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to the property through warranty deed from , ation or Shaver had any title or interest in Ault, dated October 27, 1905, conveyed to the the property. In this situation of the record plaintiff association by warranty deed, and it plaintiff's petition should have been dismissed, is now the owner in fee simple of said prop and, as the tax deed appeared to be regular erty. It is then alleged that on February 14, on its face, there should have been a decree 1906, a tax deed was executed by the treas in favor of defendant establishing and quiet. urer of Polk county and delivered to the de ing his title. The decree entered is reversed, fendant Moore, under which he, said defend- and the cause is remanded for a decree in ant, now asserts title to the property. Facts harmony with the conclusion of this opinion. are then alleged based on which plaintiff Reversed. claims that said tax deed was improperly executed and is void, and that the period for redemption from the tax sale has not expired. And the prayer is that the right to redeem be

BAKKER et al. V. FELLOWS, Drain Com'r established. Defendant, in answer, denied

for Ottawa County, et al. each and every allegation of the petition, ex (Supreme Court of Michigan. July 1, 1908.) cepting only those relating to the fact of the 1. DRAINS—APPLICATION—“FREEHOLDER.” issuance of the tax deed, and his claim of A lessee for life is a "freeholder," within title thereunder to the property. In a cross

Comp. Laws, $ 4319, requiring an applicatiou

for a drain to be signed by 10 freeholders. petition defendant asserted his title to the

[Ed. Note.-For other definitions, see Words property under his tax deed, and prayed that

and Phrases, vol. 3, pp. 2968–2970; vol. 8, p. his ownership be adjudged to be absolute and 7607.] his title quieted. Upon the issue thus framed, 2. LANDLORD AND TENANT-LEASES-SIGNING the case went to trial.

BY LESSEES-ACCEPTANCE AND POSSESSION. One ground relied upon for a reversal

A lease for life, though signed by the less

ors, and not by the lessees, who make covenants and we shall not have occasion to notice any

therein, is valid; it having been accepted and other-is that plaintiff wholly failed to make possession having been taken under it. proof that at the time of the tax sale, which [Ed. Note.-For cases in point, see Cent. Dig. took place December 1, 1902, it, or the person

person | vol. 32, Landlord and Tenant, § 66.) under whom it claims title, had title to prop 3. DRAINS-APPLICATIONS-FREEHOLDERS. erty. And reliance is placed on Code, g 1445,

Where a father promised to buy his son

a farm, and bought land, taking title in his own which provides that no person shall be per

name, and then told the son it was his farin, mitted to question the title acquired by tax the son, who entered into and continued in posdeed without first showing that he or the per- session, occupying and working it for years, conson under whom he claims title had title to

structing buildings, and having it assessed to

himself, and paying the taxes, has in equity a the property at the time of the sale. This

right to the premises in fee; and so is a provision of the statute, we have frequently freeholder within Comp. Laws, $ 4319, requirheld, has application to actions brought in

ing an application for a drain to be signed by

10 freeholders. equity to redeem. The cases are collected

Ostrander and McAlvay, JJ., dissenting. under the section of the Code referred to, and we need not cite them. This takes us to the Error to Circuit Court, Ottawa County; evidence, because it will be observed that the Philip Padgham, Judge. allegations of the petition respecting title Certiorari by Jacob Bakker and another were met by a specific denial in the answer. | against Edwin Fellows, drain commissioner Plaintiff called as a witness one Wilson, who of Ottawa county, and Edward P. Kirby, testified that up to the time the plaintiff went probate judge of said county. The circuit into the hands of a receiver he was its sec- court affirmed the order of the probate judge, retary ; that the property in question "was

| and plaintiffs bring error. Affirmed. in charge of the association in September,

Walter I. Lillie and Charles H. McBride, 1905, and had been for more than a year or

for appellants. Smedley & Corwin and two. We had been renting it and collecting rents. * * * The association had formerly

Corie C. Coburn, for appellees. had a mortgage. It did not have the record

HOOKER, J. This is a cause in which title at that time." J. E. Mershon was called as a witness, and he testified that he was ap

we are asked to review drain proceedings, pointed receiver of the association October 1,

and we take this opportunity to commend 1905, and "thereafter, in order to perfect the

counsel for the exceptionally clear and contitle to this property in the association, I pro

cise manner in which both record and briefs cured deed, 'Exhibit A,' conveying the title

present the meritorious questions involved. to the plaintiff association.” The deed re

