of the incompetent person and his family, and we are of the opinion that the court of chancery, in the exercise of its auxiliary jurisdiction, would have no greater power than the probate court to allow a preference of complainant's debt over those of other creditors.

It is argued by complainant's counsel that the remedy by suit upon the bond would be inadequate, because "the judgment against the guardian would be limited to funds in his hands, and the lack of funds or of adequate funds would be a defense, complete or pro tanto, according to the circumstances. In the present case repeated suits would be necessary." We cannot presume in advance that the guardian will neglect his statutory duty to pay the debts of his ward under the supervision of the probate court, but should rather presume that he will do so, and that, therefore, it will not become necessary to bring suit upon his bond.

The decree is affirmed, with costs.

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

WATROUS v. KENYON.

MORTGAGES-DISCHARGE-ASSIGNMENTS-FRAUD-EVIDENCE. On a bill to set aside the discharge and assignment of certain mortgages on the ground of fraud, evidence examined, and held, not to sustain the allegation of the bill, and to support a finding that complainant had understandingly executed said discharge and assignment, and that the mortgages discharged were duly paid.

Appeal from Eaton; Smith, J. Submitted January 20, 1909. (Docket No. 137.) Decided April 24, 1909.

Bill by Mary Elizabeth Watrous against Levi Kenyon and another to set aside the discharge and assignment of certain mortgages. From a decree dismissing the bill, complainant appeals. Affirmed.

Kirschman & Kline and Huggett & McPeek, for complainant.

Frank A. Dean, for defendants.

R. J. Kelley (Huggett & McPeek and Kirschman & Kline, of counsel), for appellant.

Arthur Kidder (Frank A. Dean and Garry C. Fox, of counsel), for defendants.

BLAIR, C. J. The bill of complaint in this suit was filed to set aside as fraudulent two discharges and one assignment of certain mortgages, and for an accounting and foreclosure as to two of the mortgages. Prior to the 14th of September, 1904, the complainant was the owner of three mortgages: One executed by the defendants for $500, on March 12, 1901, due March 12, 1906; one executed by defendants on September 3, 1901, for $1,250, payable September 3, 1908; one executed by Joseph W.

Yourex April 10, 1901, for $900, payable April 10, 1906. The mortgage for $500 covered the north 25 acres of the west fractional quarter of the northwest quarter of section 6, in Bellevue township, Eaton county, and the money was borrowed by Kenyon to pay off a prior mortgage. The $1,250 mortgage covered the whole of said fractional quarter of the northwest quarter, and the money was used in part to purchase an additional 20 acres of land.

The gist of complainant's cause of action is set forth in her bill of complaint, as follows:

"Your oratrix further shows unto the court that she is a widow, and is 65 years old, and has been of feeble health for several years; that on or prior to the 14th day of September, A. D. 1904, one Joseph W. Yourex, of Maple Grove, Barry County, Mich., was indebted to your oratrix in about the sum of $948; that such indebtedness was secured by a mortgage on land in Barry county; that your oratrix placed said claim in the hands of said defendant Levi Kenyon for collection, and that on the day last aforesaid said Kenyon represented to your oratrix that it was necessary for him to have a power or authority from your oratrix to collect said claim; that relying upon such statement, and in compliance with such request, your oratrix went with said Kenyon to the office of Horace H. Bidwell, a notary public in the city of Battle Creek, and there signed two or three papers which said Kenyon had caused to be prepared, and represented to your oratrix that they were powers of attorney or authority for him to collect the said Yourex claim; that your oratrix, having left her spectacles at home, could not and did not read said papers, but signed and acknowledged the same, relying upon the representations and statements of said Kenyon.

66 Your oratrix further avers that from the said 14th day of September, A. D. 1904, until on or about the 15th day of December, A. D. 1906, she had no intimation or knowledge that the papers so signed by her at said Bidwell's office were anything different from that which said Kenyon represented to her before and at the time of signing; that on or about the 15th day of December, A. D. 1906, your oratrix caused an examination of the records of mortgages to be made in the register of deed's office for the county of Eaton, and discovered for the first time that

the papers so signed by her on the 14th day of September, A. D. 1904, were discharges of the mortgage herein before set forth, and another mortgage hereinafter mentioned which your oratrix owned and held against the defendants herein.

"Your oratrix further avers that such discharges of mortgages were caused to be recorded by said Kenyon in the office of the register of deeds for said county of Eaton on the 15th day of May, A. D. 1905, in liber 91 of mortgages, on pages 363 and 364, and from such record the same appears to have been signed and executed by your oratrix.

"Your oratrix further states, and charges the fact to be, that said discharges of mortgages, if the same were ever signed and executed by your oratrix, were procured by said Kenyon by false and fraudulent representations, and were made without consideration or payment of any kind, and were procured without the knowledge of your oratrix as to their real character."

The defendants by their answer denied all of complainant's charges of fraud, and averred that the papers were executed understandingly by complainant, and—

"That after the execution and acknowledgment by the said complainant of the said assignment of the Yourex mortgage and the said two discharges of mortgages thereafter on the said 14th day of September, A. D. 1904, at the home of said complainant in the city of Battle Creek, Mich., in consideration of the sum of $2,700 then and there paid to the said complainant by the said Levi Kenyon, the said complainant delivered unto this defendant the Yourex mortgage and note and said assignment of the same, together with the two discharges of mortgages so executed and acknowledged by her as aforesaid, but then and there intending to cheat and defraud these defendants, and, well knowing that this defendant could not read, fraudulently retained in her possession the original mortgages and notes so given by these defendants to said complainant, and so fully paid, discharged, and satisfied."

The case was heard in open court and the bill dismissed. The circuit judge in the course of his opinion says:

"The gist of the matter is as to whether Levi Kenyon paid complainant on that day $2,700 in payment of the

discharged mortgages and the Yourex mortgage assigned to said Kenyon. He says he did. She says he did not. To find either way will lead to some unnatural conclusions, or in other words to find either way will establish as a fact or facts in the case some unnatural business procedure. A careful consideration of the entire case and the proofs offered and received leads me to the conclusion that the contention of the complainant is not the truth in the case, and I do not think she has established the claim of her bill."

The complainant's version of the transactions of September 14, 1904, is that on that day Kenyon came to her home in Battle Creek and paid her $15, which she indorsed on the $1,250 mortgage in the presence of a Mrs. Stevens, who brought her pen and ink for that purpose. She swore that that was all the money paid her on that day; that she received no consideration for the execution of the papers; that Kenyon said he would need a power of attorney in order that he might collect the Yourex mortgage for her.

"I didn't hesitate. I was so anxious to have the money. I wanted to pay all I owed on my place."

She and Kenyon went down town together. She directed Kenyon to Mr. Bidwell's office, and waited nearly an hour for him at a bank. They then went together to Bidwell's office.

66

"Q. When you went up there, the papers were all ready?

"A. They were, and I walked right in and signed

them.

* * *

"Q. Didn't you think it was rather peculiar that it was necessary for you to sign your name several times in order to make a power of attorney?

"A. I didn't realize that I signed it but once; that is true.

"Q. Were you a little off mentally that day?

"A. I was very, very poorly. I was sick. I wasn't fit to have went down there."

Mary E. Stevens testified: That she went to complainant's house to reside the last part of August, 1904, and