the probate of said will; and asking for an injunction against them restraining them from conveying or incumbering any of the real estate, or assigning or foreclosing the Yates mortgage, or from proceeding any further in certain proceedings before a circuit court commissioner instituted to obtain possession of the Chesterfield lands by Bottomley against complainant and his family, or from proceeding in any new action to gain possession of said lands.

The decree of the court below recognized and approved the claim of complainant under his contract, which was found to be as stated in this opinion, and the circuit judge found that the will executed by Hulin in 1860 was destroyed by him in 1878 without the knowledge or consent of complainant; that the defendants, the grantees and assignees in the several conveyances, knew at the date of the same of the contract relations existing between the complainant and Hulin, Sr., and the equitable rights of the former in the property sought to be conveyed by such instruments; that Hulin at the time of the execution of said instruments to said defendants, “by reason of his great age, mental and physical weakness, was incompetent to do and transact business of that nature and character;" that the complainant has at all times substantially kept and performed his part of the agreement made in 1845. The conveyances above in ntioned are declared void, and a fraud upon Hulin, Sr., and the rights of the complainant; and it is decreed that said Hulin died owning the lands and property, subject to the equitable rights and interests of the complainant therein.

We think this decree is right, as far as it goes, and must be sustained. The incompetency of Iulin is apparent, and must have been known to the defendants. None of them pretend to have parted with any value in consideration of the conveyances, except Bottomley. Hulin, 2d, Coddington, and Moses Hulin were each to support the old man for the rest of his life. Bottomley was to furnish money and legal aid to defeat the claim of complainant. Bottomley and Hulin, 2d, made the arrangement first, but Bottomley says he was not satisfied with the deed from Hulin, Sr., to Hulin, 2d, because there was a reservation in it. They therefore hunted up the old man, and Bottomley gave him $1,200 for one 40 on condition that he would quitclaim the other parcels to him, thus cutting off the reservation contained in the deeds to Hulin, 2d. All these defendants had ample knowledge of Leonardson's claim and equities. I am not satisfied that Hulin, Sr., had the mental capacity requisite to destroy the will of 1860, and I do not believe that he fully comprehended what he was doing from 1878 to the time of his death. But we cannot enlarge upon the decree of the court below, as the complainant has not appealed from the same to this court. That decree simply finds that Leonardson has equitable rights under his contract in the estate of Aaron Hulin, Sr., and that the conveyances to the defendants are void. Here we must leave the controversy, so far as this suit is concerned; and it is now the province of the probate court of Macomb county to determine whether there is any will still existing in law.

That the complainant has rights in the property, or some of it, will or no will, cannot well be disputed. We think the amendments made to the original and supplemental bills upon the hearing were properly within the discretion of the court.

The decree of the court below is therefore affirmed, with costs. (The other justices concurred.)

HUDSON V. FEIGE.

(Supreme Court of Michigan. January 6, 1887.)

NEW TRIAL-EVIDENCE-IMPROPER ADMISSION OF ERRONEOUS INSTRUCTIONS. Where, in the trial of a claim for driving logs for defendant, the plaintiff was permitted, against the objection of defendant, to introduce incompetent and imma

terial testimony in support of his claim, upon his proposal to follow it by other evidence, showing its competency and materiality, which he wholly failed to do, and the court instructed the jury on the theory that such evidence had been submitted to them, evincing the fact that the court itself had been misled by it, the judgment will be reversed, and a new trial granted.

Error to Saginaw.

Action on contract for driving logs. Judgment for plaintiff. Defendant appealed. For a full statement of facts see Hudson v. Feige, 58 Mich. 148; S. C. 24 N. W. Rep. 863, 864.

Trask, Grout & Smith, for plaintiff. William H. Sweet, (Wilbur & Brucker, of counsel,) for defendant and appellant.

