shall not be made on that day or on the day provided in the ordinance or resolution creating the office may be made at any subsequent regular or special meeting of the council.'

"Section 2704 provides:

* * *

"All appointive officers “shall” hold their respective offices until the second Monday of April next after such appointment and until their successors are qualified and enter upon the duties of their offices, unless a different term of office shall be prescribed in this act, or in the ordinance or resolution creating the office. Officers appointed to fill vacancies shall hold their office until the next annual election, and unless their successors are elected or appointed and qualified. All persons elected or appointed to office shall enter upon the duties thereof upon taking the oath of office and filing the requisite security, if any is required of them.'

"Under this statute how could the village council make a valid appointment previous to the second Monday in April, when no vacancy had occurred, and the office to which they undertook to make the appointment was then being held by an officer who was regularly appointed for a regular term? The counsel for plaintiff in the lower court contended that this provision of the statute was merely directory, and not mandatory; that it was a question of time, and not of power; and that the board to whom was delegated the power of appointment, might exercise it before the time fixed in the statute, and, having done so, the act of appointing the plaintiff was a valid act."

We do not consider it necessary to determine the validity of plaintiff's reappointment, since under the express provision of section 2704 he would continue to hold the office de jure until his successor qualified and entered upon the duties of the office. People v. Lord, 9 Mich. 227; Lawrence v. Hanley, 84 Mich. 399 (47 N. W. 753). The judgment is affirmed.

MOORE, MCALVAY, BROOKE, and STONE, JJ., concurred.

GRAGG v. MAYNARD.

1. QUIETING TITLE - CANCELLATION OF INSTRUMENTS JURISDICTION-ADEQUATE REMEDY AT LAW.

- EQUITY

A bill of complaint averring that defendant obtained, by undue influence and fraud, the execution of a deed to him, by a person towards whom he sustained a confidential relation, praying for cancellation, and asking that the deed be declared a cloud on complainants' title, presents a case for equitable cognizance and is not a bill to quiet title.

2. CANCELLATION OF INSTRUMENTS-FRAUD-SUFFICIENCY OF BILL -DEMURRER.

Averments of a bill of complaint for the cancellation of a deed, that defendant was the confidential agent of the grantor, and employed undue influence and fraud to secure the deed, and that the grantor was feeble in mind and body, and under the influence of the defendant, are sufficient on general demur

rer.

3. DEEDS-WILLS-LIFE ESTATE.

A clause in a warranty deed reserving a life estate to the grantor, the instrument "not to become operative in any way until her death," makes the conveyance testamentary in character.

4. EQUITY-JURISDICTION-DEEDS-CONVEYANCE ON CONDITION. Equity has not jurisdiction to cancel a deed testamentary in nature, executed with due formality to constitute a will, and may only determine its character or strike it from the record as a deed.

5. SAME

DUPLICITY-INCONSISTENT CLAIMS.

A demurrer is not sustainable to a bill in equity for presenting the case in a double or inconsistent manner when it avers that a deed was obtained by fraud and undue influence, and was executed without consideration, and was never delivered during the lifetime of the grantor.

6. SAME-PLEADING-FRAUD.

And whether the defendant obtained the deed by fraud before or after the death of the grantor, the averments of the pleading were sufficient.

Appeal from Van Buren; Des Voignes, J. Submitted January 12, 1911. (Docket No. 75.) Decided February 1, 1911.

Bill by John A. Gragg and other heirs of Lucy M. Bangs, deceased, against Charles S. Maynard and others to annul a deed. From a decree overruling a demurrer to the bill of complaint, defendants appeal. Affirmed.

Osborn & Mills, for appellant.

W. J. Barnard and B. F. Heckert, for appellees.

BLAIR, J. The complainants, heirs at law of Lucy M. Bangs, filed their bill of complaint for the annulment and cancellation of a certain instrument in writing recorded by the defendant Maynard as a deed in the office of the register of deeds after the death of the said Lucy M. Bangs. The bill of complaint contains, among other averments, the following:

"Your petitioners further show unto the court that the said instrument in writing, purporting to convey the said premises as aforesaid, was never delivered to the said Charles S. Maynard during the lifetime of the said Lucy M. Bangs, and that no consideration was paid by the said Charles S. Maynard to the said Lucy M. Bangs, for and in consideration of the said purported conveyance, either in money, property, cr services of any kind, name, or nature.

