for registration of the motorcycle in which he described
defendant as the owner; held, that defendant's requests,
or their equivalent, properly presenting his theory, should
have been given, and it was error for the court to refuse
them. Ueck v. Meatz, 439.
See APPEAL AND ERROR (2, 6, 8, 10, 12); BROKERS (1, 3, 5);
EVIDENCE (6, 17); INSURANCE (5); MASTER AND SERVANT
(8); MUNICIPAL CORPORATIONS (10).
1. In proceedings for the cancellation of a conveyance from
a husband to his wife, if the conveyance was voluntary
the husband was not entitled to relief even though a parol
trust was annexed. 3 Comp. Laws, § 8835 (3 Comp. Laws
1915, § 11571). Judd v. Judd, 198.
2. But where the record shows that at the time the convey-
ance was made complainant was deceived and misled by
defendant into the belief that she intended to continue
in the marriage relation with him, while in fact she in-
tended to secure a divorce as soon as convenient, which
she later did, it was a fraud upon him and he was entitled
to equitable relief. Id.
3. Former opinion affirmed, distinguishing Wipfler v. Wipfler,
153 Mich. 18 (115 N. W. 544), where the fraud, if any,
occurred after a voluntary conveyance, while in the case
at bar the conveyance was induced by fraud. Id.
4. The intestate left a small estate and $7,000 in life insur-
ance which was payable to his widow who became and
acted as administratrix of the estate. Pursuant to the
oral request of decedent, his widow put aside $1,000 for
a home for the son-in-law, which sum she was obliged
to make up out of the insurance, in order to carry out
the said desire expressed by the intestate, taking title in
her name under her agreement in writing to manage the
property for the benefit of the grandchildren, to whom she
was to deliver one-fourth of the property each, on their
attaining their majorities; $200 was advanced by the son-
in-law. Held, that the entire amount so invested was
impressed with the trust and she was not entitled to be
reimbursed for the amount of her advancement, but only
for her proper expenses of administration, though the
estate never produced any money and said investment ulti-
mately was derived from her interest in the life insurance.
Dickey v. Joy, 615.
See BANKS AND BANKING (2-4, 6, 8); WITNESSES (2).
UNDUE INFLUENCE-See WILLS (2).
1. Under Consolidated Laws New York (1909), Vol. 2, § 370
et seq., the rate of interest is limited to 6 per cent. By
statutes of Texas interest is defined as the compensation
allowed by law or fixed by the parties to a contract for the
use or forbearance or detention of money. Interest rates in
Texas are limited to 10 per cent., in New York to 6 per cent.
In a suit to recover an installment of rent on a lease of
certain real estate located in Texas, brought in Michigan by
the lessors, who were residents of New York, providing for
the payment by lessees of twenty per cent. of the amount
invested in the Texas property, and a 10 per cent. fee for
services in clearing the land and preparing for the first
crop by lessors to be paid at Buffalo, N. Y., in semi-annual
installments, where no proofs tending to show any intent
to evade the statute were offered, held, that the rental was
recoverable as such and no usurious conditions had been
shown. Cf. 2 Comp. Laws 1915, § 5998. Eames v. Barber, 1.
2. Interest is a charge for the loan or forbearance of money.
In order to bring a contract within the theory of the
statute, the use of money, or a debt, must be the basis of
the transaction. Id.
VACATING JUDGMENT-See JUDGMENT (3).
VALUE OF DESTROYED GOODS-See INSURANCE (9).
VARIANCE-See FIRES (2); PLEADING (1, 2).
VENDOR AND PURCHASER.
1. A land contract in the form of a receipt for $25 "“as a
deposit on house located at 1415 Chene street, purchase
price $3,450. One thousand will be paid before June 15,
1915. Balance $300 and interest," signed by the vendor,
did not contain a sufficient memorandum of the terms to
satisfy the statute of frauds, since the time of performance
must be clearly stated. Rosenbaum v. Tyszka, 457.
2. A land contract that by express provisions was to be in-
validated if the vendee sold other beer than a certain
product described in the writing was not avoided by a
breach of the condition if the agreement was severable and
if, after eliminating the illegal portions, the remainder
of the contract was lawful and supported by sufficient
consideration. Marx v. Insurance Co., 498.
3. A contract for the sale of land which involved the pur-
chase of the property by plaintiff, by whom the necessary
funds were advanced, and the realty resold on instalment
payments to the liquor dealer, was based on severable
conditions and, hence, not rendered void by the breach of
one of the conditions, where the same did not necessarily
influence the plaintiff to make the agreement and was not
the essential part of the land contract. Id.
VERDICT-See LIBEL AND SLANDER (4).
VOID CONTRACT-See CONSTITUTIONAL LAW (2); INTOXICATING
LIQUORS (2, 3).
VOLUNTARY CONVEYANCE-See TRUSTS (1, 3).
WAIVER-See CARRIERS (9); INSURANCE (6-8, 11, 13, 22); LAND-
LORD AND TENANT (4).
