684

Master and Servant.

INDEX.

Mortgage.

the changes made in the arrangements of the mill in the interval be-
tween his terms of employment as bearing upon his want of famili-
arity with them when hurt. Id.

8. Evidence from competent persons as to the dangerous character of
machinery, and the consequences of coming in contact with it, is
admissible in an action for injuries caused thereby. Id.

action on contract of employment. ASSUMPSIT 1,-p. 539.
contract for employment of vessel master: COURTS 3,--p. 539.
evidence as to injury to servant: EVIDENCE 5,-p. 272; NEGLIGENCE
3,-p. 273.

Material-evidence, by sheriff's deed: APPEAL 3,—p. 313.

objections to materiality of evidence: TRIAL 6,-p. 41.

Measure of damages-conversion of timber. DAMAGES 9,--p. 320.
for preventing performance: DAMAGES 3,-p. 62.

See DAMAGES,

Memorandum-of land sale in receipt: FRAUDS, STATUTE OF 1,—p. 636.
Mesne profits-trespass for: TRESPASS 2,-p. 398.
MINES AND MINING CLAIMS.

reservation of mining rights: SPECIFIC PERFORMANCE,—p. 467.
Misjoinder-of complainants: ACTION 4,--p. 21.

Misrepresentation-of consideration of note: BILLS, &c. 12,-p. 566.
to public boards: MUNICIPAL CORPORATIONS 5,-p. 446.
Mistake as to statutory requisites in SETTLEMENT 2,-p. 135.
in compromise, ground for interference: SETTLEMENT 6, p. 432.
Mittimus-for re-arrest of principal: BAIL, &c. 1,-p. 620.
MORTGAGE.

1. The mortgager of land that was worth considerably more than the
mortgage debt, deeded it to the mortgagee and took back a contract
of sale, which provided that in case of default in payment, the party
of the first part should be entitled to immediate possession, and
should also have a lien on the crops. Held, that the deed and con-
tract together should be construed as a mortgage, amounting, only,
to a change in the form of a security for a continuing liability, and
that it was unimportant that the conveyance and defeasance were,
as indeed, was formerly customary, separate instruments. Ferris v.
Wilcox, 105.

2. A deed absolute given by way of security conveys no right of
possession, if the papers show that the relation between the parties
thereto is that of mortgager and mortgagee, and that the mort-
gager is left in possession under an arrangement which amounts to
a defeasance of the deed. Id.

3. It is the presumption of fact that the sum mentioned in a mortgage
as the consideration therefor, is correctly stated; and very con-
vincing proof is required to rebut this presumption. Wiswall v.
Ayres, 324.

4. The defendant in a suit to foreclose a mortgage has the burden of
proving that the consideration therefor, was less than appears
therein if complainant claims that amount, and it is against him if
his own theory of computation is as favorable to complainant as to
himself. Id.

5. A mortgager of land is entitled to possession until foreclosure and
does not forfeit this right by failure to make payments as stipulated.
Ferris v. Wilcox, 105.

6. If a purchaser of a parcel of mortgaged land assumes the whole
mortgage debt, his land becomes the first fund to be resorted to for
its satisfaction, and the land retained by the mortgager becomes
the secondary or security fund. Mich. State Ins. Co. v. Soule, 312.
7. A man executed an assignment of a mortgage security held by
him in order that he might use it, if necessary, to secure himself

229.

and personal creditors, in case of the failure of a manufacturing
concern in which he was interested; but he never did use it and he
continued to collect money on it as his own and used the money
for his own purposes. Held, that this did not show that any effect-
ive assignment was intended or made out. Hutton v. Cuthbert,
8. Where it is understood between a mortgager and mortgagees
that the mortgager shall convey to such person as one of the
mortgagees shall designate, an assignment by the other mortgagee
will not affect a purchaser who, in good faith, takes conveyance
from the mortgager, without notice or knowledge of such assign-
ment; the assignee is subject to the same equities as the assignor,
and if the assignor afterwards gives a discharge of the mortgage to
the purchaser the latter is entitled to regard it as a regular and valid
release thereof. Goodale v. Patterson, 532.

