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130 Mich. 356, 90 N. W. 32, 97 Am. St. Rep. 479. It is contended that the instrument in question was a mere unilateral agreement; but we think that, when accepted and possession taken under it, it was a good and valid lease, although not signed by the lessees. Jones, Ld. & Ten. §§ 75, 77-79. Inasmuch as this was a valid lease for life to Mr. and Mrs. Osborne, she had a freehold estate. The case of Brouwer is different. The claim that he is a freeholder within the statute is that he had, in equity, a right to the premises in fee. We are of the opinion that this is true, under the proof upon the authority of Maas v. Anchor Fire Ins. Co., 148 Mich. 434. 111 N. W. 1044, and Starkweather v. Chatfield, 149 Mich. 443, 112 N. W. 1071.

Ownership.

The remaining question relates to the title of Mrs. Osborne. Counsel for the complainant, asserting that, although she may be called a freeholder, she was not an owner of premises liable to assessment for benefits. Inasmuch as we have reached the conclusion that Brouwer was the equitable owner in fee, it becomes unnecessary to consider Mrs. Osborne's ownership; there being 5 owners of land subject to assessment exclusive of her.

It is unnecessary to discuss the question of waiver, but our disposition of the meritorious question regarding Brouwer's title is not intended to imply that it was seasonably raised.

The judgment is affirmed.

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OSTRANDER, J. (dissenting). I think it doubtful if Mrs. Ann V. Osborne is shown to be a freeholder. This for the reason that it is entirely uncertain whether she has ever assumed the obligations of a life tenant with respect to the land. Rent is reserved in the lease, and is then receipted for. There is no express obligation to pay taxes. The evidence is that she holds a certain instrument, sufficiently described in the opinion of Mr. Justice HOOKER, and is in possession of the land. Admitting that she is a freeholder, it seems to me to be clear that she is not an owner of the land. We may assume that the Legislature might employ the word "owner" in such a connection, and for such a purpose, that it would mean something besides owner of the fee, or of the legal or equitable title. But it has not done so in the statute under consideration. On the contrary, the words "freeholders" and "owners" are both employed in the statute, and in such connection that in my opinion we are obliged to give them different meanings. The term "freehold estate" is legally definitive of both an estate for life and of an estate of inheritance. The

estate of a vendee in a land contract, in possession, is an estate of inheritance. Starkweather v. Chatfield, 149 Mich. 443, 112 N. W. 1071. So husband and wife owning land by entireties have each of them an estate for life. But one of them is not an owner, within the meaning of a statute requiring a petition for a public improvement to be signed by owners of property. Auditor General v. Fisher, 84 Mich. 128, 47 N. W. 574. An application for the laying out of a drain is jurisdictionally sufficient, not when it is signed by 10 freeholders, 5 of whom shall have estates in land which is liable to assessment for benefits, but there must be 5 signers who are owners of such land. It is the boundary lines of each owner's land which the survey is required to show. The names of the owners of every tract to be traversed by the drain must appear in the application for the appointment of commissioners, and it is to owners that the citation is issued. It would seem that the owner of the fee, alone, could effectively release the right of way. The term "owners of land" as employed in Comp. Laws, § 4319, means persons with whom the drain commissioner may make final and conclusive arrangements, persons whose land is liable to be affected by levies and by the exercise of the eminent domain. If it were otherwise, the proceeding might be instituted upon the application of persons, none of whom had any estate to be affected thereby. If it were otherwise, the 5 signers, claimed to be owners, might all of them be widows, occupying dower lands. The argument that a life tenant is an owner because impeachable for waste for failure to pay the taxes seems to me to be unsound. The statute does not refer to persons who are liable to an assessment, or who by contract, or by operation of law, are obligated to the landlord or to the remainderman to pay the taxes. It refers to land which is liable to an assessment for benefits, and to the owners of such land. Moreover, I am not now prepared to determine whether, in the absence of a contract, a life tenant is under obligations to pay the extraordinary and sometimes very great expenses, arising from a public improvement like a drain, assessed as for alleged benefits to land. This court has sustained applications for drains by a liberal interpretation of the term "freeholder" where that term is employed in the statute. To hold that the term "owner," used in the statute in the same connection, signifies nothing different in meaning is, in my opinion, to deny to public and to private interests a safeguard which the Legislature intended should exist.