WANT OF CAUSE-See FALSE IMPRISONMENT (2).
WARRANTY-See EVIDENCE (4).
WATERS AND WATERCOURSES.
1. Where, in an action for flooding lands, a prescriptive right
was claimed, it was not a right to maintain the grade, but
a right to hold the water back on plaintiff's land, and must
be shown by the fact that the water had been 'held back
during the prescribed period of time. Hume v. Railway
Co., 226.
2. And where no way for the escape of the surface water has
been shown since the construction of defendant's grade in
1871, the inference that it must have been held back upon
plaintiff's land, while very strong, is not conclusive, and
is not equivalent to a direct finding by the jury. Id.
3. In an action of trespass quare clausum fregit, where de-
fendant, in his notice, alleged that a small, shallow, inland
lake, without inlet or outlet, wholly upon plaintiff's prem-
ises, was "public, meandered, and navigable waters," and
claimed the right both to fish and go over plaintiff's prem-
ises to reach it, for that reason, the burden of proving his
allegation was upon defendant. Giddings v. Rogalewski,
319.
4. No presumption that it is meandered arose from its size,
location, or relation to other waters, and, in the absence
of direct proof, all inferences are to the contrary. Id.
See APPEAL AND ERROR (6); NAVIGABLE WATERS.
WATER SUPPLY-See MUNICIPAL CORPORATIONS (18, 19).
WEIGHT OF EVIDENCE-See APPEAL AND ERROR (9); INSUR-
ANCE (10, 12).
1. Under 3 Comp. Laws 1915, §§ 13776-8, requiring any person
having custody of any will to deliver it to the probate
court within thirty days after he learns of the death of
testator, a person who accidentally came upon the instru-
ment and filed it away after the testator's death, was not
a custodian within the meaning of the statutory provisions
and so was not liable for the penalty prescribed by the act.
Barney v. Barney, 45.
2. In proceedings contesting a will on the ground of undue
influence, the question is not so much a question of law as
it is of fact, but where there was no competent evidence of
undue influence it was not erroneous for the court to take
the question from the jury. Porter v. La Rue, 477.
3. Where the court properly instructed the jury as to the
degree of competency requisite to make a will, it was not
objectionable to also charge that "the right to make a will
is a sacred right, and ought not to be frittered away by
imagination or uncertain testimony," and it cannot be said
that such language gave the impression to the jury that
in the opinion of the court the evidence on the part of
the contestant was purely imaginary and wholly uncer-
tain. Id.
4. Under section 9270, 3 Comp. Laws (3 Comp. Laws 1915,
§ 11825), a testator might, either by burning, tearing,
canceling, or obliterating, revoke a part of his will if the
act was done intentione revocandi. In re Fox's Estate,
700.
5. The fact that a pencil instead of a pen was used in can-
celing a section of a will is not significant; either instru-
mentality may be used. Id.
6. Where the will was in the possession of the testator up
to the time of his death, and it is conceded that the marks
obliterating a section were made by him, held, sufficient
to sustain the finding of the court below, that said section
was obliterated with the intention of revoking it. Id.
See EXECUTORS AND ADMINISTRATORS (1); HUSBAND AND WIFE
(1); JURISDICTION; PROCESS.
WITHDRAWAL OF OFFER-See COMPROMISE AND SETTLEMENT.
WITNESSES.
1. In equity proceedings to recover certain property or its
value, where the bill alleges that the property was deeded
to complainant, and the deed, without being recorded, was
destroyed by deceased and her beneficiaries, confederating
together, the suit being defended by them and the per-
sonal representative of deceased, the testimony of com-
plainant was not admissible under 3 Comp. Laws, § 10212
(3 Comp. Laws 1915, § 12553), excluding testimony as to
matters equally within knowledge of deceased. McDaniels
v. Crosby, 18.
2. The same rule applies in an attempt to pursue a trust
fund. Id.
3. While there was some testimony other than that given by
complainant which tended to prove the execution of the
deed to complainant, upon complainant's testimony alone
rested the delivery of the deed, and, held, the competent
testimony upon the delivery of the deed with intent to
vest title in complainant was insufficient. Id.
See CRIMINAL LAW (2-4); EVIDENCE (7); NEW TRIAL (1);
SPECIFIC PERFORMANCE (2); TRIAL (2, 4, 5).
WORDS AND PHRASES-See CARRIERS (8); CONSTITUTIONAL
LAW (5); MASTER AND SERVANT (19, 32, 33); Usury.
WORK AND LABOR-See ESTATES OF DECEDENTS; LOGS AND
LOGGING.
WORKMEN'S COMPENSATION LAW-See CERTIORARI; MASTER
AND SERVANT.
WRITTEN APPLICATION-See INSURANCE (5).
WRITTEN INSTRUMENTS-See EVIDENCE (3, 4, 11); MECHANIC'S
LIENS (4).
X-RAY PICTURE-See EVIDENCE (2).
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