An application was duly filed with the drain ferred to was introduced in evidence, and is a

commissioner on February 15, 1907. It ap warranty deed, dated April 9, 1906, executed

peared to be signed by 10 persons, allegedi to by L. B. Shaver, and conveying to the plain

be freeholders of the proper township, and tiff association the property in question. Here

it alleged that 5 of these, naming them, were the evidence on the subject ends, and it will owners of land, liable to be assessed for the be seen that there is nothing upon which to proposed drain. On March 28, 1907, the combase an inference even-much less to find as missioner filed his first order of determina fact—that on December 1, 1902, when the ation, and being unable to obtain the right tax sale took place, either the plaintiff associ- l of way across the premises of the appellauis (all others having released), he filed his peti- ; out. And the said parties of the second tion for special commissioners. On June 5, part do hereby hire the said premises for the 1907, the appellants filed their objections. term as above mentioned and do covenant They were, in brief: First, that the applica- , and promise to pay to the said parties of the tion was not signed by 10 freeholders; sec first part, their representatives and assigns, ond, that it was not signed by five or more for rent of said premises for said term, the owners of lands liable to assessment for suin of one 'dollars' and other good and valbenefits; third, it alleged that one Ann V. uable consideration paid by said second parOsborne, described in the petition as such ties to said first parties, the receipt whereof freeholder and owner, was not such a free- | is hereby acknowledged, the same having been holder, or a "freeholder at all.” A hearing | paid in advance before the ensealing and deupon the petitions was bad, and on July 10, livering of this lease. Said parties of the 1907, the probate judge made the usual order second part further covenant that they will appointing commissioners, expressly overrul not assign nor transfer this lease or sublet ing the objection of appellants. On July 10, said premises or any part thereof without the 1907, appellants filed with the probate judge written assent of said parties of the first a petition for rehearing, based upon the fur part." This document was signed only by ther ground that another of said signers of the parties of the first part, by whom it was the petition was not a freeholder, and that also acknowledged. Nothing indicates that it the fact was unknown to them at the time of was not delivered, or that Mrs. Osborne was the former determination. A hearing was not in exclusive possession under it, as sole had upon this application on July 15th, but owner of the interest intended to be conveyed the probate judge denied it, on the grounds by it. The commissioner supposed that tbat he had no authority to grant such re Arend K. Brouwer was the owner of the bearing. On July 23, 1907, the special com premises occupied by him, and a freeholder, missioners filed their report with the probate and he never heard anything to the contrary court, finding it necessary to take appellants' until the petition for rehearing was filed. property, and awarding each $1 damage. On He then made inquiries, and was informed July 24th a final order of determination was that said Brouwer's father promised to buy made and filed, and on July 31st a written | him a farm in Olive township; that he bought notice of intention to review by certiorari this land, taking title to himself. Subsewas served on the commissioner by appel quently he told his son that it was his farm, lants. On August 7, 1907, the affidavit for and the son entered into and afterwards concertiorari was filed, and the writ was issued tinued, and was in possession at the time of by the circuit court. The drain commission these proceedings; that in the interval he er made a return on August 19, 1907, simply had occupied and worked the land for sev. denying the allegations of the affidavit, and eral years, built buildings, had it assessed asserting the regularity of all proceedings. to himself, and paid the taxes in every re On August 23, 1907, a petition was made spect as an owner, except that the father had for a further return, and the probate judge never deeded the land to him. Upon the was made a party by order of the court. On hearing the learned circuit judge was of the the 27th of August, 1907, the probate judge | opinion that, under the proofs, Ann V. Osmade a return of the proceedings and ev- | borne was a freeholder, and owner of lands idence taken before him, and the commis | liable to assessment and that “under the sioner filed a further return.

