"If Harvey had the right to plat the property and sell what he owned, as it seems to me he had, this operated to seggregate the property from the mass, without any act on the part of Reynolds." Decision may be safely rested here. There are, however, other considerations which compel me to reach the conclusion that complainants are not entitled to more than the deeds of Harvey gave them. No obligation rests upon one tenant in common more than upon another to bring about a partition of the common estate. Ratification, in fact, by Reynolds, or by any one representing his interest, of a conveyance by Harvey of a larger estate in the minerals than he owned is not made out. As has been stated, complainants as well as defendants are chargeable with knowledge of the actual course and sequence of events affecting the property. The proposition that the vendees of Harvey may sit by for 30 years before discovering that they have any interest in the mineral estate, and for years thereafter before attempting to enforce such rights as they now allege in the common estate, is not one which appeals to a court of equity. Indeed, it appearing that but $100 was paid for each of the parcels of land in dispute, and that it was supposed by no one that there was mineral in the land conveyed, equity should, after this lapse of time, leave the grantees of Harvey to such remedies as the law affords them. The decree should be affirmed, with costs. BLAIR, J., concurred with OSTRANDER, J. BROWN & BROWN COAL CO. v. ANTEZAK. JUSTICE'S COURT-BANKRUPTCY-DISCHARGE OF APPEAL Bond. A discharge in bankruptcy of the principal, who has executed an appeal bond in attachment proceedings commenced in justice's court, and who files a petition in bankruptcy, after taking his appeal from the judgment of the inferior court, does not discharge the surety on the bond, where the bond provides that the obligation shall be void if the appellant shall prosecute his appeal with all due diligence, etc., and pay the judgment and costs which may be rendered against him, etc. Error to Wayne; Murphy, J. Submitted October 19, 1910. (Docket No. 85.) Decided December 7, 1910. Rehearing denied March 20, 1911. Assumpsit in justice's court by the Brown & Brown Coal Company, a corporation, against Stanislaus Antezak. From a judgment for plaintiff, defendant appealed to the circuit court, where plaintiff asked for judgment against the surety upon defendant's appeal bond; defendant's liability having been discharged by an adjudication of bankruptcy. A judgment for defendant surety is reviewed by plaintiff on writ of error. Reversed. E. T. Berger, for appellant. Frank W. Atkinson, for appellee. This action was commenced by attachment in the justice's court of Detroit, December 30, 1907. On January 2, 1908, the attached property was released upon the giving of the statutory bond. On February 18, 1908, judgment was rendered in favor of the plaintiff for $405.94 and costs. On March 2, 1908, an appeal was taken to the circuit court for the county of Wayne. In perfecting the appeal the usual statutory bond was given; one John Knuth becoming surety thereon. While said appeal was pending, and 13 months after it was taken, the defendant, on April 7, 1909, filed a voluntary petition in bankruptcy in the United States district court. On July 16, 1909, the appeal not having been prosecuted or determined, plaintiff made a motion to dismiss. On July 26, 1909, defendant secured an order staying proceedings in the Wayne circuit court until the final determination of the bankruptcy proceedings in the United States district court. In the bankruptcy proceeding the judgment here in question was listed as a liability of the bankrupt, and a final discharge was by him obtained on September 21, 1909. On October 4, 1909, defendant filed an amended plea, giving notice of his discharge, and on December 10, 1909, the case came on for trial in the Wayne circuit court. No defense upon the merits was interposed by defendant, but it was urged in his behalf that his discharge in the bankruptcy proceeding operated, not only to cancel his indebtedness to plaintiff, but likewise released the surety upon the appeal bond. It was conceded upon the trial that, unless the discharge of defendant released the surety, plaintiff was entitled to a judgment for the amount of the judgment in the justice's court, with interest. There being no question of fact involved, by consent of counsel, the case was tried by the court without a jury. A verdict was directed for defendant, upon which judgment was entered. Plaintiff has removed the case to this court by writ of error. BROOKE, J. (after stating the facts). From the foregoing statement of facts, it