Objections to the appointment of commissioners were that the application was not signed by 10 freeholders, did not have signatures of 5 owners of land liable to assessment, and that Ann V. Osborne was not a freeholder. These objections were all overruled, and an order made appointing commissionThereupon plaintiffs in certiorari moved

ers.

in the probate court for a stay of proceedings and rehearing, setting out that Arend K. Brouwer was not a freeholder. The petition was dismissed, upon the ground of want of jurisdiction to grant a rehearing. In the affidavit for the writ of certiorari it is averred that the application was not signed by 10 freeholders, nor by 5 owners of land liable to an assessment for benefits; that Ann V. Osborne is not an owner, and that Arend K. Brouwer is not an owner nor a freeholder; that the application is signed by but 4 owners of land; that the probate court erred in its refusal to entertain the petition for a rehearing. The answer and return denied these allegations, generally. Petition was made for an order for a further return, and one was ordered. In this return it is set out that no objection was raised before the probate court on the hearing for the appointment of commissioners in regard to Arend K. Brouwer, and that, therefore, any and all objections were waived. The circuit court was of opinion that the qualifications of Brouwer were not the subject of proper inquiry, and did not determine whether he was freeholder or owner. His qualifications, so far as disclosed by the record, by the return of the drain commissioner, are: "And this defendant, further answering, says that he always supposed Arend K. Brouwer to be the owner of land in said township of Olive and a freeholder; that his name so appeared in said application for said drain, and that he never heard anything to the contrary until after the judge of probate had made his order appointing the 3 special commissioners, and notices had been served on them, and they were entering upon their duties as such special commissioners, when these plaintiffs appeared before the probate court and asked for a rehearing, setting up, for the first time, that Arend K. Brouwer was not an owner of land in the township of Olive, and that this was the first knowledge that this defendant had in regard to the same. That he made inquiries thereafter, and was informed that the father of Arend K. Brouwer promised to buy him a farm in the township of Olive, and that he did buy him a piece of land and told Arend K. Brouwer that it was his, and that Arend K. Brouwer entered into the possession of the same, and built buildings on the same, has occupied and worked the same for several years, has had the same assessed to him on the tax rolls, has paid the taxes on the same, and in every respect is the owner of the same, except that this defendant has been informed that the record title still stands in the name of the father of said Arend K. Brouwer."

I am of opinion that the question was one to be determined by the court below. The application for the drain is signed by but 10 persons, and it sets out the names of the 5 signers, who are represented to be owners of land liable to an assessment for benefits. Among the names is that of Ann V. Osborne.

The

Brouwer's name is not included. Ann V. Osborne is not an owner of land liabie to assessment. Consequently, without some further showing, the probate court should have declined to appoint special commissioners. The facts in the application had been traversed and shown to be untrue. It is the drain commissioner then who, to save the application, asserts that there are, in fact, 5 signers who are owners. It is. said that Brouwer is an owner. It was not so represented in the application, and if he is not an owner, then the drain commissioner has not shown that the application is sufficient in law. It seems to me that he is not in a position to urge that plaintiffs have waived the question of the qualifications of Brouwer. The inquiry is, and at all times has been, is the application in fact signed by 5 owners of land liable to an assessment for benefits? The inquiry was seasonably made, and the decision is sought to be reviewed in the statute manner. decision was wrong, unless, as asserted by the commissioner, Mr. Brouwer is an owner. In my opinion, he is not an owner. He is not an apparent owner. Reliance is placed upon the decisions of this court in Twiss v. George, 33 Mich. 253; Insurance Co. v. Fogelman, 35 Mich. 481; Dupreau v. Insurance Co., 76 Mich. 615, 43 N. W. 585, 5 L. R. A. 671; Convis v. Insurance Co., 127 Mich. 616, 86 N. W. 994; Maas v. Insurance Co., 148 Mich. 432, 111 N. W. 1044. Certainly these decisions are being carried far afield when used to support the proposition advanced here. Starkweather v. Chatfield, 149 Mich. 443, 112 N. W. 1071, is authority for no such contention. I see no occasion to refine upon the meaning of the term "owner of land," or to suppose the Legislature intended in its use to designate other than the one in whom prima facie is the fee-simple title. In any event, the statute owner must be a freeholder. Brouwer is not a freeholder. His interest in the land is represented and is evidenced by his possession and by a parol promise.