MORSE, J. The controversy in this suit is stated in 58 Mich. 148, and 24 N. W. Rep. 863, 864, by Justice SHERWOOD, in his opinion filed when the case was here before. The claim of the plaintiff is for driving logs for the defendant, put afloat in the Chippewa river in 1883; which logs were hard-wood, and marked "Diamond F." He also sued upon the claim of one Curry, assigned to him, for driving hard-wood logs in the same river, put afloat therein by the defendant in 1882, and marked "E. F. E." For the driving of these logs he and Curry were to receive each 20 cents per 1,000 feet. The defendant claims that Curry abandoned his drive, and notified him that he should not go back after the logs left behind; that by this action on Curry's part, and also the negligence of both Curry and Hudson in not taking proper care in driving the logs, many of them were left along the stream, to his damage; which damage he sought to recoup against plaintiff's claim, and which he contends amounted to more than said claim. The jury found a verdict for plaintiff for $84.35.

A number of errors are assigned, some of which do not need discussion. A witness, Michal Garvin, was permitted to testify, against objection, that he was employed by Curry to pay off men that worked on the river, and to detail the manner in which he paid them off, and what Curry told him about paying them, and how to pay them. He did not know where the men that he paid off were working. Upon objection being made that this evidence was incompetent and immaterial, and upon motion to strike it out of the case, plaintiff's counsel stated that he proposed to show, as evidence tending to prove that Curry endeavored to take in his rear, including the "E. F. E." logs of defendant, that he employed the witness Garvin to settle with the men who worked on this drive, and that he proposed to follow it up by the testimony of witnesses Hoe and Campbell that Curry sought to take in his rear, and sent his foreman and Campbell and others back to take it in; but they could not do so on account of the stage of the water; and that, if the logs left behind had not been taken out of the stream and sawed by the defendant, there was high water later in the season, by which they might have been run out.

The testimony was permitted to stand, and witness further to state that among the men paid by him were Curry's foreman, Hoe, and Campbell. Plaintiff's counsel failed, however, to introduce any evidence in support of his proposition, outside of Garvin's, although Campbell was sworn as a witness, and the deposition of Curry introduced in evidence. This failure left Garvin's evidence unsupported by the proposed showing, and clearly incompetent and immaterial. It was probably used as a basis before the jury for the claim that Curry did go back and try to take up his rear.

The circuit judge, in his charge to the jury, stated correctly that Curry must be responsible for the damage and expense occasioned to the defendant by any want of diligence in driving the logs; or, if the jury found that Curry stated to the agent of defendant that he would not go back and take any of the logs that were left behind, and, in consequence of such statement, defendant went back himself and took the logs out of the stream, at Mt. Pleasv.31N.w.no.1-3

ant, and sawed them into lumber, and that was the most reasonable way of taking care of them to prevent loss, then, as to such logs as Curry might have got had he gone back and taken in his rear, the defendant could charge, in this suit, to Curry the extra expense it was to him over and above what it would have cost had they been run down the river to Saginaw. But he qualified this as follows: "If, however, you find that Mr. Curry did not absolutely refuse to go back and take in the rear, but declined only to go back at that particular time, when he was requested to do so by Mr. Brazee, [the agent of defendant,] and at that time it was impossible, from the very nature of the stream, for him to comply with Brazee's request, he would only be responsible for such logs as he neglected to drive in the early spring; and he ought, under such circumstances, to have had the opportunity of going back and taking in the rear, if he desired to." There was absolutely no evidence upon which to ground this portion of the charge, except the testimony of Garvin, and the proposal of plaintiff's counsel to follow it up by other evidence, which he failed to do.

If this incompetent and immaterial evidence of Garvin, coupled with the counsel's offer, misled the court, as it evidently did, it probably had the same effect upon the jury, which effect, under this charge of the court, may have influenced the verdict.

He

The evidence appears to be uncontradicted that Curry refused to go back and take in his rear at all, and that he did not go back for that purpose. does not deny this in his deposition.

For these errors the judgment in the court below will be reversed, and a new trial granted. I find no other error prejudicial to the defendant in the proceedings.

(The other justices concurred.)

BROWN and others v. BROWN and another, Ex'rs, etc., and others.

(Supreme Court of Michigan. January 6, 1887.)