9. Comp. L. § 4235, providing that recording the assignment of a
mortgage shall not be such notice of the assignment as to invalidate
payments made by the mortgager to the mortgagee, applies where
the payment, though not actually made by the mortgager, is so
made as to release him from liability, as by an arrangement between
all parties that he should deed the land to the person making the
payment. Id.

10. A mortgage is not necessarily presumed paid, from lapse of time,
if the mortgagee asserted his right to foreclose in due season, and
there does not appear to be any adverse holding, under the mort-
gager; the purchaser must be understood as claiming under the sale
ever since it was made. Baldwin v. Cullen, 33.

11. A foreclosure suit depending upon the question whether or not the
mortgage debt had been settled, was determined in complainant's
favor upon evidence that complainant had always claimed it as an
existing obligation, and that defendant fully understood that this
claim was made; that neither note nor mortgage had been surren-
dered, and no steps had ever been taken to procure their cancella-
tion or release; that the mortgager had assured complainant that he
had fully informed a second mortgagee of the existence of the prior
mortgage, and of the reasons why complainant insisted on his right
to hold it; and that defendant had made an agreement with com-
plainant in which he set out the existence of a debt, including the
mortgage as securing part of it and as belonging to complainant.
Lyon v. McDonald, 435.

12. The buyer of a portable saw mill gave a series of notes for the un-
paid portion of the purchase price and secured them by a chattel
mortgage on the mill. He also made a contract with the seller
whereby he was to saw for him, and the latter was to be allowed to
withold one-third of the payments due for this work until it should
amount to the unpaid balance. He did not do so however, and
when so much sawing had been done that a third of the payments
therefor would have completed the payment for the mill, the first
note only had been actually paid. As the remaining notes were not
taken up, the seller demanded the property, and as the buyer refused
to give it up he took it on a writ of replevin. Held, that as the seller
had not withheld the money to which he was entitled, and it was
therefore never allowed to apply on the mortgage, it did not follow
that the mortgage was extinguished from the fact, merely, that
enough sawing had been done to satisfy it. McRae v. Davenport,
633.

13. A foreclosure bill will not lie until the debt secured by the mort-
gage under foreclosure falls due. Kelly v. Bogardus, 522.

14. Whatever can be claimed by virtue of a mortgage must be claimed

686

Mortgage.

INDEX.

Municipal Corporations.

in the foreclosure proceedings; the demand cannot be split and
made a basis for separate suits. Vincent v. Moore, 618.

15. Notice of a foreclosure sale is indispensable to its validity, and as
it is the act of the party, and not of the officer making the sale, the
presumption of the performance of official duty does not apply for
the purpose of making out a valid foreclosure without actual proof
of notice. Sinclair v. Learned, 335.
16. A notice of foreclosure by advertisement, purporting to be signed
by the party foreclosing, is not fatally defective for being signed in
the wrong name if the true name is specified in the body of the
notice; the party is not required to sign it. Comp. L. § 6915. Mich.
State Ins. Co. v. Soule, 312.

17. The burden of showing that the amount due on a mortgage under
foreclosure is less than complainant claims is on the defendant,
Lyon v. McDonald, 436.

18. Non-payment by the sheriff to the mortgager, of a surplus received
on foreclosure sale, does not defeat the sale, for the sheriff must ac-
count for the money to the mortgager even though he fails to obtain
it, and if the mortgager redeems without getting it, he still has an
unquestionable right to have it taken into account. Sinclair v.
Learned, 335.

19. The presumption of law that a public officer performs his duty ap-
plies where the question is whether a sheriff's deed on foreclosure
was immediately filed by him as required by Comp. L. § 6920;
and unless the circumstances of the case overturn it, prevails so far
as to throw the burden of proof upon the party who questions the
fact. Id.

20. The mortgager's assent to the possession of the foreclosure pur-
chaser should be presumed if much time has passed without any
question as to the validity of the foreclosure; and such assent would
entitle the purchaser to hold as mortgagee, if not as owner, except
as against proceedings to redeem. Id.

