STUBMAN v. MODRACK et al. (Supreme Court of Michigan. Dec. 22, 1910.) DEEDS (§ 61*)-DELIVERY-EVIDENCE.

Decedent executed certain deeds in 1902, receiving them from the scrivener with the statement, "When I go dead, then everything is all right.' She kept them in her safe in which her will, executed the next month, was kept and where they were found after her death. Before she died she told one of her sons who found the deeds accidentally to put them back in the safe, that if she should die or something should happen to her the son should take care of them and have them recorded. Held, that such facts were insufficient to show a delivery. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 140, 141; Dec. Dig. § 61.*]

Appeal from Circuit Court, Ottawa County, in Chancery; Philip Padgham, Judge.

Action by Louis Stubman by John Vyn, his next friend, against John Modrack and others, to set aside certain deeds. Decree for defendants, and complainant appeals. Reversed.

Argued before BIRD, C. J., and OSTRANDER, HOOKER, MOORE, and STONE, JJ. Corrie C. Coburn and Smedley, Hall & Freeland, for appellant. Walter I. Lillie and George A. Farr, for appellees.

OSTRANDER, J.

er her death. Before her death she told her son, Louis Fischback, who worked for, or with, her in her saloon, and who with her ran across them one day in looking for some other paper in the safe: "Put them back in there. If I should die or something should happen, why you take care of them and have them recorded." Decedent told others that, in substance, she had disposed of her property. Louis Fischback first took the deeds to the probate judge and later, as has been stated, caused them to be recorded. We have not found a copy of decedent's will in the record. It seems to be agreed that in terms it disposes of all of decedent's property to Louis Fischback and Louis Stubman, in equal shares.

Assuming that Louis Fischback was, as to the deeds not running to himself, the mere agent or trustee of decedent to execute her purpose, it is not clear that his testimony of the directions given him by decedent should be excluded. See Jenkinson v. Brooks, 119 Mich. 108, 111, 77 N. W. 640. We do not decide the question because we are satisfied that his testimony does not alone, or in connection with all other circumstances disclosed, prove a delivery of the deeds by the decedent. Certainly they were not delivered They were never beto Louis Fischback.

We feel obliged to reverse the decree of the circuit court and to enter here a decree for complainant, with costs of both courts.

RESTRICK LUMBER CO. v. WYREM-
BOLSKI et al.

Ulrika Luhm died August 10, 1908, testate, her last will was pro-yond the control of the grantor. It does not bated, and administration of her estate was appear that the grantees, other than Fischentered upon. In March, 1892, she executed back, knew of the existence of the deeds. a deed of real estate. In January, 1902, she executed five deeds of real estate. They are all short-form warranty deeds. After her death and on August 28, 1908, her son, Louis Fischback, caused the deeds to be recorded. Louis Stubman is grantee in two of the deeds, and in the others Louis Fischback, John Modrack, and Mary Modrack, respec- (Supreme Court of Michigan. Dec. 22, 1910.) tively, are the grantees. They are all children or grandchildren of decedent. plainant seeks a decree setting aside three of the deeds-not those running to himself his claim being that decedent never delivered them. Whether they were delivered is the question presented, and, with it, the question whether it was competent for Louis Fischback to testify to decedent's directions concerning the deeds. At the circuit a decree was entered dismissing the bill.

Com

1. MORTGAGES (§ 32*)-DEED ABSOLUTE ON FACE.

Where the owners of lots conveyed them to secure a loan, and the grantee gave back a land contract, showing a balance unpaid, the tors were not divested of the legal title of the transaction was a mortgage, so that the granlots.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.*] 2. MECHANICS' LIENS (§ 57*)-RIGHT TO LIEN. Where defendant had no title to lots when The history of these deeds is as follows: ing thereon, but the lots were conveyed to him he contracted orally for the erection of a buildThey were all of them drawn by the attorney and his wife as tenants by the entirety thereaftfor decedent, who also signed them as a wit-er on April 15th and 29th, and delivery of the ness and executed the notary's certificates. The other witness was the son of the scrive ner, himself a lawyer. All of the deeds dated in 1902 were ordered at one time, four of them being dated January 30th, and one January 31st. When they were finished, decedent said, "When I go dead, then everything is all right," or, "Everything is all fixed." They were kept by decedent in a safe in which her will, executed the next month, was also kept. They were found in the safe aft

lumber for the building was commenced April 15th to 18th, the contractor was not entitled to a lien on the house when erected; Comp. Laws 1897, § 10,712, providing that one furnishing materials for the erection of a new building upon land to which the one contracting for its erection has no legal title shall have a lien upon the building, only applying to give a lien where the owner of the building has no legal title.

[Ed. Note.-For other cases, see Mechanics' Liens, Dec. Dig. § 57.*]

Appeal from Circuit Court, Wayne County, in Chancery; James O. Murfin, Judge.