1. EXECUTORS-SALE-FRAUD EVIDENCE.

In an action against executors and a purchaser from them for the surrender of real estate alleged to have been fraudulently and collusively sold and conveyed, evidence, on the point of fraudulent interest by the executors in the sale, that they had agreed to sell the land to parties, who were to pay by installments; that such parties did not pay, and sold the property, while in default, for double the purchase price; where the evidence also shows that the interest carried by the contract was greater than the current prices of money at that time, and that the default was allowed for the reason that no more profitable use of the money was then obtainable, and time was not of the essence of the contract,-will not convince the court of fraud.1

2. SAME-INADEQUACY OF CONSIDERATION.

In an action to have a sale and conveyance of certain timber land by executors set aside for fraud, evidence on the point of inadequacy of consideration, tending to show that the property was sold by the executors under contract for a sum, and resold by the purchasers for twice the amount in four months; that it was worth, as valued by experts, three times the amount for which it was sold,-is more than offset by evidence that testator had been willing to sell for less than the price realized; that he had not found lumbering was profitable; that it was distant from water; that prices were speculative; that bids had been made for less than the amount realized; that the purchaser who realized such a large increase in price did so from an adjacent owner, who could afford to pay more; and that it was not clear that the last purchaser had obtained a bargain.

Appeal from Kalkaska. In chancery.

Bill to set aside sale and conveyance of land by executors as fraudulent. Judgment for defendants. Plaintiffs appeal.

Roger W. Butterfield, (Benton Hanchett, of counsel,) for complainants

1See Fitzgerald v. Kelso, (Iowa,) 29 N. W. Rep. 943, and note; Davis v. McGee, 28 Fed. Rep. 867; Neel v. Carson, (Ark.) 2 S. W. Rep. 107; Hudgens v. Morrow, Id. 104.

and appellants. More & Wilson, Smiley & Earle, and Norris & Uhl, for defendants.

CAMPBELL, C. J. The bill in this case, which was dismissed as to all parties in the circuit court for the county of Kalkaska, was brought to set aside a sale of pine lands made by John F. Brown's executors to George W. Crawford and William E. Phippen, and conveyed to Charles F. Ruggles by them at an advance. The bill is based on charges of fraudulent combination between the executors and their vendees, and Ruggles is charged with having bought under circumstances which deprived him of the claim of a bona fide purchaser without notice of the fraud. As the case must depend on the issues made, as well as upon the facts bearing on them, it is necessary to consider the grounds of complaint, which were substantially these: First, an excess of power in selling at private sale; second, that the sale was made without adequate consideration, without publicity, and for sinister purposes, which are charged on information and belief to have been personal gain; third, that Ruggles knew the facts and character of the sale. In brief, the causes of complaint are lack of power to sell, and actual fraud in selling. No other cause is averred.

John F. Brown, who lived at Big Rapids, had, in addition to large personal estate, a mill and various considerable interests in lands and the means of lumbering, and, among other lands, owned the whole of a tract lying in Kalkaska and Missaukee counties, embracing some 1,900 acres, or thereabouts, which is the subject of this controversy. He died March 3, 1881, leaving defendants Palmer and Michael Brown as his executors and trustees to carry out his will. This will empowered the executors to sell or dispose of any of his property "at public or private sale, at such time or times, and upon such terms and in such manner, as to them, acting in good faith and using their best judgment, shall seem meet." The will was probated, and the executors qualified on May 26, 1881. On July 29, 1881, they made a written contract to sell these lands to Crawford and Phippen for $40,000, payable, one-fourth down, and the rest in two, four, and six months, with 8 per cent. interest on all until paid. Phippen and Crawford subsequently bargained with Ruggles on November 6, 1881, for $80,000. The money was paid to the executors until the sale was closed with Ruggles, who paid the amount of principal and interest to complainants, and the balance to Crawford and Phippen, and the executors deeded to their own vendees, who conveyed to Ruggles by warranty deed. Some delay occurred in getting Brown's title cleared on the record, and one-twentieth interest remained unrecorded.