Mr.

The judgment below should be reversed, and the proceedings quashed.

MCALVAY, J., concurred with OSTRANDER, J.

PEOPLE v. ANDRE. (Supreme Court of Michigan. July 1, 1908.) 1. MORTGAGES OPERATION-LEGAL TITLE. A son owning real estate conveyed a half interest therein to his father as security for a debt. Thereafter the son and father conveyed the premises to a third person, and as a part of the transaction a contract for the conveyance of the premises to the son, on his paying a specified sum within a specified time, was executed. The contract stipulated that the son should remain in possession of the premises. The execution of the deed and contract was to enable a creditor of the son to obtain possession of the property, and save the expenses of a foreclosure of mortgages securing the indebtedness. Held, that prior to the specified time

the title and ownership of the property were in the son.

2. SALES REMEDIES OF SELLER-STOPPAGE IN TRANSITU.

A delivery of goods by a seller to a carrier for transportation to the buyer is in law a delivery to the buyer, subject to the right of stoppage in transitu.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 377.]

3. FALSE PRETENSES-EVIDENCE-ADMISSIBILITY.

On a trial for false pretenses, inducing prosecutor to sell on credit goods to accused, it appeared that accused referred prosecutor to a bank for information as to his financial condition. Accused had filed a financial statement with the bank, showing his condition. Prosecu

tor, after delivering goods to a carrier for transportation to accused, and before delivery by the carrier to him, inquired of the bank as to accused's financial condition, and the bank replied by stating that he had on file with the bank a statement showing that he was worth a large sum specified above his liabilities and exemptions. Held, that the statement, together with evidence that it was false, was admissible on the issue of accused's intent in making the representations constituting the false pretenses complained of.

4. SAME.

Whether prosecutor relied on the financial statement and was induced thereby to make shipments of goods to accused was for the jury; for if prosecutor, except for the statement, would have stopped the goods in transitu, the jury could find that prosecutor relied on the statement.

5. CRIMINAL LAW - APPEAL - HARMLESS ERROR-ERRONEOUS ADMISSION OF EVIDENCE.

Where, on a trial for false pretenses, accused admitted his insolvency at the time the representations complained of were made, the error, if any, in admitting in evidence a circular subsequently made by accused's attorney, showing a statement of the condition of accused, was not prejudicial.

6. WITNESSES-ATTORNEY AND CLIENT-PRIV

ILEGED COMMUNICATION.

A statement made by a client while at a conference with his attorney and others is not confidential, and is not privileged, and the attorney may testify thereto.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 761, 764, 765.]

Exceptions from Circuit Court, Eaton County; Clement Smith, Judge.

William Andre was convicted of obtaining money by false pretenses, and he brings exceptions. Reversed, and new trial granted.

Argued before GRANT, C. J., and BLAIR, MOORE, CARPENTER, and MCALVAY, JJ. John E. Bird, Atty. Gen., and Elmer N. Peters, Pros. Atty., for the People. Frank A. Dean, for defendant.

BLAIR, J. Exceptions before sentence to review conviction of obtaining money by false pretenses.