showing made in this case as to the quesFrom these the following facts appear, tion of whether one Arend K. Brouwer was viz., first, Ann V. Osborne's interest in land such a freeholder as claimed by plaintiffs was confined to such as was conveyed to her was not a proper subject or matter for the by a writing attached to the return, whereby court's consideration upon the record as several parties, named and described as par presented." The order of the probate judge ties of the first part, in consideration of rents was affirmed. The cause is before us by and corenants specified, did "let and lease to writ of error. George Osborne and Ann V. Osborne, his wife, The only questions discussed in appellants' parties of the second part, premises describ brief are whether the application for the ed. for the term of the natural life of both drain was jurisdictionally defective: First, said second parties, on terms and conditions because Ann V. Osborne was not a freespecified. It expressly stated that the leaseholder and a landowner; second, because should terminate only on the death of both Brouwer was not a freeholder. of said second parties. “Provided, that in

Freeholders. case any rent shall be due and unpaid, or if default be made in any of the covenants Comp. Laws, & 4319, provides for an apherein contained, then it shall be lawful for plication signed by not less than 10 freethe said parties of the first part, their certain | holders of the township, 5 or more of wliom attorney, heirs, representatives and assigns, shall be owners of lands liable to assessto re-enter into, repossess the premises, and ment for benefits. Under our law one who the said parties of the second part, and each has an estate for life in land is a freeholder, and every other occupant, to remove and put | See Comp. Laws, $ 8787; Crouse v. Michell, 1:30 Mich. 336, 90 N. W. 32, 97 Am. St. Rep. 1 estate of a vendee in a land contract, in pos479. It is contended that the instrument in session, is an estate of inheritance. Starkquestion was a mere unilateral agreement; weather v. Chatfield, 149 Mich. 443, 112 N. but we think that, when accepted and pos- W. 1071. So husband and wife owning land session taken under it, it was a good and by entireties have each of them an estate for valid lease, although not signed by the les- | life. But one of them is not an owner, withsees. Jones, Ld. & Ten. $$ 75, 77-79. In in the meaning of a statute requiring a petiasmuch as this was a valid lease for life to tion for a public improvement to be signed Mr. and Mrs. Osborne, she had a freehold by owners of property. Auditor General v. estate. The case of Brouwer is different. Fisher, 84 Mich. 128, 47 N. W. 574. An appliThe claim that he is a freeholder within the cation for the laying out of a drain is jurisstatute is that he had, in equity, a right to dictionally sufficient, not when it is signed the premises in fee. We are of the opinion by 10 freeholders, 5 of whom shall have esthat this is true, under the proof upon the tates in land which is liable to assessment authority of Maas v. Anchor Fire Ins. Co.,

for benefits, but there must be 5 signers who 148 Mich. 434. 111 X. W. 1014, and Stark. are owners of such land. It is the boundary Weather v. Chatfield, 149 Mich. 443, 112 N. lines of each owner's land which the survey W. 1071.

is required to show. The names of the ownOwnership.

ers of every tract to be traversed by the

drain must appear in the application for the The remaining question relates to the

| appointment of commissioners, and it is to title of Mrs. Osborne. Counsel for the com

owners that the citation is issued. It would plainant, asserting that, although she may

seem that the owner of the fee, alone, could be called a freeholder, she was not an owner

effectively release the right of way. The of premises liable to assessment for bene

term "owners of land" as employed in Comp. fits. Inasmuch as we have reached the con

Laws, $ 4319, means persons with whom the clusion that Brouwer was the equitable drain commissioner may make final and conowner in fee, it becomes unnecessary to con

clusive arrangements, persons whose land sider Mrs. Osborne's ownership; there be

is liable to be affected by levies and by the ing 5 owners of land subject to assessment exercise of the eminent domain. If it were exclusive of her.

otherwise, the proceeding might be instituted It is unnecessary to discuss the question

upon the application of persons, none of of waiver, but our disposition of the merito

whom had any estate to be affected thereby. rious question regarding Brouwer's title is

| If it were otherwise, the 5 signers, claimed not intended to imply that it was seasonably to be owners, might all of them be widows, raised.

occupying dower lands. The argument that The judgment is affirmed.

a life tenant is an owner because impeach

able for waste for failure to pay the taxes GRANT, C. J., and MONTGOMERY, seems to me to be unsound. The statute does MOORE, and CARPENTER, JJ., concur. not refer to persons who are liable to an asBLAIR, J., concurred in the result.