"Your petitioners further represent unto the court that the said Charles S. Maynard in some way procured the possession of said instrument in writing after the death of the said Lucy M. Bangs, and placed the same of record on the 14th day of January last past, knowing that the same was illegal and void and without consideration, and conveyed to him no interest whatever in the said premises.

* * *

"Your petitioners further show that, for some time previous to the day of making the purported instrument in writing as aforesaid, the said Lucy M. Bangs was feeble in body and mind, and was unable to look after and transact all of her own business, and that the defendant,

Charles S. Maynard, prior to, at the time of, and subsequent to the execution of said instrument in writing, proceeded to manage the affairs, business, and property of the said Lucy M. Bangs, and thereby occupied a fiduciary and confidential relation to her, being in her employ as agent and otherwise, and that by reason of said relations to the said Lucy M. Bangs, was able to and did exercise a marked degree of undue influence over the feeble and weakened mind of the said Lucy M. Bangs, and by means of which procured from her, the said Lucy M. Bangs, the said instrument in writing, by fraud, artifice, deceit, and undue persuasion.

* * *

"Your petitioners further represent that the said Charles S. Maynard has, since the death of the said Lucy M. Bangs, taken possession of said premises, and is now in the control, occupation, and use of the same, and claims to be the owner thereof, to the exclusion of your petitioners, and all others interested in said property as heirs at law or otherwise of said Lucy M. Bangs.

The specific prayers for relief are as follows:

(b) That the record of said purported instrument in writing, mentioned in paragraph five (5) of this bill of complaint, may be declared to be a cloud upon your petitioners' title in and to said premises, and that the same may be declared to be null and void as against the titles of your petitioners, and that said instrument in writing may be decreed to be delivered and canceled.

"(c) That the said Charles S. Maynard, one of the defendants herein, shall be decreed to quitclaim all of his pretended claims and interest in and to said premises, herein before described in paragraph four (4) of this bill of complaint, and that in default thereof that the decree of this honorable court shall stand in lieu thereof.

"(d) And that the said defendant, Charles S. Maynard, shall be decreed to account for the rents and profits of said premises from and after the time he took possession of said premises described in paragraph four (4) of this bill of complaint."

The written instrument in question is made a part of the bill of complaint, and is in form a warranty deed stating the consideration to be "the sum of fifteen hundred dollars, and for care and attention given and to be given

by second party to first party." After the description of the land the following clause is inserted:

"The said party of the first part hereby reserves unto herself the use, income and possession of the abovedescribed premises, for and during the time of her natural life, and this deed is not to become operative in any way until her death."

Defendant Maynard demurred to the bill of complaint upon the following grounds:

"First. Because all and every the matters in said complainants' bill of complaint mentioned and set forth in respect whereof relief is prayed, are matters which may be tried and determined in a suit at law, and with respect to which the complainants are not entitled to any relief in a court of equity.

"Second. Because the complainants have not in and by said bill of complaint set forth or pleaded any such facts or case as do or ought to entitle them to any relief on account of the matters pleaded in and by the ninth paragraph of said bill of complaint or the bill of complaint as a whole.

"Third. Because said bill of complaint does not make out or set forth any case of equitable cognizance."

The demurrer was overruled and defendant Maynard has appealed to this court.

The demurrer was properly overruled. The bill is not a bill to quiet title, but to procure the annulment and cancellation of the alleged deed upon the ground that it was obtained by fraud. The bill is, therefore, sustainable under well-recognized heads of equity jurisdiction. King v. Carpenter, 37 Mich. 363; John Hancock, etc., Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566); Beaton v. Township of Inland, 149 Mich. 558 (113 N. W. 361).

As against a general demurrer, the bill sufficiently charges fraud. Greenley v. Hovey, 115 Mich. 504 (73 N. W. 808); Smith v. Boyd, 127 Mich. 417 (86 N. W.

The brief in support of the demurrer treats the instru