Suit by the Restrick Lumber Company | by the vendee in a land contract, and he suragainst Frank Wyrembolski and another. renders or forfeits his rights thereunder, the From a decree for defendants, complainant person or persons holding such liens may be appeals. Affirmed. subrogated to the rights of such vendee, as

Argued before HOOKER, MOORE, MCAL his rights existed immediately before such VAY, BROOKE, and BLAIR, JJ.

"Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title, shall have a lien therefor upon such (building) buildings or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnish-ror. Ing services or materials as aforesaid. In Argued before BIRD, C. J., and OSTRANcase the property covered by the lien is held DER, HOOKER, MOORE, and STONE, JJ.

Thomas Hislop, for appellant. Seneca C. | greatly injured in body and mind and sufferWilson, pro se. ed a loss of health?

BIRD, C. J. The defendant was apprehended on a capias to answer to plaintiff in an action on the case for having seduced her under promise of marriage. The case was begun on the 27th day of May, 1909. Defendant pleaded the general issue and gave notice of the statute of limitations. When the case came on for trial, plaintiff's counsel made his opening statement to the jury, in which he stated that the seduction occurred on the 24th day of June, 1905. The defendant's counsel then moved the court for a directed verdict for the reasons: (1) Because from the statement of counsel, that the seduction took place on the 27th day of May, 1905, the action is barred by the statute of limitations. (2) Because another suit of like character was begun on the 7th day of March, 1906, and plaintiff was defaulted for failure to file her declaration within the time prescribed by the rules of court and the court afterwards refused to set aside the default. The trial court was of the opinion that both grounds were well taken and accordingly directed a verdict for the defend

ant.

1. It is the claim of defendant that an action for seduction is an action for personal injuries, within the meaning of Act No. 155 of the Laws of 1899, which reads as follows:

"Section 1. That no action shall hereafter be brought in any courts of this state to recover damages for personal injuries, unless the same shall be brought within three years from the occurrence upon which the claim for liability is founded.

"Sec. 2. All acts or parts of acts in anywise contravening any of the provisions of this act are hereby repealed."

Prior to the passage of this act, the statute of limitations applicable to actions of seduction was six years. Section 9728, Comp. Laws 1897. The question, then, is whether an action for seduction is an action for personal injuries. If it is, it follows that the foregoing statute applies and the limitation on such actions is reduced to three years.

In Hutcherson v. Durden, 113 Ga. 987, 991, 39 S. E. 495, 496 (54 L. R. A. 811), the plaintiff brought an action to recover damages for the seduction of his daughter and upon the trial the same question was raised as is raised here. The section of the Code relied upon was as follows: "Actions for injuries done to the person shall be brought within two years after the right of action accrued, except for injuries to reputation which shall be brought within one year." When passing upon the question, the court said: "It is, we think, therefore, evident that the meaning of the expression 'injuries to the person' as understood by the codifiers and within the scheme of classification adopted in the Code, was not confined to mere physical or bodily injuries, but embraces all actionable injuries to the individual himself, as distinguished from injuries to his property. We think, therefore, that section 3900 of the Civil Code of 1895, itself shows that the expression, 'injuries done to the person,' as therein used, includes not only injuries to the physical body, but every other injury for which an action may be brought, done to the individual and not to his property." Other cases holding to the same effect are: Garrison v. Burden, 40 Ala. 513; Hoover v. Palmer, 80 N. C. 313.

As all the injuries complained of in this case, and which are usually complained of in cases of like kind, are personal to the plaintiff, we think it should be held that an action for seduction is an action for personal injuries, within the meaning of Act No. 155 of the Laws of 1899. It would follow that the plaintiff's case is barred by the statute, and that the trial court was right in so holding.

2. We refrain from discussing the second ground of dismissal for want of a sufficient record of the proceedings of the former suit.

Error is assigned on the action of the trial court in directing a verdict for the defendant upon the opening statement of plaintiff's counsel. The record does not show that plaintiff entered any protest to the action of the court at the time and he makes no claim This court has said that, "a personal wrong in this court that he did not state the case or injury is an invasion of a personal right; to the jury as strong as the witnesses would it pertains to the person, the individual" have stated it, if they had been permitted to (People v. Quanstrom, 93 Mich. 254, 53 N. W. testify. If the opening statement disclosed 165, 17 L. R. A. 723), as contradistinguished plaintiff's case as fully as it would have been from injuries to property (Norris v. Shep-disclosed had the witnesses testified, the case ard, 100 Mich. 256, 58 N. W. 1006). The injury complained of by plaintiff in her declaration is one against her person, and the damages which she claims are traceable directly to that injury. She alleges that by reason of the injury she has given birth to a child and has suffered great physical and mental pain and loss of health. How could her injuries have been more of a personal nature if she had been run down by a street

ought not to be reversed for that reason. In view of the fact that plaintiff fails to point out how his client's rights were prejudiced in any way by such action of the court, we think the assignment is not well taken. Spicer v. Bonker, 45 Mich. 630, 8 N. W. 518. The case is affirmed, with costs. The other Justices concurred.