sessment, or who by contract, or by opera

tion of law, are obligated to the landlord or to OSTRANDER, J. (dissenting). I think it the remainderman to pay the taxes. It redoubtful if Mrs. Ann V. Osborne is shown to fers to land which is liable to an assessment be a freeholder. This for the reason that it for benefits, and to the owners of such land. is entirely uncertain whether she has ever Moreover, I am not now prepared to deterassumed the obligations of a life tenant with mine whether, in the absence of a contract, a respect to the land. Rent is reserved in the life tenant is under obligations to pay the lease, and is then receipted for. There is no extraordinary and sometimes very great exexpre ss obligation to pay taxes. The evi- | penses, arising from a public improvement dence is that she holds a certain instrument, like a drain, assessed as for alleged benefits sufficiently described in the opinion of Mr. to land. This court has sustained applicaJustice HOOKER, and is in possession of tions for drains by a liberal interpretation the land. Admitting that she is a freeholder, 1 of the term "freeholder" where that term is it seems to me to be clear that she is not an employed in the statute. To hold that the owner of the land. We may assume that the term "owner," used in the statute in the Legislature might employ the word "owner". same connection, signifies nothing different in such a connection, and for such a purpose, in meaning is, in my opinion, to deny to pubthat it would mean something besides owner lic and to private interests a safeguard which of the fee, or of the legal or equitable title. the Legislature intended should exist. But it has not done so in the statute under Objections to the appointment of commisconsideration. On the contrary, the words sioners were that the application was not “freeholders" and "owners” are both employ- signed by 10 freeholders, did not have signaed in the statute, and in such connection that tures of 5 owners of land liable to assessin my opinion we are obliged to give them ment, and that Ann V. Osborne was not a freeclifferent meanings. The term "freehold es- holder. These objections were all overruled, tate" is legally definitive of both an estate and an order made appointing commissionfor life and of an estate of inheritance. The ers. Thereupon plaintiffs in certiorari moved

in the probate court for a stay of proceedings , Brouwer's name is not included. Ann V. Osand rehearing, setting out that Arend K. | borne is not an owner of land liabie to assessBrouwer was not a freeholder. The peti- ment. Consequently, without some further tion was dismissed, upon the ground of want showing, the probate court should have deof jurisdiction to grant a rehearing. In the clined to appoint special commissioners. The affidavit for the writ of certiorari it is aver facts in the application had been traversed red that the application was not signed by 10 and shown to be untrue. It is the drain comfreeholders, nor by 5 owners of land liable missioner then who, to save the application, to an assessment for benefits; that Ann V. asserts that there are, in fact, 5 signers who Osborne is not an owner, and that Arend K. are owners. It is. said that Brouwer is an Brouwer is not an owner nor a freeholder; owner. It was not so represented in the apthat the application is signed by but 4 own plication, and if he is not an owner, then the ers of land ; that the probate court erred in drain commissioner has not shown that the its refusal to entertain the petition for a re- | application is sufficient in law. It seems to hearing. The answer and return denied these | me that he is not in a position to urge that allegations, generally. Petition was made plaintiffs have waived the question of the for an order for a further return, and one qualifications of Brouwer. The inquiry is, was ordered. In this return it is set out and at all times has been, is the application that no objection was raised before the pro | in fact signed by 5 owners of land liable to bate court on the hearing for the appoint an assessment for benefits? The inquiry was ment of commissioners in regard to Arend seasonably made, and the decision is sought K. Brouwer, and that, therefore, any and all to be reviewed in the statute manner. The objections were waived. The circuit court decision was wrong, unless, as asserted by was of Opinion that the qualifications of Brou the commissioner, Mr. Brouwer is an owner. wer were not the subject of proper inquiry, | In my opinion, he is not an owner. He is and did not determine whether he was free not an apparent owner. Reliance is placed holder or owner. His qualifications, so far upon the decisions of this court in Twiss v. as disclosed by the record, by the return of George, 33 Mich. 253; Insurance Co. v. Fogelthe drain commissioner, are: "And this de- man, 35 Mich. 481; Dupreau v. Insurance fendant, further answering, says that he al- | Co., 76 Mich. 615, 43 X. W, 583, 5 L. R. A. ways supposed Arend K. Brouwer to be the 671; Convis v. Insurance Co., 127 Vich. 616, owner of land in said township of Olive and 86 N. W. 994; Maas v. Insurance Co., 148 a freeholder; that his name so appeared in Mich. 432, 111 N. W. 1014. Certainly these said application for said drain, and that he decisions are being carried far afield when Derer heard anything to the contrary until used to support the proposition advanced after the judge of probate had made his or- here. Starkweather v. Chatfield, 149 Mich. der appointing the 3 special commissioners, 443, 112 N. W. 1071, is authority for no such and notices had been served on them, and contention. I see no occasion to refine upon they were entering upon their duties as such the meaning of the term "owner of land," or

