The foreclosure made by Smith in no manner, however, affected the rights of Jennings in the security. Neither had any preference over the other before such foreclosure, and no such preference was acquired by the proceedings to foreclose. It undoubtedly took away the rights of Mrs. Moore to the possession if the foreclosure proceedings were valid, but it in no manner adjusted the rights between Jennings and Smith. By the proceedings, Smith did not become the owner of the whole land, or any definite undivided interest therein, freed from the lien of Jennings's part of the mortgage. Though it operated as a foreclosure of the rights of Mrs. Moore, or any person claiming through or under her, yet Jennings's rights and interests were not changed under his mortgage lien, as his rights were in no way subordinate to those of Smith. But Smith having purchased Mrs. Moore's equity of redemption, he has the right to redeem from the lien under the Jennings portion of the mortgage. Failing in this within six months from this date, the premises will be advertised and sold as in ordinary foreclosure proceedings, and the moneys arising from the sale be brought into court and be distributed, under order of the court, between Smith and Jennings, in proportion as the notes held by each bear to the whole amount secured by the mortgage. The decree of the court below setting aside the mortgage foreclosure made by Smith will be reversed, and decree entered in the court below in accordance with this opinion, the case to be remanded to the court below for the purpose of carrying out the decree. Complainant will recover his costs. PAYMENT SEVERAL NOTES. Where four notes were secured by one mortgage, and the first two which matured were also signed by a surety, the property having been sold under the mortgage for an amount more than sufficient to pay off the first two notes, but not enough to discharge all the notes, the surety could not insist in applying such amount upon the first two notes, but the holders of the other notes were entitled to apply the money upon their notes: Hanson v. Manley, 72 Iowa, 48. Unsecured debts have the preference over secured debts: Frazier v. Lanahan, 71 Md. 131; 17 Am. St. Rep. 516. But in Duncan v. Thomas, 81 Cal. 56, it is decided that in the case of several obligations, neither party making the application, a payment by the debtor will be applied by the law upon the one which first matures; and this rule is applied in Georgia to unsecured and secured claims alike: Lawton v. Blitch, 83 Ga. 663. ASSIGNMENTS — PAROL EVIDENCE. — Ordinarily, parol evidence cannot vary a written assignment: Richardson v. Johnson, 41 Wis. 100; 22 Am. Rep. 712; Osgood v. Davis, 18 Me. 146; 36 Am. Dec. 708. MENZER V. MENZER. [83 MICHIGAN, 319.] - DIVORCE - EXTREME CRUELTY. Where a husband conveys to his wife his homestead and household furniture, constituting the bulk of his property, after which his wife refuses to cohabit with him, and although allowing him to keep a room in the house, finally drives him from it by moving away and leasing the house to strangers, this constitutes extreme cruelty on her part, which entitles the husband to a divorce. Frank B. Leland, for the appellant. Howard and Gold, for the respondent. MORSE, J. The bill of complaint in this cause was filed November 24, 1888, praying for a divorce on the grounds of extreme cruelty and desertion. Defendant answered, denying the acts of cruelty and desertion charged, and alleging that the cause of their domestic unhappiness was the fault of complainant. The parties were married in January, 1866, in California. Since 1870 the complainant has resided in Flint, Genesee County, Michigan. His wife lived with him until April, 1887, but now resides in Detroit. The children of the marriage live with her. There are four of them, two sons and two daughters. At the time of the filing of the bill they were aged, respectively, twenty-two, twenty, fourteen, and ten years. The testimony of the complainant makes a sufficient case of extreme cruelty on the part of his wife. Most of the acts charged, however, stand alone upon his evidence, without corroboration from any one. The children support the mother in her denial of cruelty to the father. To the same effect is the testimony of a domestic, a woman who lived in the family for ten or twelve years, and up to within two or three years of the separation of the parties. The circuit judge, before whom the testimony was taken in open court, refused the complainant a decree, and dismissed his bill. One of the main charges of cruelty in the bill, we think, is sustained by the evidence. The complainant is shown to be a hard-working, industrious man, and more than generous in his expenditures for his family. His wife was inclined to be extravagant, but her wants and wishes were always gratified in the way of household expenses. The testimony of every disinterested witness shows that, ordinarily, the complainant was the most indulgent of husbands and fathers, and more so than his means warranted. One of his sons testifies: "My father seemed to do everything he could for his family." There were quarrels between husband and wife, in which neither was blameless, but he has been more sinned against than sinning. He erected a comfortable and substantial home upon two lots in the city of Flint, which is worth four or five thousand dollars. This he caused to be deeded to the defendant. He also gave her all the furniture therein, except his own personal belongings. This was the bulk of his property. For some time after his wife refused to cohabit with him, he was allowed the privilege of a room in this house, but finally he was driven from it. His wife moved to Detroit, and rented the homestead to strangers. It is evident, also, that he was not well treated for some time before he was compelled to leave the house. We think this action of the wife can be considered extreme cruelty. One of his daughters also sent a communication to a disreputable paper at Saginaw, which was published, in relation to her father, showing a malicious spite