21. If a purchaser at a sale under an invalid foreclosure afterwards ac-
quires the equity of redemption, it operates to perfect his own pre-
vious conveyance of the land and to discharge him from liability on
his covenants of warranty, if that be the purpose of the parties.
Mich. State Ins. Co. v. Soule, 312.

y husband on wife's property: HUSBAND, &c. 6; WITNESS 1,-p. 373.
confirmation of foreclosure title: ESTOPPEL 6,-p. 621.

contract to obtain discharge of: DAMAGES 1,--p. 132.

decree for amount offered in compromise: SETTLEMENT 8,-p. 436.
ejectment for mortgaged premises; EJECTMENT 2,-p. 33.
evidence as to sale thereunder: ASSUMPSIT 7,-p. 491.

of property to evade execution: EQUITY 6,-p 148.

payment by mortgagee to redeem from tax sale: LIEN 1,—p. 618.
refusal of tender made by stranger: MORTGAGE 15,--p. 335.

sale of forged mortgage: EVIDENCE 2,-p. 189

sale of second mortgage as first; FRAUD, &c. 2,-p. 177; TRIAL 13,—
p. 178.

securing contract of sale: CONTRACT 9,-p. 76.

to each grantor where deed is from HUSBAND, &c. 3,-p. 532,
wife as sole owner of mortgage: HUSBAND, &c. 8,—p. 532.
Motion-for dismissal of divorce bill: APPEAL 4,—p. 88.

to dismiss as ground of error: ERROR 2,-p. 5.

to set aside execution sale: HOMESTEAD 4,-p. 158.

to strike amendment from files: EJECTMENT 3,-p. 33.
to strike out testimony: FRAUDS, STATUTE OF 4,-p. 41.
to suppress deposition: DEPOSITION,-p. 84.

MUNICIPAL CORPORATIONS.

1. Where the Legislature, in setting off a new county from an old one,

divided a township, but passed an act impliedly recognizing its con-
tinued existence in one of the counties and attaching the rest to a
township in the other county, it was held that the township organi-
zation was not destroyed. Bay County v. Bullock, 544,

2. The obligation and the power of a city council to act as a board of
health and prevent the spread of contagion is not lessened by their
omission to create a separate board of health, and their power is a
police power, and is commensurate with their duty. Rae v. Flint, 526.
3. The charter of Flint requires the common council to take measures
for the preservation of the public health. Act 145 of 1879 makes the
council the board of health where no other board is appointed.
Held, that a nurse employed by the council to care for small-pox
patients was entitled to compensation from the city, even where the
patient was of sufficient ability to pay for the service himself; and
Comp. L. § 1706, making the cost of services rendered to such per-
sons an individual liability, does not exempt the city from the im-
mediate liability, if, indeed, it applies at all in cases of public emer-
gency. Id.

4. The charter of Saginaw provides for a board of review with juris-
diction of appeals from the assessment of city taxes, and makes its
decision, on such appeals, final. Act 300 of 1875, p. 295. Held, that
the question whether an assessment is excessive is not for the courts
to try. Williams v. Saginaw, 120.

5. Every township board is presumed competent to attend to the busi-
ness it has to do, and in that respect to be equal in ability to any
other board with which it deals. Churchill v. Cummings, 446.
6. Where accounts between two townships are adjusted by their re-
spective boards, one of the townships, in filing a bill to set aside the
settlement, cannot distinguish itself from its board for the purpose
of excusing laches, nor can it claim relief on the ground that its own
board was inferior in ability or in knowledge of facts material to the
settlement.

Id.

abolition of Detroit Central Station Court: COURTS 4,—p. 548.
Murder-See CRIM. LAW 16; HOMICIDE, 2,-p. 200.

Mutual-insurance companies, assessments: INSURANCE 3,-p. 587.
See INSURANCE 5,-p. 287.

NAME.

of defendant, amendment as to: BILLS, &c. 9, p. 113.

of parties omitted in bill: EQUITY 8,-p. 230.

---

of respondents' wife indorsed as witness: CRIMINAL LAW 6,-p. 613.
signed to notice of foreclosure: MORTGAGE 16,-p. 312.

used by agent in making contract: PRINCIPAL AND AGENT 4,—p. 536.
Necessaries-purchase of: VENDOR, &c. 2,—p. 529.

NE EXEAT.

1. History of the practice in England and the United States as to the
writ of ne exeat. Bailey v. Cadwell, 217.

2. The writ of ne exeat is not issuable in Michigan by a circuit court
commissioner or injunction master, nor in divorce cases in advance
of the decree. Id.

NEGLIGENCE.