Defendant Andre was engaged in the business of buying and selling eggs, poultry, etc., at Grand Ledge, under the title of the Grand Ledge Cold Storage Company. The complaining witness, George J. Scoefield, of Eaton Rapids, having seen Mr. Andre's advertisement for the purchase of eggs, went to Grand Ledge on the 28th of April, 1906, and proposed to sell eggs to Andre. In the course

of this interview it is alleged that the false representations relied upon were made. The information sets out the false pretenses and the furnishing of the eggs in reliance thereon, as follows: "That he, said William Andre, was the owner of the Grand Ledge Cold Storage plant, located, at Grand Ledge, Mich., and that he, the said William Andre, desired to purchase eggs for the purpose of storage, which said eggs were to be stored in the East by said William Andre; that he desired to secure as many eggs as possible, and was therefore willing to spring the price in order to secure early eggs for said purpose of storage; that the storage at Grand Ledge was to be used by him, the said William Andre, later for the purpose of storing butter; that he, the said William Andre, on the date aforesaid, also gave to said George J. Scoefield the name of the Grand Ledge State Bank as a party to whom he could refer to make inquiry as to said William Andre's financial condition and responsibility; that thereafter, and on, to wit, the 7th day of May, A. D. 1906, the said George J. Scoefield inquired of the said Grand Ledge State Bank as to the financial standing and responsibility and honesty of the said William Andre, and was then and there informed by the cashier of said Grand Ledge State Bank that it, the Grand Ledge State Bank, had on file a state ment made by the said Wm. Andre, which showed that the said William Andre was worth the sum of $18,000 over and above all debts, liabilities and exemptions, and, believing the false pretenses and representations so made as aforesaid by the said Wm. Andre, he, the said George J. Scoefield, was then and there deceived thereby, and was then and there induced by means of said false pretenses and representations so made as aforesaid to deliver, and did thereafter, and on, to wit, the 11th day of May, A. D. 1906, deliver to said Wm. Andre, 18 cases of eggs of the value of $111, and did on the 12th day of May, A. D. 1906, deliver to said Wm. Andre 150 cases of eggs of the value of $700, all of the value of $811, of the property of him, the said Geo. J. Scoefield; that the said Wm. Andre did then and there designedly, and by means of said false pretenses and representations made as aforesaid, unlawfully and fraudulently obtain from the said George J. Scoefield the said 168 cases of eggs, of the goods and property of the said George J. Scoefield, with intent then and there to cheat and defraud him, the said Geo. Scoefield, of the same, whereas, in truth and in fact, the said William Andre was not on said 28th day of April, A. D. 1906, the owner of the said Grand Ledge Cold Storage plant, and did not desire to purchase eggs for the purpose of storage, and said eggs were not to be stored in the East by said Wm. Andre, and the said Wm. Andre was not springing the price in order to secure early eggs for the purpose of storage, and the said Wm. Andre was not worth

the sum of $18,000 over and above all debts, liabilities, and exemptions, all of which pretenses and representations so made by the same Wm. Andre as aforesaid were false in fact, and were, at the time and place aforesaid, well known by the said Wm. Andre to be false and fraudulent." On the 12th day of May, 1906, Mr. Scoefield shipped to Andre from Eaton Rapids 150 cases of eggs at a value of between $800 or $900, for which he received checks on the 16th or 17th of May, which were protested for nonpayment. On the 14th of May, Mr. Scoefield, having become suspicious, called up the Michigan Tradesman at Grand Rapids, who informed him: "They were not thoroughly convinced about his being all right, and that he had no authority to use them as reference. I then called up the cashier of the Grand Ledge State Bank, thinking that he would know more about it than anybody else; he being nearby. He told me that Andre had a statement on file which he had every reason to believe was true to the effect that he, Andre, was worth $18,000 over and above everything, and that his reputation for honesty and so forth was good. My intention was, if I received an unfavorable report, to stop the eggs en route, or to have them replevied if he had them in his possession. I never received my pay for those eggs shipped on those two days. I was deceived by those representations that Mr. Andre had made to me as to his ownership of the property and purpose in buying them and paying that price as I have testified; and I was deceived by the report made to me by the cashier of the Grand Ledge State Bank." The car of 150 crates of eggs shipped by Scoefield to Andre was consigned to the Grand Ledge Cold Storage Company, which, according to Andre's testimony, was composed of himself, and arrived at Grand Ledge on May 15th at 10 o'clock p. m. The court, after reading the information to the jury, instructed them that they could not consider the statement of the respondent filed with the bank and the representations made by the bank to the complainant Scoefield as causes which induced Scoefield to deliver his eggs to the respondent "for the reason that It is undisputed that the eggs were delivered to respondent before complainant Scoefield had any knowledge of the said statement in the bank. In other words, such bank statement cannot be considered as false representations on the part of the respondent by which Scoefield was induced to part with his property. You should, however, gentlemen, consider that proof with the other proof in the case on the question of his intent; that is, you should consider it with all the other proof in the case to determine whether the statements made by respondent as to his ownership of the cold storage plant at Grand Ledge and his desire to purchase eggs for the purpose of storage in the East and statements connected therewith. Should you

