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original title seek to vacate the tax deeds, the equitable maxim above referred to will be enforced. Croskery v.

Busch, supra.

The title of defendant did not fail as to the tax deed for the taxes of 1897. The sale is treated as valid in the bill of complaint, and the ground assigned for relief against the tax deed is that it was the duty of defendant's grantor to pay the taxes, which the circuit judge properly held to be incorrect.

If the bill of complaint could be construed to attack the validity of the deed, the burden would be upon the complainants to prove the averment of the bill. Where a party seeks to avoid a tax deed by direct proceedings for that purpose, it is for him to substantiate the charge of its invalidity; but where the holder of the tax deed seeks to enforce it, he must prove its validity, and the deed itself will not be prima facie evidence thereof. Taylor v. Deveaux, 100 Mich. 581 (59 N. W. 250); McKinnon v. Meston, 104 Mich. 642 (62 N. W. 1014); Dawson v. Peter, 119 Mich. 274 (77 N. W. 997); Morse v. Auditor General, 143 Mich. 610 (107 N. W. 317).

The decree, as modified by this opinion, is affirmed.

BIRD, C. J., and HOOKER, MCALVAY, and BROOKE, JJ., concurred.

COMMERCIAL NATIONAL BANK v. GAUKLER.

APPEAL AND ERROR-STAY OF PROCEEDINGS-BOND.

On a motion for permission to file an appeal bond in a foreclosure suit in which, after a decree of foreclosure, the defendant appealed without giving the statutory bond, and complainant proceeded to sell the premises and bid them in, and, on a showing that the premises were worth nearly three times the amount of the mortgage lien, and that the defendant had tried to bring her appeal on for hearing at the present term of court, but the cause could not be heard because of the failure of the attorneys for the mortgagee to file their brief, an order was entered permitting the filing of the bond nunc pro tunc and staying the proceedings under the authority of Act No. 299, Pub. Acts 1909, and Coeling v. Barnard, 159 Mich. 634 (124 N. W. 533).

Foreclosure proceedings by the Commercial National Bank against Josephine Gaukler. From a decree for complainant, defendant appeals. On motion of appellant for leave to file an appeal bond as of the date of appeal and for a stay of proceedings. Submitted November 18, 1910. (Calendar No. 24,010.) Granted December 30, 1910.

George W. Radford, for the motion.

Angell, Boynton, McMillan & Bodman, contra.

BROOKE, J. This case is pending in this court on appeal from a decree of foreclosure. That decree was entered in the Wayne circuit court December 11, 1909. Defendant perfected her appeal and gave notice thereof March 31, 1910, but gave no bond to supersede the decree. After the time allowed for payment by the terms of the decree had expired, the mortgaged premises were sold on July 15, 1910, and bid in by complainant. On August 3, 1910, defendant filed exceptions to the report of sale in the circuit court, which exceptions are still undisposed of.

Appellant now moves this court for leave to file a bond nunc pro tunc as of January 3, 1910. Many reasons are urged by appellant why this relief should be granted. She shows by affidavit that the mortgaged premises are worth about three times the amount of the incumbrance, and that for this reason she did not believe complainant would proceed to sale pending the appeal. She also shows that she desires to redeem from the mortgage, by the payment of such sum as this court may hold to be legal, just, and equitable. She further avers that her appeal was noticed for hearing at the October term, 1910, of this court, and that it could not be heard at that term by reason of the failure of complainant's solicitors to file their brief in due season.

The statute (section 4, Act No. 299, Public Acts 1909) provides:

"No appeal shall operate to stay proceedings in said cause unless the party taking such appeal shall, within the time allowed for perfecting such appeal, file with the register of said court, a bond to the appellee or appellees, with sufficient surety or sureties to be approved by the circuit judge or a circuit court commissioner of said county, or a justice of the Supreme Court, and with such penalty as such judge or commissioner shall approve, conditioned for the performance or satisfaction of the decree or final order of the Supreme Court in the cause, and payment of all costs of the appellee, or appellees in the matter of the appeal. *Provided, further, that the Supreme Court or any justice thereof may, on special motion and proper showing, after such appeal has been perfected, order an additional bond and fix the penalty thereof and approve the sureties thereto."

* *

This proviso, under the authority of Coeling v. Barnard, 159 Mich. 634 (124 N. W. 533), is broad enough to warrant the granting of the relief asked, if, in the opinion of the court, a proper showing were made. While there may be doubt as to the sufficiency of the showing, we are of opinion that the relief should be granted, if it can be done without injury to the rights of the appellee.

On behalf of appellee it is shown that the value of the

property covered by the mortgage is barely equal to the amount of the lien, and that to defer appellee's right of possession by permitting the appellant to file a nominal bond would, in all probability, result in loss to the appellee. Appellant will be permitted to file a bond in this court in the penal sum of $5,000, with two sureties to be approved by the clerk of this court, conditioned for the performance or satisfaction of the decree or final order of this court in the cause, and the payment of all costs of the appellee. Upon the filing and approval of said bond, an order will be entered in this court staying all proceedings in the cause until final determination thereof.

BIRD, C. J., and OSTRANDER, BLAIR, and STONE, JJ., concurred.

BARNES v. TIBBITTS.

1. HUSBAND AND WIFE-ALIENATION OF AFFECTIONS-EVIDENCEADULTERY.

In an action for the alienation of the affections of plaintiff's wife, testimony of the husband relating to the presence of defendant at his home late at night with the wife, and their conversation together, and the testimony of other witnesses as to similar acts, was erroneously excluded, since adultery would not be necessarily inferable from the facts.

2. SAME PLEADING GENERAL ISSUE.

Evidence was admissible on behalf of defendant to show plaintiff's prior treatment of his wife, and the state of her affections towards the husband, although no special notice was pleaded with the general issue alleging that her affections had been previously withdrawn from her husband.

3. SAME SUBSEQUENT QUARRELS EVIDENCE. And it was error to permit the introduction of evidence, on cross-examination of plaintiff, to show that his wife abandoned him after a quarrel over a request of plaintiff, to their daughter, to quit work and to go to school; as it was not an unreasonable request on plaintiff's part, and not sufficient cause for her leaving, and occurred after the affections of the wife had been alienated.

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It was error to strike out plaintiff's testimony, as a conclusion, that there was a change in the wife's feelings towards him about seven years previously, and she always acted more sociable towards defendant than towards plaintiff.

5. SAME.

Evidence of a quarrel between plaintiff and his wife nearly 30 years before was too remote, in view of the policy of the law to encourage the settlement of marital disputes, and upon the uncontradicted evidence that plaintiff and his wife had adjusted that grievance and lived together.

Error to Lapeer; Smith, J. Submitted November 14, 1910. (Docket No. 15.) Decided December 30, 1910.

Case by John F. Barnes against Chauncey Tibbitts for the alienation of the affections of plaintiff's wife. Judgment for defendant. Plaintiff brings error. Reversed.

William E. Brown, for appellant.

Geer, Williams & Halpin and B. F. Reed, for appellee.

MCALVAY, J. In this suit, brought by plaintiff against defendant for alienation of his wife's affections, by secret and clandestine meetings, by furnishing her with intoxicating beverages, by taking her riding, by meeting her at plaintiff's house and at other places in his absence, and by other acts and devices, covering a period of time between 1901 and 1907, the result of a trial was a verdict and judgment against plaintiff. The case is here for review upon errors assigned to the rulings of the court during the

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