at law does not abate it, but the suit may proceed
as instituted so long as the assignee acquiesces in the
proceeding, notwithstanding 3 Comp. Laws 1915, § 12353,
providing that actions shall be prosecuted in the name of
the real party in interest. Id.

3. Where a plaintiff dies pending an action at law, it is
necessary for the death to be suggested on the record and
the suit to be continued in the name of the personal
representative, under 2 Comp. Laws 1915, §§ 10113-10116.
Id. 296.

4. Where, under the statute (2 Comp. Laws 1915, §§ 10113-
10116), defendant could have brought on the case at any
time and had it dismissed on motion, the court will not
place all the responsibility for a long delay upon the
plaintiff and refuse a trial upon the merits. Id.

See LIMITATION OF ACTIONS.

ABUSE OF DISCRETION-See APPEAL AND ERROR (9).

ACCEPTANCE-See CARRIERS (3, 4); RAILROADS (2).

ACCEPTANCE OF PROCEEDS BY REMAINDERMAN - See
ESTOPPEL

ACCESSORY-See CRIMINAL LAW (8).

ACCOUNTING See PARTNERSHIP.

ACKNOWLEDGMENT BY FATHER-See ILLEGITIMATES (4, 7).
ACTIONABLE DECEIT-See FRAUD (2, 5).

ACTIONABLE NEGLIGENCE-See RAILROADS (13, 14).

ADDITIONAL COMPENSATION-See MASTER AND SERVANT (12).

ADEQUATE REMEDY AT LAW-See SPECIFIC PERFORMANCE (1).

ADJOURNMENT-See JUSTICES OF THE PEACE (2).

ADULTERY.

Mere opportunity to commit adultery is not sufficient to
establish this offense; there must be evidence of such
facts and circumstances, times and places, and associa-
tion together as would naturally lead a man of ordinary
care and prudence to the conclusion that such parties
were having illicit sexual intercourse. Nelson v. Sandel,
73.

See HUSBAND AND WIFE (1).

AFFIDAVIT FILED AFTER DECISION-See APPEAL AND ERROR
(7).

AFFIRMANCE-See SALES (2).

AGE OF CONSENT-See RAPE.

AGENCY-See PRINCIPAL AND AGENT.

AIDING AND ABETTING-See CRIMINAL LAW (9).

ALIAS SUMMONS-See PROCESS.

ALIMONY-See CONTEMPT; DIVORCE (2, 6, 7).

AMBIGUITY-See FRAUDS, STATUTE OF (1).

AMENDMENT-See PLEADING (2, 5, 6).

APPEAL AND ERROR.

1. Where two cases, each involving less than $500, were
tried separately in justice's court, but on appeal to the
circuit court, by agreement of the attorneys, were com-
bined and tried as one case, and a judgment for more
than $500 was entered, the contention that appellant was
not entitled to the issuance of a writ of error as a matter
of course, under the provisions of Act No. 172, Pub. Acts
1917, is without merit. People's State Bank v. Frisbee, 67.
2. Upon a motion to direct a verdict, the testimony most
favorable to the other party, together with its legitimate
inferences, must be accepted. Armstrong v. Rachow, 168.
3. In a case tried by the judge without a jury, the findings
of fact must be accepted by the appellate court unless they
are against the overwhelming weight of the evidence; if
against the overwhelming weight of the evidence, if they
do not support the judgment, or if the trial judge errone-
ously considered or refused to consider controlling testi-
mony, this court as a reviewing court must reverse.
Kotzke v. Kotzke's Estate, 185.

4. Where controlling facts were established by undisputed
testimony which the trial judge regarded as incompetent
and failed to take into consideration, and therefore made
no finding thereon, it is the duty of the appellate court to