find from the proof he made such statements as to the ownership and the other statements connected therewith, you should consider them to determine whether they were designedly false and made to induce Scoefield to part with his property and were successful." The only false representations submitted to the jury, as appears from the charge of the court and as stated by the prosecuting attorney, were (1) that Andre was the owner of the cold storage plant; (2) that he was springing the price of eggs for the purpose of securing early eggs to be stored in the East, and that he was storing them in the East. Numerous assignments of error are presented, several of which are abandoned by counsel for respondent, and we shall only consider those which we deem important for the purpose of disposing of the case.

1. It is argued that the representation by respondent that he owned the property on the 28th day of April, 1906, was not false. and that the court erred in submitting that question to the jury as an open question. It appears from the record that in February, 1906, the title to the real estate in question stood in the name of respondent Andre and his father, Herman Andre. Respondent testified, and his testimony was the only testimony upon the subject in the record, that prior to the deed to Mrs. Berry hereinafter referred to, he deeded to his father, Herman Andre, a half interest, because "he said I ought to be protected, and I said, 'I will deed you a half interest in this property,' which was some time in January, 1905, 'to secure you for what I owe you.' He said, 'All right,' and I deeded him a half interest in the property." Mr. Briggs, one of the three owners of the Loan & Deposit Bank of Grand Ledge, a private bank, testified: "Mr. Andre has been a borrower at my bank, and did business with us 8 or 10 years, stopping on the 1st of February, 1906. At that time he was indebted to Mr. Berry, the president of the bank, to the amount of about $9,600, which was secured by a real estate mortgage and also a trust deed to Mrs. Berry, wife of the president of the bank, subject to mortgage." Deed from William Andre and wife and Herman Andre and wife to Jennie M. Berry, introduced, marked "Exhibit A" and read in evidence; the description of the property in said deed being the same as the description of the property contained in Exhibit B. "At the same time the deed was executed, a contract was executed to Mr. Andre, which is marked 'Exhibit B,' and reads as follows." The contract was in most respects the usual form of land contract, in which respondent agreed positively to pay "$9,612.96 in the manner following, to wit: On or before October 1, 1906, with lawful interest from the date hereof, at the rate of 6 per cent., payable every 30 days upon so much of the purchase money as remains unpaid." It also contained the follow

ing clause: "It is mutually agreed by and between the parties hereto that in case of the payment of the said sum of nine thousand six hundred twelve and ninty-six one hundredths dollars, or any part thereof by the said second party, that first party will promptly apply any and all payments on said second party's indebtedness to the banking firm of Berry, Briggs and Berry, and it is also understood that said second party has the right to make payments of any amount on this contract." Mr. Briggs further testified: "The purpose of having this contract and deed executed was to get possession of the property, and save the time and expense of a foreclosure of the mortgages." This contract was executed on the 16th day of February, 1906. It further appears from Mr. Briggs' testimony that the bank held a chattel mortgage as additional security.