will be seen that the only question to be determined is whether or not the discharge which defendant obtained in the bankruptcy proceedings operates as a bar to the taking of a judgment against his surety upon the appeal bond. The obligation of the bond is as follows: "Whereas, judgment was rendered on the 26th day of February, A. D. 1908, by Louis Ott, one of the justices of the peace in and for the county of Wayne, in favor of the above-named Brown & Brown Coal Company, as plaintiff, and against the above-bounden Stanislaus Antezak, as defendant, for the sum of 405.94 dollars, damages, and 3.00 dollars, costs of suit, and whereas the above-bounden Stanislaus Antezak, conceiving himself aggrieved by said judgment, has appealed therefrom to the circuit court for the county of Wayne: Now, therefore, the condition of the above obligation is such, that if the above-bounden Stanislaus Antezak shall prosecute his said appeal with all due diligence to a decision in the said circuit court, and if a judgment be rendered against him in the said circuit court, shall pay the amount of such judgment, including all the costs, with interest thereon, and in case the said appeal shall be discontinued or dismissed, if the said Stanislaus Antezak shall pay the amount of said judgment rendered against him in said justice court, including all costs with interest thereon, then this obligation to be void, otherwise in force. STANISLAUS ANTEZAK. [Seal.] "JOHN KNUTH." [Signed] 66 [Seal.] Section 16, National Bankruptcy Law 1898, provides: "The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt, shall not be altered by the discharge of such bankrupt. Act July 1, 1898, chap. 541, 30 U. S. Stat. 550 (U. S. Comp. Stat. 1901, p. 3428). This identical question was considered in the case of Knapp v. Anderson, 15 N. B. R. 316. The language of the bankrupt act of 1867 is, in effect, the same as that of the act of 1898 above quoted. Act March 2, 1867, chap. 176, 33, 14 U. S. Stat. 533. The court, after discussing § the obligation of an indorser, said: "So with the surety. He agrees to pay if the event happens which matures his obligation to pay. He assumes to pay, and incurs the obligation to do so, which may become absolute. The design of an undertaking and the effect of it are proper matters of consideration on the question. The undertaking stays all proceedings, and the effect is to prevent the creditor from enforcing his judgment by execution, and in that mode obtaining his debt out of the property of his debtor. The sureties in the undertaking prevent him from availing himself of this right and opportunity, to which he is entitled by the law of the land and by his superior diligence. This right can be destroyed in all cases if the debtor, by appeal, and by subsequent proceedings in bankruptcy before a judgment of affirmance, can release himself and his sureties as well. It was doubtless to prevent such and kindred results that the law declared the discharge should not release or affect any person liable for the same debt for or with the bankrupt, either as partner, contractor, indorser, surety, or otherwise. It was a personal relief given to the applicant, or forced upon him, and not to those equally bound with him to answer his creditor. A surety is rarely primarily liable. His obligation usually depends upon a contingency, which is either an event to occur, or the failure of the principal to pay or to do the act required." * * In Holyoke v. Adams, 10 N. B. R. 270, it was held that a discharge in bankruptcy did not release the sureties upon a bond given in attachment proceedings, commenced more than four months before the bankruptcy proceedings were launched. The case of In re Albrecht, 17 N. B. R. 287, Fed. Cas. No. 145, arose in Michigan, and the opinion was written by Judge Brown, later Justice of the United States Supreme Court. In that case, the authorities are reviewed, and the conflict between them is noted. The court concludes: "I deem it inconsistent with the general purpose of the act to hold that the lien of a creditor, lawfully acquired by his diligence, shall be lost by the debtor giving a bond to satisfy the judgment, an action entirely beyond the control of the creditor, and one which was designed to secure, not to defeat, the ultimate payment of the debt. *** But under the construction given by the Massachusetts courts, the preference of the attaching creditor is lost, if the debtor is sufficiently responsible to obtain a bond, while it is preserved, if his situation is so desperate as to make the release of the property impossible." In Hill v. Harding, 107 U. S. 631 (2 Sup. Ct. 404), Mr. Justice Gray, speaking for the court, said: 164 MICH.-8. |