payment of the tax on the land included in said acre, exclusive of the streets, described by metes and bounds. The amount tendered was 3/4 of that assessed. The treasurer accepted the money and gave receipt for an "undivided 34 of tax assessed against this description." The remaining 14 interest was returned delinquent, included in the annual petition of the auditor general, decree granted therefor, advertised and sold, report on sale made and filed and decree enrolled on June 24, 1920. The petition herein was filed on November 19, 1920, praying that the sale be set aside. It is his claim that he tendered to the treasurer and paid the tax on all the land included in said acre which was owned by him. His claim for the relief sought is based on the following provisions of the tax law (1 Comp. Laws 1915, §§ 4049, 4067):

Any person owning an undivided share or other part or parcel of real property assessed in one description may pay on the part thus owned, by paying an amount having the same relation to the whole tax as the part on which payment is made has to the whole parcel. The person making such payment shall accurately describe the part or share on which he makes payment. * * *

66% *

*

That no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation."

We may take judicial notice that unplatted lands in the corners of governmental subdivisions are frequently, if not usually, assessed without reference to the streets. The highways are never excluded in assessing such lands in townships. The tax roll indicates that the assessor and board of review when making the assessment took into consideration the fact that a part of the acre was used as streets. The description was in no way defective. Had plaintiff desired it to conform to that in his tender, he should have appeared before the board of review and asked for its correction.

The treasurer should not have given receipt as for

an undivided 3/4 interest. But the plaintiff's land was subject to the entire tax and in this proceeding in equity he cannot be relieved from payment of that part of it which remains unpaid. Spaulding v. O'Connor, 119 Mich. 45; Brooks v. Auditor General, 119 Mich. 329. We do not pass upon the question as to whether relief may be sought by petition after confirmation and enrollment as it was not raised in the court below or discussed by counsel.

The decree is affirmed.

FELLOWS, C. J., and WIEST, CLARK, BIRD, MOORE, and STEERE, JJ., concurred.

The late Justice STONE took no part in this decision.

LINDEMANN v. AMERICAN INSURANCE CO. OF NEWARK, NEW JERSEY.

1. INSURANCE-PARTIES-REAL PARTY IN INTEREST-Statutes. Where insurance companies who had insured property after its conveyance subject to mortgage admitted liability for the total loss caused by fire if other companies who had insured the property before its conveyance and who had not been notified of the conveyance were not liable for their proportionate share of the loss, and agreed to pay the total loss without action if the grantees would first bring an action against the other companies which should be under their control, and should result in failure to recover any portion of the insurance, the insurers of grantees, though interested in the result of the action, were not parties in interest within the meaning of 3 Comp.

Laws 1915, § 12353, requiring every action to be prosecuted in the name of the real party in interest.

2. SAME

CONTROL OF ACTION DOES NOT CHANGE STATUS OF PARTIES. The fact that said insurance companies, by the terms of the agreement, were given control of the present action, did not change their status in any way.

3. SAME STATUTE IN FORCE PART OF POLICY-REPEAL HAS No EFFECT.

Where 2 Comp. Laws 1915, § 9481, providing that the breach of any condition of a fire insurance policy should not render it void if the insurer was not injured by such breach, was in force and effect when the policy in question was issued, it became a part of the policy, and its repeal thereafter prior to the date of the fire in no way affected the rights of the parties.

4. SAME

REPAIRS MADE BY ANOTHER DOES NOT AFFECT INSURED'S RIGHT TO RECOVER.

If insured mortgagee had a cause of action by reason of loss by fire which rendered the building unfit for use, she did not lose it by reason of the repairs being made by the mortgagors, and the fact that the written assignment of her right to collect from defendants was not executed until after the repairs had been made would not affect the right of recovery.

5. SAME

RIGHT TO RECOVER DEPENDENT UPON PROSECUTION RATHER THAN RESULT OF ACTION NO DEFENSE.

That plaintiffs' right to recover from the other insurance companies, under the agreement, is dependent upon the prosecution, and not the result, of this action against defendants, held, no defense.

Error to Wayne; Dingeman (Harry J.), J. mitted February 7, 1922. (Docket No. 97.) March 30, 1922.

Sub

Decided

Assumpsit by Louis W. Lindemann and others against the American Insurance Company of Newark, N. J., and others on certain policies of insurance. Judgment for defendants on a directed verdict. Plaintiffs bring error. Reversed.

Stevenson, Carpenter, Butzel & Backus (Rockwell T. Gust, of counsel), for appellants.

Frederick J. Ward, for appellees.

In

SHARPE, J. On June 21, 1917, Emma Lindemann conveyed certain premises in Detroit to the plaintiffs, her sons, taking back a mortgage for $30,000. She had theretofore secured insurance on the buildings thereon in the defendant companies in the sum of $10,000. Notice of the transfer was not given to the companies. On April 25, 1918, the plaintiffs effected insurance in their own names on the same buildings in the sum of $7,000, one-half in the Royal and onehalf in the Continental Insurance Company. On September 24, 1918, the buildings were damaged by fire. All the companies were notified, adjusters agreed upon and the loss fixed at $2,209.48, after which repairs were made by plaintiffs. Proofs of loss were furnished. The defendant companies denied liability for the reason that they had not received notice of the transfer. June, 1919, the Royal and Continental companies admitting liability, each paid to plaintiffs $454.89, being their proportionate share of the loss if all the companies were liable to contribute thereto, in pursuance of an agreement (Exhibit 19) entered into between these companies and the plaintiffs. By its terms, it was agreed that plaintiffs should begin suits against the defendant companies to recover their proportionate shares of the loss, one-half of the expenses thereof to be borne by the insurance companies. It was further agreed that such suits should be under the supervision and control of the insurance companies, that they should "be solely responsible for the conduct thereof," and that in the event of a total or partial failure to recover, the insurance companies should pay to plaintiffs sufficient to fully cover their loss as fixed and interest thereon until payment. Afterwards, and on

August 15, 1919, Emma Lindemann assigned to plaintiffs her right of action against the defendant companies and on September 8th these actions to recover therefor were begun. An order consolidating them

was made pursuant to stipulation of the parties.

'At the conclusion of the proofs, defendants moved for a directed verdict, assigning the following reasons therefor:

(1) The transfer of the premises without notice to the defendants.

(2) Owing to the repairs made by plaintiffs, the insured suffered no financial loss nor was her security impaired.

(3) By virtue of the agreement, the Royal and Continental companies are the real parties in interest.

(4) The plaintiffs are entitled to recover the balance of the loss under the agreement and this suit will not lie therefor.

The trial court directed a verdict for defendants for the third reason stated and judgment was entered thereon. The assignments of error relate to such action and to certain claimed errors in the admission and rejection of testimony.

1. Was the verdict properly directed for the reason stated? The action of the trial court was predicated upon section 12353, 3 Comp. Laws 1915, and our decision in Marshall & Ilsley Bank v. Mooney, 205 Mich. 513. This section reads, in part:

"Every action shall be prosecuted in the name of the real party in interest."

At the time Exhibit 19 was entered into, Emma Lindemann had a claim against the defendants under the policies issued to her, for which suit would lie. This was afterwards assigned to plaintiffs. Plaintiffs also had a claim against the Royal and Continental companies, for which they might bring suit. These companies apparently conceded their liability to pay the entire loss in case recovery of a proportionate share