Mr. Alexander, attorney for the Loan & Deposit Bank, testified: "I commenced proceedings before a circuit court commissioner to oust him from the property after the expiration of the contract, and you, Mr. Zimmer, appeared as attorney for Mr. Andre, and raised the objection that the circuit court commissioner had no jurisdiction, and that proceedings must be had by foreclosure. I took judgment by default and proceeded to oust Mr. Andre, but have since commenced proceedings by foreclosure in chancery to get possession of the property. The title to the property was not in Mr. Andre on the 28th of April last. It was in Jennie M. Berry. It did not pass to her absolutely, but passed to her subject to the condition of the contract October 1, 1906."

We are of the opinion that the respondent's assignment of error is well founded, and the court should have instructed the jury as a matter of law upon this record that the title and ownership of this property was in the respondent. The case falls directly within the case of Clark v. Landon, 90 Mich. 83, 51 N. W. 357, and is even stronger because in the case at bar the contract provided that respondent was to remain in possession of the premises. See, also, Flynn v. Holmes, 145 Mich. 606, 108 N. W. 685, 11 L. R. A. (N. S.) 209. The case is entirely dissimilar from Reed v. Bond, 96 Mich. 134, 55 N. W. 619, Blumberg v. Beekman, 121 Mich. 647, 80 N. W. 710, and like cases. In the case at bar the indebtedness was kept on foot, and was not discharged nor intended to be discharged by the contract. The fact that the title originally stood of record as in respondent and his father, Herman, is of no consequence, if his interest was conveyed to him as a security, as testified to by respondent, and under the facts of this case ceases to be of consequence for the reason that Herman agreed to the transaction and conveyed the property to Mrs. Berry, the wife of the president of the bank, with reference to the contract placing the entire title in the name of respondent.

2. Defendant's counsel contend with refer

ence to the introduction of the financial statement filed by respondent with the bank: "Its introduction in evidence was flagrant error, and laid the foundation for the subsequent testimony of Kilbourne, Briggs, Alexander, and the circular letter of T. Rogers Lyons, attorney for Andre in bankruptcy, hereafter to be noted. It had no relevancy to the issue, but raised a false issue to prejudice the jury, and allowed the prosecution to introduce testimony of the financial status of the bankrupt's estate months after the offense was committed." We do not think the judge erred in his instruction to the jury that this financial statement could be considered by them in determining respondent's intent in making the alleged representations to Scoefield, nor in permitting testimony to show that the financial statement was false. Moreover, we are of the opinion that the prosecution was entitled to go to the jury upon the question whether respondent relied upon this financial statement, and was induced thereby to make the shipments of eggs in question. The mere fact that the information alleged dates earlier than the delivery to the common carrier as the dates upon which plaintiff relied upon the false representations in making shipments is not controlling. While a delivery to the railway company was, in law, a delivery to the respondent, still the vendor retained the right of stoppage in transitu, and if the jury found, as the agent of the Pere Marquette Railroad testified, that "that car arrived at 10 p. m. May 15th," Scoefield could have stopped its delivery at any time, at least prior to that hour. And if the jury found, in accordance with his testimony, that, except for the statement from the bank of the financial standing of respondent as shown by his statement on file obtained in the meantime, Scoefield would have stopped the actual delivery to respondent, then we think they would have been authorized to find that the shipment really was in reliance upon that statement.

3. The court erred in admitting in evidence a circular letter issued to the creditors of Wm. Andre, against whom involuntary bankruptcy proceedings had been instituted by his attorney, Mr. T. Rogers Lyons, for the purpose of informing them that a composition had been offered and furnishing a statement of the affairs and condition of the bankrupt estate. This circular was offered with the following statement by the prosecuting attorney: "I claim this circular states-showing an indebtedness of $50,000 and assets of $18,000, 25 per cent. of the fifty would be $12,500. It shows they are seeking even now to get a compromise of the creditors by means of the representations they made in this, and there would be a difference between $12,500 and $18,000. The Court: I think that may be admitted." Although it appears that respondent knew of the contents of this circular and distributed several of them, we do not think the circular prepared and signed by the at torney for the purpose of obtaining a composi

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