1. Sending out a train with so few brakemen that on some grades its
speed cannot be checked, cannot be held, as a matter of law to have
no tendency to support an allegation of reckless management; nor can
the neglect be held to be of one degree rather than another; if there
are special circumstances tending to excuse such management, they
are for a jury to weigh. McDonald v. Chicago & N. W. Ry. Co.,
628.
2. Judicial notice will be taken that a box freight car standing still at a
highway crossing is not of itself a frightful object to horses of or-
dinary gentleness; the question is not for the jury. Gilbert v. Flint

& Pere Marquette Ry. Co., 488.

Objections.

3. The age and intelligence of a laborer injured by machinery, and his
experience in the use of such machinery, may be considered by the
jury in an action by him for the injury. Huizega v. Cutler & Savidge
Lumber Co., 273.

4. Negligence cannot be presumed against the defendant in an action
for personal injury if it did nothing outside of the usual course of its
business, unless that course of business was itself improper, or spe-
cial circumstances required particular caution. Mitchell o. Chicago
& Grand Trunk Ry. Co., 236.

5. The negligence of a railway company will not be presumed in an
action against it for personal injury, but must be shown; and there
can be no recovery unless it appears to be the efficient cause of the
injury without any contributory fault in the plaintiff. Id.
declaration for injury by: PLEADING 4,-p. 628.

in coupling cars: MASTER, &c., 5,-p. 253.

in indorsing of certificate of deposit: BANKS, &c., 1,-p. 36.

in signing note: BILLS, &c. 5,—p. 563.

when fire is considered "damage by the elements"

2, p. 363.

LANDLORD, &C.

New Promise-to pay debts discharged by BANKRUPTCY,-p. 121.
Non-payment of assessment: INSURANCE 2,-p. 243.

of surplus received on foreclosure: MORTGAGE 18,-p. 335.
performance of contract; damages: BILLS, &c. 8, p. 186.
Notary Public-attorney acting as: APPEAL 9, p. 100.

Notice of agreements affecting submarine rights: WATERS, &c. 5,—p.
277.

of amendment to claim for improvements: EJECTMENT 3,-p. 33.
of assessment: INSURANCE 3,-p. 587.

of assignments to purchaser of mortgage: MORTGAGE 8,—p. 532.

of business incompetency: BILLS, &c. 6; CONTRACT 2,—p. 529.

of election, dispensed with: OFFICE, &c. 1,-p. 129.

of further proceedings: JUSTICES, &c. 2,-p. 461.

of filing deposition: DEPOSITION, p. 84.

of foreclosure by advertisement: MORTGAGE 16,-p. 312.

of levy, to be recorded: EXECUTION 4,-p. 452.

of matters affecting recovery on note: BILLS, &c. 7,—p. 427.
necessary to foreclosure sale: MORTGAGE 15,-p. 335.

of proceedings to recover possession: LANDLORD, &c. 4,-p. 482.
of sale on EXECUTION: 9, 10,-p. 453.

payment of assessment after time fixed by: INSURANCE 2,-p. 243.
that goods are held subject to order: SET-OFF,-p. 86.

to defend action: VENDOR, &c. 9, PRINCIPAL AND AGENT 2,—p. 298.

to defendant, of levy of execution: HOMESTEAD 2,—p. 575.

to foreign corporation, of action in Michigan: WRIT, &c.; CORPORA-
TIONS 2, p. 5.

to parent, of order committing child: HABEAS CORPUS 2,-p. 599.

to parties concerned in trust-estate: TRUSTS 3,-p. 623.

to produce documents: TRIAL 3, 4,-p. 298.

to purchaser, of dissolution of firm: PARTNERSHIP 4,-p. 585.

to remove timber: TROVER 2; VENDOR, &c. 8,-p. 320.

to warrantor, to defend proceeding: JUDGMENT 5,-p. 298.

Objections to goods delivered under contract: VENDOR, &c. 4,—p. 590.
to sheriff's foreclosure deed: APPEAL 3,-p. 313.

as to care of logs: WATERS, &c. 1, p. 377.

for want of parties: LIEN 3,-p. 573.

on review: JUDGMENT 7,-p. 556.

to an account, to be made seasonably: TIME,-p. 590.
to amendment changing date: PLEADING 9,-p. 466.