pecial commissioners, when these plaintiffs to suppose the Legislature intended in its use appeared before the probate court and asked to designate other than the one in whom prifor a rehearing, setting up, for the first time, ma facie is the fee-simple title. In any event, that arend K. Brouwer was not an owner of the statute owner must be a freeholder. Mr. land in the township of Olive, and that this | Brouwer is not a freeholder. His interest in was the first knowledge that this defendant the land is represented and is evidenced by had in regard to the same. That he made his possession and by a parol promise. inquiries thereafter, and was informed that The judgment below should be reversed, the father of Arend K. Brouwer promised to | and the proceedings quashed. by him a farm in the township of Olive, and that he did buy him a piece of land and told MCALVAY, J., concurred with OSTRANÅrend K. Brouwer that it was his, and that | DER, J. Arend K. Brouwer entered into the possession of the same, and built buildings on the same, has occupied and worked the same for seyeral years, has had the same assessed to him

PEOPLE v. ANDRE. 00 the tax rolls, has paid the taxes on the (Supreme Court of Michigan. July 1, 1908.) same, and in every respect is the owner of 1. MORTGAGES-OPERATION-LEGAL TITLE. the same, except that this defendant has been A son owning real estate conveyed a half informed that the record title still stands in

| interest therein to his father as security for a

debt. Thereaster the son and father conveyed the name of the father of said Arend K.

1. the premises to a third person, and as a part of Brouwer."

the transaction a contract for the conveyance I am of opinion that the question was one of the premises to the son, on his paying a to be determined by the court below. The | specified sum within a specified time, was exe

cuted. The contract stipulated that the son application for the drain is signed by but 10

should remain in possession of the premises. [wessons, and it sets out the names of the 5 The execution of the deed and contract was simers, who are represented to be owners of

to enable a creditor of the son to obtain pos

session of the property, and save the expenses of laod liable to an assessment for benefits.

a foreclosure of mortgages securing the indebtAmong the names is that of Ann V. Osborne. | edness. Held, that prior to the specified time

the title and ownership of the property were in of this interview it is alleged that the false the son.

representations relied upon were made. The 2. Sales-REMEDIES OF SELLER-STOPPAGE IN

information sets out the false pretenses and TRANSITU.

A delivery of goods by a seller to a carrier the furnishing of the eggs in reliance therefor transportation to the buyer is in law a de on, as follows: "That he, said William Anlivery to the buyer, subject to the right of

dre, was the owner of the Grand Ledge Cold stoppa ge in transitu. [Ed. Note.-For cases in point, see Cent. Dig.

Storage plant, located, at Grand Ledge, Mich., vol. 43, Sales, § 377.]

and that he, the said William Andre, desired 3. FALSE PRETENSES-EVIDENCE-ADMISSIBIL

to purchase eggs for the purpose of storage, ITY.

which said eggs were to be stored in the East On a trial for false pretenses, inducing by said William Andre; that he desired, to prosecutor to sell on credit goods to accused, it appeared that accused referred prosecutor to

secure as many eggs as possible, and was a bank for information as to his financial con

therefore willing to spring the price in order dition. Accused' had filed a financial statement to secure early eggs for said purpose of storwith the bank, showing his condition. Prosecu

age; that the storage at Grand Ledge was tor, after delivering goods to a carrier for transportation to accused, and before delivery

to be used by him, the said William Andre, by the carrier to him, inquired of the bank as later for the purpose of storing butter; that to accused's financial condition, and the bank he, the said William Andre, on the date aforereplied by stating that he had on file with the

said, also gave to said George J. Scoefield the bank a statement showing that he was worth a large sum specified above his liabilities and

name of the Grand Ledge State Bank as a exemptions. Held, that the statement, together party to whom he could refer to make inwith evidence that it was false, was admissible

quiry as to said William Andre's financial on the issue of accused's intent in making the representations constituting the false pretenses

condition and responsibility; that thereafter, complained of.

and on, to wit, the 7th day of May, A. D. 4. SAME.