HOOKER, J. I concur in the opinion of

"(1) In December, 1907, defendant rented from plaintiff certain premises in Grand Rapids for residence purposes at eighteen dollars per month, payable monthly in advance, for no specified term. Defendant moved into the premises December 15, 1907, and vacated June 15, 1908.

"(2) About March, 1908, defendant com

"(3) There was no agreement between the parties that the landlord should make repairs. "(4) Defendant paid all the rent due each month, up to June 1, 1908, but paid no rent after that time.

therein and for the following additional rea- | claimed was due him. An appeal was taken son: Act No. 239, Pub. Acts 1909, was intro- to the circuit court, where it was tried beduced, discussed, and passed by both houses fore the judge, who made findings of fact under the following title, viz.: "A bill to and of law. amend section 2 of chapter 140 of the Revised Statutes of 1846," entitled, "Of the limitations of personal actions," the same being compiler's section 9729 of the Compiled Laws of 1897 as amended by Act No. 168 of the Public Acts of 1905." Both section 9729 and Act No. 168, covered actions of assault and battery, false imprisonment, slander, and libel. The latter added actions for malprac-plained that the property was not worth the tice. It would seem to follow that a more rent agreed upon, and it was then reduced to comprehensive section was intended, rather fifteen dollars per month. than one limited to the class of actions popularly referred to by the term "personal injury cases." The title forbids the assumption that the last act was passed merely to cover such cases, and that in passing it there was no intention to affect the classes of cases covered by section 9729, and Act No. 168. Evidently the intention was to include all in the new act, and the term "personal injuries" should be given the broad construction contended for in defendant's brief. See Williams v. Williams, 20 Colo. 51, 37 Pac. 614; Hutcherson v. Durden, 113 Ga. 987, 39 S. E. 495, 54 L. R. A. 811; Houston Print. Co. v. Dement, 18 Tex. Civ. App. 30, 44 S. W. 558; Martin v. Western Union, 6 Tex. Civ. App. 619, 26 S. W. 136; McMurtry v. Ky. Ry., 84 Ky. 462, 1 S. W. 815; 3 Blackstone, Com. 118. These cases are all cited in plaintiff's brief, but we include them here for convenient reference.

The judgment should be affirmed.

"(5) June 10, 1908, plaintiff received the following letter from defendant: 'Enclosed please find check for $7.50, for rent from June 1st, to 15th. I'll vacate your house on the 15th inst.' On June 1st, $15 was due in advance for the month of June. Plaintiff returned the check stating that it was not enough. Defendant vacated the premises June 15th, and again sent the same check and also the keys. Plaintiff kept the keys, but again returned the check.

"(6) Plaintiff was not able to rent the house and it stood vacant until September 1908, when it was rented to and occupied by the present tenant in the same condition in which defendant left it.

"(7) When defendant moved in, the premises were in a tenantable condition and rea

MOORE and STONE, JJ., concurred with sonably fit for the purposes for which they HOOKER, J.

HINDMAN v. FRIEDRICH.

(Supreme Court of Michigan. Dec. 22, 1910.) APPEAL AND ERROR (§ 1011*)-FINDINGS CONCLUSIVENESS.

Findings of the trial court on conflicting evidence and supported by evidence are conclusive on appeal, it being only where there is a total want of evidence, or where the findings are contrary to the undisputed evidence, that the appellate court will interfere.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]

Error to Circuit Court, Kent County; John S. McDonald, Judge.

Action by Ambrose C. Hindman against Otto Friedrich. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before BIRD, C. J., and OSTRANDER, HOOKER, MOORE, and STONE, JJ. Adsit & Danhof, for appellant. A. C. Hindman, in pro. per.

MOORE, J. This case was commenced in justice court to recover rent which plaintiff

were rented.

"(8) About the middle of January, defendant noticed steam and water coming from the ground in the back yard, from the sewer. This he reported to plaintiff, who promised to have the cesspool cleaned out. No solid substances came to the surface, just liquids and some toilet paper, and both parties then supposed that this trouble was caused by the backing up from the cesspool into the sewer and coming up in this way, through the hand-hole vent or running trap. This steam and water seemed to come up at about the location of this trap in the yard.

"(9) This caused some odor that came into the house when the dining room windows were open and the wind happened to be from that direction. There was no difficulty in using the water and sewerage system in the house, and no odors came back into the house through the plumbing or sewerage system.

