indorsed by Sophia Mehling, sole legatee of John V. Mehling. It appears that she is also executrix. The circuit court gave judgment on it.

The only question presented by the argument for plaintiff in error, and therefore the only one we need notice, is that this instrument contains no payee, and is not a negotiable promissory note.

Inasmuch as the declaration contains no special count, the negotiable quality of the paper, if valid, does not seem to us important. If not negotiable the assignee can, under our statute, sue in his own name. If negotiable, it is not claimed that Mrs. Mehling, being both executrix and sole legatee, does not hold the title of the estate.

We think that this note was a valid instrument, and payable to the proper representative of the estate. Such was the manifest intent of the parties, and there is no legal reason that we can discover to the contrary. There is no uncertainty about the intent, and there has been no change in the representative.

The judgment must be affirmed with costs.

The other Justices concurred.

PETER NICKODEMUS V. JACOB NICKODEMUS.

Absolute transfer of property by debtor.

A man made an absolute conveyance of his property to his brother in order to avoid the payment of certain paper upon which, he claimed, his liability had been fraudulently obtained. He was also otherwise indebted. In a suit by creditors to set aside the conveyance as fraudulent as against them, it was proven by the brothers to have been bona fide. The grantor afterwards filed a bill against his brother for an accounting and for leave to redeem, claiming that it had been further agreed between them that the defendant, after paying complainant's debts out of the proceeds and profits of the property, should reconvey. Held, on the evidence, that the bill was rightly dismissed.

Appeal from Saginaw. Submitted January 14. Decided January 26.

45 MICH.-25

BILL for accounting and reconveyance. Dismissal affirmed. Tarsney & Weadock for complainant.

John McArthur, William H. Sweet and George A. Flanders for defendant. Fraudulent conveyances, while void as to creditors, are valid as between the parties: Story's Eq. Jur. §§ 353-5, 371; 4 Bac. Ab. 412; Bolt v. Rogers 3 Paige 157; Nellis v. Clark 20 Wend. 24: 4 Hill. 424; Osborne v. Moss 7 Johns. 161; Noble v. Noble 26 Ark. 317; Jones v. Rahilly 16 Minn. 320; Blount v. Costen 47 Ga. 534; Moseley v. Moseley 15 N. Y. 335; Stephens v. Heirs of Harrow 26 Ia. 458; Stewart v. Ackley 52 Barb. 283; Sweet v. Tinslar id. 271; Dunbar v. McFall 9 Humph. 505; Tremper v. Barton 18 Ohio 418; Malin v. Garsney 16 Johns. 189; St. John v. Benedict 6 Johns. Ch. 111; Gage v. Gage 36 Mich. 229; but see Clemens v. Clemens 28 Wis. 637; courts will not allow debtors to transfer property to pay just debts and avoid those that are unjust: Brady v. Briscoe 2 J. J. Marsh. 213; Stewart v. Iglehart 7 G. & J. 132; Ward v. Trotter 3 T. B. Mon. 2; where it is claimed. that one who holds title under an absolute conveyance holds it in trust, the trust must be satisfactorily established: Shepard v. Pratt 32 Ia. 296; parol evidence to supplement the written evidence is inadmissible: Cook v. Barr 44 N. Y. 156; where property is conveyed by an ordinary deed, without any condition or declaration of trust, and which declares the uses to be for the grantee's benefit, no resulting trust can arise in the grantor's favor under any parol agreement contravening the deed: Brown v. Bronson 35 Mich. 415.

MARSTON, C. J. The complainant and defendant are brothers, and, prior to 1869, they owned certain real estate in common and were engaged in keeping a saloon in East Saginaw. The complainant had become indebted as an indorser, and was also liable on certain paper which he claims was fraudulently obtained, and to avoid payment of this last, he made an absolute conveyance of certain real and personal property to the defendant, and a written agreement was at

the same time executed, under which the grantee was to pay certain debts against the complainant in consideration of the conveyances made. The complainant now claims that there was a farther agreement made between the defendant and himself, that he, the complainant, should retain his interest in the saloon; that the defendant out of the profits and proceeds of the property was to pay the debts of the complainant, except the notes fraudulently obtained, and that upon payment thereof, the defendant should then reconvey to complainant his interest in the property. The bill was filed in this case for an accounting and for leave to redeem. It is almost needless to say that the defendant claims that the conveyance to him was absolute; that he was not to reconvey when the debts were paid, and that complainant had no interest in the business carried on by him. The case was heard upon pleadings and proofs and the bill dismissed.