The testimony is voluminous, and in some things inconsistent, and the record contains a good deal of matter that does not now seem material. It will not be necessary or desirable to discuss it much at length. The outlines are sufficiently defined to make a more general statement of results sufficient.

The first objection, of want of power, which seems to have been a principal reliance when the bill was filed, is not now relied on, inasmuch as the question was decided by this court in favor of the power in Palmer v. Keam, 54 Mich. 617; S. C. 20 N. W. Rep. 613. The bill in that case was filed in September, 1881, to get a construction of the will, and it is claimed the pendency of that suit should have hindered the completion of the sale. But as the contract of sale was already in force, and there is no testimony tending to show that the other defendants had any knowledge of the pendency of such a suit, it can have no bearing on the question of actual fraud in agreeing upon the terms of the sale in the first place. All parties relied on the power as actually given. The question of fraud is therefore the only one to be considered.

The bill contains no averments to indicate in what the supposed fraud consisted, beyond a general averment of inadequacy, and a suggestion that the

executors were interested. It is not averred that the property, when sold to Phippen and Crawford, was worth what Ruggles gave for it, or any other sum. The bill contains no reference to any attempts by others to purchase, or any particular wrong-doing. It does not aver anything issuable or tangible on the facts of misconduct. The testimony covers a great many matters out of which, if at all, the fraud is to be deduced or inferred. There is nothing that we have found in the record which seems to us to have any tendency to show that the executors received or expected any advantage from the sale. It appears very satisfactory that they did not. It appears, and we think it is true, that Mr. Palmer, after the sale at an advance to Ruggles, felt desirous that the arrangement might be given up. The testimony indicates that this was an honest feeling of desire that the estate might in some way profit by a higher market. But we do not think the executors were in fault for carrying out their bargain, if honestly made to begin with.

It is undoubtedly true that if Phippen and Crawford were in default in their payments, inasmuch as no advance had been made, it would have required but slight evidence of sharp dealing to authorize a court of equity to decline specific performance. But in this case the interest carried by the contract was larger than the current prices of money at that time, and there is no dispute in the testimony that the delay was agreed to for the reason that no more profitable use of the money was then attainable. The case was not one where time was, under these circumstances, of the essence of the contract, and there was no such default as to forfeit the agreement.

The only remaining ground of fraud is the inadequacy of consideration. As already suggested, the bill is very defective on this head. But the facts have been quite fully introduced, and are before us. The claim on the argument was that the lands in question contained not far from 40,000,000 feet of pine, of which about one-third was Norway, and the rest a good quality of common white pine; that this was reasonably worth at least three dollars a thousand standing; and that the executors knew or should have known it, and could not have made the sale they did honestly. Upon a fair review of the testimony, we do not think that this large estimate of quantity or value can be said to have been either true in fact, or such that the executors should have assumed it. The witnesses vary considerably in their guesses,-to such an extent as to show that they are all conjectural, and dependent on good judgment. There is reason to believe that the land contained at that time not far from 30,000,000 feet of such lumber as would be available for use. But it is also evident that the variation between the old and new estimates was due somewhat to the fact that several years earlier trees not measuring 12 inches in diameter at the smaller end of the cuts, were not marketable, while now timber is valuable, in long pieces, which is not more than eight inches in diameter, and some of the estimates seem to include still smaller trees. So far as value is concerned, the weight of testimony is that it is affected and largely governed by the expense of getting it to a place of destination, where it will have an established market value. These are the two questions at which most of the testimony is aimed.

It appears that these lands were bought by Mr. Brown, several years before his death, from the Tioga Manufacturing Company, upon an estimate made by one Aitkin, with which both parties were satisfied, and which seems to have been made honestly, and upon proper examination. One or two sales were made by Brown to other parties in reliance, so far as he was concerned, on those same estimates, with which he never seems to have found fault. Mr. Brown lumbered on the tract containing these lands, so that out of about 2,900 acres left him he had cut about 1,080, leaving the remainder that the executors sold. On the lands so remaining the Aitkin estimate left not far from 20,000,000 standing. Some of the testimony indicates a reduction on this. It appears, also, that during his life Mr. Brown did not find lumbering