"(10) About May 20th, defendant's wife I called the health department, and had an inspector look into the matter, and this inspector served notice on plaintiff to have foul cesspool cleaned. Plaintiff immediately

upon receiving such notice gave an order to | $20 damages for one and a third month, at the inspector for the health department to clean the cesspool. Such work is a part of the health department's duties. Plaintiff reported to defendant that he had given the order, and also told defendant to look after it, and see that the said health department did the work promptly. The city did not clean the cesspool until after the defendant moved out and the present tenant moved in, because the city was then having litigation, and injunction proceedings were then pending about the place for the disposal of night soil and the city was not doing any vault or cesspool cleaning for a time. This work was not permitted to be done by any other than the licensed scavengers, through orders given directly to the board of health for the work.

"(11) This sewer trouble continued the same after the cesspool was cleaned and up to June, 1909, a year after defendant moved out, when the present tenant got a plumber to dig up the sewer in the yard at the place of the show of the coming up of the water and at this vent or house trap, and he then found that the difficulty was a broken joint of sewer tile next to the trap, and a partial stoppage from sticks and stones, etc., in the trap. This plumber cleaned out the trap and replaced the broken tile which fully repaired the trouble.

$15 per month, this is one-third of the month, up to the receipt of the letter notifying him that the premises would be vacated on June 15th, and for thirty days after said notice." The errors complained of are stated by counsel as follows: "That the testimony in the case does not support the findings of the court in the following particulars: In finding that 'on June 1st $15 was due in advance for month of June'; that 'when defendant moved in the premises were in a tenantable condition and reasonably fit for the purposes for which they were rented'; that 'no solid substances came to the surface, just liquids and some toilet paper, and both parties then supposed that this trouble was caused by the backing up from the cesspool into the sewer and coming up in this way, through the handhole vent, or running trap'; that 'at the time defendant vacated the premises, neither party was aware that the trouble originated in this way,' meaning from a broken sewer tile and a partially clogged trap; that 'the house did not become untenantable or unfit for habitation because of this trouble or defect'; that 'the house was tenantable and fit for habitation during all of the time occupied by defendant, and was so at the time he vacated'; that 'the defects in the sewer did not exist at the time defendant moved into the premises'; that 'defendant did not vacate said premises because they were untenant

"(12) At the various times this matter was talked about between the parties before de-able, but primarily because plaintiff refused fendant vacated, neither party knew that the trouble originated from a broken sewer tile and a partially clogged trap. At the time defendant vacated the premises, neither party was aware that the trouble originated in this way.

"(13) The house did not become untenantable or unfit for habitation because of this trouble or defect. The house was tenantable and fit for habitation during all of the time occupied by defendant and was so at the time he vacated.

"(14) The defects in the sewer did not exist at the time defendant moved into the premises.

"(15) Defendant did not vacate said premises because they were untenantable, but primarily because plaintiff refused to furnish

screens.

"(16) When this cause came on for trial in justice's court, defendant paid into court as a tender $7.50, but did not pay or tender any amount of costs. Plaintiff had at that time paid the costs in justice court, $2.50. This tender was not sufficient. Even under defendant's admitted liability it should have been $10 and interest on $7.50. It is also not sufficient, because the court finds plaintiff entitled to the full amount claimed, $20 and costs.

"Law:

to furnish screens'; that 'the tender made by defendant of $7.50 into justice court was not sufficient'; that 'plaintiff was under no obligation to make repairs'; that 'plaintiff is entitled to a judgment of $20.'"

The testimony offered upon the part of the plaintiff in most essentials differs widely from that offered on the part of defendant.

In the case of Cragin v. Gardner, 64 Mich. 399, 31 N. W. 206, it was said: "It is well settled that we cannot, in reviewing a casemade, weigh evidence, determine facts, or review the findings of the court below upon questions of fact. Heimbach v. Weinberg, 18 Mich. 48; In re Wisner's Estate, 20 Mich. 128; Schmidt v. Miller, 22 Mich. 278; Walrath v. Campbell, 28 Mich. 123; Earle v. Westchester Fire Ins. Co., 29 Mich. 414; Grand Rapids v. Whittlesey, 32 Mich. 192; Peabody v. McAvoy, 23 Mich. 526; Tuxbury v. French, 39 Mich. 190; Chatterton v. Parrott, 46 Mich. 432 [9 N. W. 482]; Wertin v. Crocker, 47 Mich. 642 [6 N. W. 683]. It is only where there is a total want of evidence, or where the finding is contrary to the undisputed evidence, that we can overturn the facts found by the court. In this case there was testimony to support each fact found by the circuit judge, and the facts so found support the judgment rendered by him."

In Lamoreaux v. Creveling, 103 Mich. 501, "(1) Plaintiff was under no obligations to 61 N. W. 783, Justice Montgomery speaking make repairs. for the court said: "There being testimony