1906, the said George J. Scoefield inquired Whether prosecutor relied on the financial

of the said Grand Ledge State Bank as to statement and was induced thereby to make shipments of goods to accused was for the jury;

the financial standing and responsibility and for if prosecutor, except for the statement, honesty of the said William Andre, and was would have stopped the goods in transitu, the then and there informed by the cashier of jury could find that prosecutor relied on the

said Grand Ledge State Bank that it, the statement. 5. CRIMINAL LAW – APPEAL - HARMLESS ER

Grand Ledge State Bank, had on file a state ROR-ERRONEOUS ADMISSION OF EVIDENCE. ment made by the said Wm. Andre, which

Where, on a trial for false pretenses, ac showed that the said William Andre was cused admitted his insolvency at the time the

worth the sum of $18,000 over and above representations complained of were made, the error, if any, in admitting in evidence a cir

all debts, liabilities and exemptions, and, becular subsequently made by accused's attorney, lieving the false pretenses and representashowing a statement of the condition of accused,

tions so made as aforesaid by the said Wm. was not prejudicial.

Andre, he, the said George J. Scoefield, was 6. WITNESSES-ATTORNEY AND CLIENT--PRIV

then and there deceived thereby, and was ILEGED COMMUNICATION.

A statement made by a client while at a then and there induced by means of said conference with his attorney and others is not false pretenses and representations so made confidential, and is not privileged, and the at.

as aforesaid to deliver, and did thereafter, torney may testify thereto. [Ed. Note.-For cases in point, see Cent. Dig.

and on, to wit, the 11th day of May, A. D. vol. 50, Witnesses, 88 761, 704, 705.)

1906, deliver to said Wm. Andre, 18 cases Exceptions from Circuit Court, Eaton Coun

of eggs of the value of $111, and did on the

12th day of May, A. D. 1906, deliver to said ty; Clement Smith, Judge.

Wm. Andre 150 cases of eggs of the value William Andre was convicted of obtaining

of $700, all of the value of $811, of the propmoney by false pretenses, and he brings ex

erty of him, the said Geo. J. Scoefield; that ceptions. Reversed, and new trial granted.

the said Wm. Andre did then and there Argued before GRANT, C. J., and BLAIR,

designedly, and by means of said false preMOORE, CARPENTER, and MCALVAY, JJ.

tenses and representations made as aforeJohn E. Bird, Atty. Gen., and Elmer N. Pe said, unlawfully and fraudulently obtain ters, Pros. Atty., for the People. Frank A. from the said George J. Scoefield the said Dean, for defendant.

168 cases of eggs, of the goods and property

of the said George J. Scoefield, with intent BLAIR, J. Exceptions before sentence to then and there to cheat and defraud him, review conviction of obtaining money by the said Geo. Scoefield, of the same, whereas, false pretenses.

in truth and in fact, the said William Andre Defendant Andre was engaged in the busi was not on said 28th day of April, A. D. ness of buying and selling eggs, poultry, etc., 1906, the owner of the said Grand Ledge at Grand Ledge, under the title of the Grand Cold Storage plant, and did not desire to Ledge Cold Storage Company. The com- purchase eggs for the purpose of storage, plaining witness, George J. Scoefield, of Ea- and said eggs were not to be stored in the ton Rapids, having seen Mr. Andre's adver East by said Wm. Andre, and the said Wm. tisement for the purchase of eggs, went to Andre was not springing the price in order Grand Ledge on the 28th of April, 1906, and to secure early eggs for the purpose of storproposed to sell eggs to Andre. In the course | age, and the said Wm. Andre was not worth

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