and feeling not commendable in any child, much less in one who had been so generously and kindly treated as she had been by her father. The mother aided and abetted the daughter in this transaction. It is evident that the wife has lost all affection for her husband, and does not desire to live with him any longer. But she is determined that he shall not have a divorce, and is actuated in this determination by something more than the fact that she is a Catholic, and does not believe in divorces, which she claims is the reason of her opposition. The decree of the court below, dismissing complainant's bill, is reversed. He will be granted a decree of absolute divorce here for extreme cruelty. No costs will be allowed either party. As the wife has nearly all the property, no alimony will be granted her. DIVORCE-EXTREME CRUELTY. - As to what constitutes cruelty which is a valid ground for a divorce, see McVickar v. McVickar, 46 N. J. Eq. 490; 19 Am. St. Rep. 422, and note 433; Youngs v. Youngs, 130 IL. 230; 17 Am. St. Rep. 313, and note. SHAW v. HILL. [83 MICHIGAN, 322.] EJECTMENT-PARTIES. — An employee of defendant in ejectment, who is permitted to reside upon the disputed premises when the suit is brought, and who claims no interest in the land, is not a necessary party defend ant. EJECTMENT, WHAT NECESSARY TO MAINTAIN. - Plaintiff, who has no title to the land, but entered into possession in good faith, under a claim of right which proved valueless, may maintain ejectment against one who obtained possession through plaintiff's tenant, and who shows no title, right, or interest in the land, except a claim, merely asserted, and not proved, of being the original owner. EJECTMENT.-EQUITABLE TITLE CANNOT BE SET UP to overthrow a legal title in an action of ejectment. EJECTMENT EQUITABLE TITLE-DEFENSE. — The right of possession under color or claim of title by plaintiff in ejectment may be prima facie title as against a mere intruder; but when an equitable interest is shown by defendant which is unconnected with and independent of plaintiff's clan of title, such defendant may show in defense that plaintiff has no title to the premises. Jacob J. Van Riper and George S. Clapp, for the appellant. O. W. Coolidge and Edward Bacon, for the respondent. MORSE, J. This case has been here once before, and will be found reported in 79 Michigan, 86. The facts are not materially different from what they were then, except in the showing made by defendant as to her title to the premises. There was also on the last trial some evidence tending to show that one Curran was in the actual occupancy of the premises at the time this suit was brought, and it is claimed by the defendant that he should have been made a defendant. It was shown, however, that the occupancy of Curran was for but a short time, and while he was working for defendant; that he made no claim to any rights in the land, either as tenant or otherwise. It seems he wanted to move into the house on the premises, and the defendant permitted him to do so. Under the circumstances, it was not necessary to make him a party. We held in the case when it was here before that plaintiff, although he was shown to have no title in the land, but entering into possession in good faith, under a claim of right — his tax title deeds - which proved valueless, could nevertheless maintain ejectment against the defendant, who obtained posBession through plaintiff's tenant, Streeter, and who showed no title, right, or interest in the land, except a claim, merely asserted, but not proved, of being the original owner of the land; citing Bertram v. Cook, 32 Mich. 521; Cook v. Bertram, 37 Mich. 125; Bertram v. Cook, 44 Mich. 397; Morse v. Byam, 55 Mich. 594; Fuller v. Sweet, 30 Mich. 241; 18 Am. Rep. 122. See Shaw v. Hill, 79 Mich. 90. But it was also pointed out in the opinion that had the defendant proved title to herself in the land, the suit could not have been maintained by the plaintiff, for the reasons given in Jochen v. Tibbells, 50 Mich. 36, where it was said that if "the landlord seeks to recover the possession he can do so under the lease; but if he goes further, and claims the premises in fee, the tenant is not estopped from denying any right claimed by the plaintiff further or greater than that of possession. This fully protects the landlord, who regains his possession, and the tenant, having gained no advantage by taking a lease, the parties then are in proper position to litigate the title, should they desire so to do. If the plaintiff's position is correct, a judgment in fee may be obtained by estoppel against the tenant, and thus the landlord has acquired an advantage which he would not be entitled to." This is exactly what has been done in this case. The verdict was directed by the court that the plaintiff was well entitled to hold the premises in fee, and against the defendant for possession; and without any title at all, the plaintiff has judgment against the defendant for the fee of the land. It is true, when the case was here on the other record, we said that such a judgment might be entered as against a mere intruder upon the possession of one having prior possession, and being ousted by such intruder; and that against such an intruder the person first in possession, claiming title, has a valid, subsisting interest amounting to a prima facie title in fee. The trial court undoubtedly intended to follow our ruling when he directed the verdict as he did upon the last trial. But upon the first trial Mrs. Hill made no proof of any right or title in herself to the premises, and this was the controlling fact which ruled our holding when the case was first here. Upon this record, it appears that she proved at least an equitable title to or interest in the land, entirely independent of and adverse to any claim of plaintiff. She showed a patent from the United States to Charles J. Lanman, September 10, 1838. She also introduced the records in the office of the register of deeds of Berrien County, which showed a deed by Lanman and wife to Stanley H. Fleetwood, September 13, |