Wagoner, 128 Mich. 635; Smith v. Fuller, 138 Iowa, 91; Coal Run Coal Co. v. Jones, 127 Ill. 379.

4. There was no testimony on which to base the finding that they lived together as husband and wife for "a little over a year." The following constitutes the entire testimony on this subject:

"By Mr. Shine: Q. Where have you lived since the fall of 1895 ?

"A. I lived in the Soo.

"Q. And do you know where Mr. Killackey lived since that time, James Killackey, Sr.?

"A. Where he lived, did you say?

"Q. Where did he live, James Killackey, Sr., since the fall of 1898 ?

"A. I don't know where he lived. He lived all over, I guess, with his folks.

"Q. He didn't live with you, did he?

There being no evidence to the contrary, the presumption is that from their marriage in September, 1897, to the fall of 1898 the parties sustained the usual relations of husband and wife.

5. That there was no sufficient proof that Killackey was seised during marriage of an estate of inheritance in the lands in question. As stated in appellants' brief:

"This question arose in the following manner: In the trial plaintiff offered in evidence a deed from James Killackey, Sr., to Robert Killackey, Sr., conveying the land in question, and the files from the probate court in the estate of James Killackey, Jr., in which the real estate was listed as part of the estate, and an order determining James Killackey, Sr., sole heir at law. But plaintiff offered no proof of record or paper title running back to the government, nor proof that James Killackey ever occupied the premises, or that he acquired it from any person who previously occupied it, or that any of them occupied it under warranty deed or made improvements thereon."

The trial judge correctly held :

"Proof that both parties claim the same source of title

is sufficient evidence of title without tracing it through a chain of conveyances to the government."

See Drake v. Happ, 92 Mich. 580.

6. An antenuptial agreement and settlement barred dower. As stated in appellants' brief:

"This agreement was made shortly before the time of the alleged marriage. By it James Killackey, Sr., made provision for his widow in case he should marry. A charge was made on certain real estate conveyed to Timothy Killackey, of $100 a year. The plaintiff afterwards settled with the heirs of Timothy Killackey for $500. So far as the record shows, Killackey had no other property. There was evidently an understanding that by arranging for this annuity for plaintiff it was intended to be in lieu of any claim on him or his property, if he had any. Even if not assented to by plaintiff, she has elected to take it, and such election bars dower."

The plaintiff testified:

"Why he must have been a man in the neighborhood of 80, I suppose; 70 or 80, I suppose. Just before September, 1897, there was an arrangement between him and me relative to the payment of $100 a year.

"Q. Since Mr. Killackey's death you have been getting that $100 a year, have you?

"A. Yes; I got that.

"Q. And that was made a charge or security in some way on some of the real estate-some farm?

66 A. That was off Tim's farm. He was a son of old man Killackey's. Yes; this same Killackey, Sr., referred to in these pleadings. I made a settlement with the owners of the land in full. I got $500 from them for a release of my claim for life against it. Mr. Killackey was to receive the $100 income off the farm until he died, and I was to get it after.

"Q. Who did get it?

"A. I got $500.

*

*

"Q. But during the lifetime of Mr. Killackey who received the $100 a year off the income of the farm?

"A. I don't know. He told me once he didn't get anything. I never got anything off the income of the farm except the $500. On my separation from Mr. Killackey I was allowed $6 a month. That was all paid me but the last month.

"Q. Did you ever receive from Mr. Killackey either any property, real estate, or money?

"A. No, sir.

"Q. Anything except the $500 in the settlement you made?

"A. That is all on the income of the farm, and this $6 a month on my separation from him. At the time I married Mr. Killackey he said he was possessed of considerable property."

Plaintiff, in consideration of $500, executed a quitclaim deed to the heirs at law of Timothy Killackey, June 23, 1906. The deed contained the following provision:

"This deed is given and the consideration thereof accepted in full satisfaction of any and all claims which said first party may have against the estate of Timothy Killackey, deceased, by way of annuity or otherwise, or against said lands as the widow of the said James Killackey, deceased."

The deed from James to his son Timothy was made before the marriage, and nearly four years before he inherited the property involved in this suit from his son James. Mrs. Killackey was not a party to the warranty deed by which the lands were conveyed by James, Sr., to his son. The plaintiff's dower is not barred by section 8934, 3 Comp. Laws, because that section does not relate to lands conveyed by the husband without the wife's signature, as in this case, during his lifetime. Westbrook v. Vanderburgh, 36 Mich. 30. Her dower is not barred under the provisions of section 8933, because her assent to the pecuniary provision for her benefit was not given, as specifically required by that section.

7. The decree for separate maintenance bars dower in lands thereafter acquired. Such a decree does not bar dower as a general rule. 14 Cyc. p. 934; 9 Am. & Eng. Enc. Law (2d Ed.), p. 852. Under the circumstances of this case, and for the reasons stated by the circuit judge, we concur in his conclusion of law.

8. That the judge had no right to enter judgment for plaintiff for one-third of the rent of the premises from

September 30, 1904. Plaintiff's counsel submit that the provision in the judgment for the recovery of the rent is mere surplusage, and that the whole matter will be open for consideration in the supplemental proceedings, suggesting damages in accordance with the provisions of section 10988 et seq., 3 Comp. Laws. An amendment of the judgment in accordance with this concession will sufficiently protect appellants, if such amendment is deemed

necessary.

There are no other questions which, in our opinion, require consideration, and the judgment is affirmed, with costs against the defendant Robert Killackey.

GRANT, MONTGOMERY, MOORE, and MCALVAY, JJ., concurred.

NICHOL v. WARD.

APPEAL AND ERROR-EXCEPTIONS-NECESSITY.

Where, in a case tried before the court without a jury, no objection was made, nor exception taken, to the admission of testimony, no request for findings of fact and law, nor exception taken to the rendition of judgment, under Circuit Court Rule 26, there is nothing for an appellate court to review.

Error to Ionia; Davis, J. Submitted January 20, 1909. (Docket No. 132.) Decided March 30, 1909.

Assumpsit by John Nichol, receiver of the Citizens' Mutual Fire Insurance Company of Jackson, against Rachel M. Ward for assessments due upon certain poli

cies of insurance. There was judgment for plaintiff, and defendant brings error.

Affirmed.

D. P. Sagendorph, for appellant.

George E. Nichols (John Nichol, of counsel), for appellee.

MOORE, J. The plaintiff sued to recover for two assessments which it was claimed were due from defendant upon two policies of insurance which had been issued in her name. The case was tried before the judge without a jury. He rendered judgment in favor of the plaintiff in the sum of $14.37. The case is brought here by writ of error.

A number of defenses were interposed in the court below, and a good many questions are argued in this court. The disposition of a preliminary question must, however, dispose of the case. No objection was made, and no exception taken, to the admission of testimony. At the conclusion of the testimony a motion was made to dismiss the case. No request was made for special findings of fact and law by the judge. He took the motion under advisement, and later rendered the judgment before stated. No exceptions were taken to the rendition of judgment. No special findings of fact and law have been made. The record does not comply with Circuit Court Rule 26. There is nothing in this court to review. See the many cases cited in the note to the rule.

Judgment is affirmed.

BLAIR, C. J., and GRANT, MONTGOMERY, and McALVAY, JJ., concurred.