All the writings introduced in evidence sustain the defendant's theory. The oral evidence introduced on the part of the complainant, standing alone, is not of that clear and satisfactory character which would justify a court in granting the relief prayed for.

After the conveyance was made certain creditors of the complainant levied upon the property and then filed a bill in chancery to have the conveyance set aside as fraudulent as against creditors. The complainant put in an answer, and was examined as a witness in that case, and also the defendant. The transaction was then by them proven to the satisfaction of the creditors to have been bona fide, and the proceedings were abandoned. No pretence was then made by this complainant that he had any interest in the property, or that it was at any time or under any circumstances to be reconveyed to him. If valid then, it has not changed since We need not discuss the questions raised at length. The decree must be affirmed with costs.

CAMPBELL and GRAVES, JJ. concurred: COOLEY, J. did not sit in this case.

ALBERT W. BATES V. NANCY PHINNEY.

Liability for rent-Construction of agreement.

A three years' lease of farm lands began in March, 1877, and the rent was to be paid annually, October 15. September 2, 1878, the parties terminated the lease, but it was agreed that the tenant might keep possession until he could harvest his crops; that he was to pay no rent from that date; and that this stipulation was not to affect the rent to become due in October. Held, that this did not bind him to pay the rent for the whole year, but only until September 2, the date of the stipulation.

Rent is the consideration for occupancy, and there is no consideration for its payment when the enjoyment of the rented premises ceases.

An action for use and occupation will not lie where no actual use exists or is bargained for.

Error to Hillsdale. Submitted Jan. 14. Decided Jan. 26.

ASSUMPSIT. Defendant brings error.

Shepard & Fowle for plaintiff in error.

Reversed.

George A. Knickerbocker and Charles W. Pratt for defendant in error.

CAMPBELL, J. This was an action for half a year's rent, claimed to be due from Bates under a lease from Ellen Lucas, mother and assignor of Mrs. Phinney.

In March, 1877, Bates took a written lease of a tract of 30 acres in Woodbridge, Hillsdale county, for three yearswhich would be until March, 1880. He paid $5 an acre for the wheat then in the ground, and $2.50 per acre for a lot called the southeast lot, and for the west lot he was to put up a fence. For the second and third years he was to pay $2.50 an acre for the land under cultivation. The rent was to be paid each year on October 15.

In 1878 there was some difficulty and litigation about matters which do not appear in the record; but which do not seem to have grown directly out of the lease. On the 2d of

September, 1878, a stipulation was made between Bates and Mrs. Lucas, whereby he agreed to discontinue his suit, and it was further agreed that he should give up immediate possession to Mrs. Lucas to enable her to put in fall crops, retaining the house and land on which his then growing crops stood for forty days, to enable him to harvest them; but it being in that immediate connection declared that Bates was "to pay no rent from this date." After some further recitals it concluded as follows: "This stipulation being in full settlement of the matter in difference in this suit, but not to affect the rent to become due in October, by said Bates to said Ellen Lucas."

The only question of importance is whether under this stipulation Bates was to pay rent for the whole year ending March, 1879, or for the half-year ending about the date of the stipulation. The court below held that his payment to the latter date left him still indebted for the remaining halfyear when he was out of possession.

We think this was erroneous. October was only the time fixed by the lease at the middle of the year to pay the year's rent. It is quite likely the chief value of the use of the land was in its cultivation. But the lease does not contain anything which indicates that the occupation from October to March was regarded as of no account. There was a house and other conveniences as well as land. And in stipulating for the occupancy of the house and premises for forty days after September 2, 1878, if the whole rent was to be paid in October for the year's occupancy till March, in spite of the surrender, it would have been absurd to speak of Bates being required to pay no rent from September, when in fact he was to pay for six months longer.

Rent is the consideration for occupancy, and there was no consideration for payment when enjoyment was to cease. We think taking the whole document together it merely meant that the surrender and termination of the lease before the rent-day arrived, should not exempt Bates from paying in October the rent due for the half-year's occupancy. There is nothing to support any larger promise, and the theory of