chased, and refuse to pay anything therefor. The evidence clearly shows that this machinery could not have been procured any cheaper. It also shows, and the jury must have found, that the plaintiff had no claim upon the interest that the defendant had in it, though they gave the plaintiff a verdict for $45, apparently placing a less value on Klein's services than he did. We are of the opinion that the verdict is quite as favorable to the plaintiff as the facts and pleading warrant. The judgment is therefore affirmed. The other justices concurred.

NILES v. FARMERS' MUT. FIRE INS. CO. OF GRAND TRAVERSE, ANTRIM, AND LELEENAU COUNTIES. (Supreme Court of Michigan. Jan. 20, 1899.) INSURANCE-INCUMBRANCE-CONCEALMENT. Insured held, under a land contract whereby he was to pay $350, a portion of a tract mortgaged for $500. His application stated that the property was incumbered for $350. Held to be a concealment avoiding the policy, since the land was mortgaged for $150 more than divulged.

Error to circuit court, Antrim county; Roscoe L. Corbett, Judge.

Action by Cyrus Niles against the Farmers' Mutual Fire Insurance Company of Grand Traverse, Antrim, and Leleenau Counties. There was a judgment for plaintiff, and defendant brings error. Reversed.

Leavitt & Guile, for appellant. son and N. C. Weter, for appellee.

H. B. Hud

LONG, J. This is an action on a fire insurance policy held by plaintiff in the defendant company. The policy was issued December 2, 1893, and covered $750 on dwelling house, and $250 on furniture, etc., therein. The premiums were fully paid, and the house, furniture, etc., were destroyed on March 3, 1897. On the trial the jury returned a verdict in favor of plaintiff for $562.50 on dwelling house, and $187.50 on furniture, etc. Several defenses were interposed, but most of them were settled by the verdict on questions of fact, which were properly submitted, and will not be discussed.

It is contended that the policy was void because a certain mortgage of $500 was not disclosed to the insurance company.

It ap

pears that the plaintiff purchased by land contract 10 acres of land from his brother, upon which was located the dwelling house insured. He paid nothing upon the contract, but went at once into possession of the property. At or before the time of this purchase by the plaintiff, his brother had mortgaged his farm of 80 acres (and of which this 10 acres formed a part) for $500. By the terms of plaintiff's contract, he was to make certain additions to and improvements upon the house, and upon the payment of $350 was to have his deed of the premises. He had made the additions and improvements, but had not

paid the $350, when the policy sued upon was issued to him. In the application for the insurance the question was asked, "Is the property incumbered by mortgage or otherwise?" to which the plaintiff answered, "Yes; to the amount of $350." By the terms of the policy, the application is made a part of the contract, and is to be construed as a warranty by the insured of the truth of the facts therein stated. The contention of counsel for defendant is that the omission to state this $500 mortgage given by the plaintiff's brother amounts to a fraudulent concealment of a material fact, and avoids the policy. Counsel for plaintiff insists that this question is ruled by Insurance Co. v. Gilbert, 27 Mich. 429. That case, however, is not controlling. There Gilbert had purchased by contract from one Prentice the 80 acres upon which the insured buildings stood. The purchase price was $4,000, and only $50 of it had been paid down. Prentice covenanted to convey a good title, free of incumbrances. At the time of this conveyance, and at the time of the loss, there was an outstanding mortgage on the land to one Smalley for $300. The application stated the value of the house at $4,000, and asked for $2,500 insurance, and on the barn $250. The application also stated: "Loss, if any, payable to mortgagee, so far as his interest may appear. John Prentice, mortgagee." The application then proceeds to ask: "What is the title? A. Article of agreement." "Is your property incumbered, -by what, and to what extent? A. By mortgage for $4,000." "If incumbered, what is the whole value of your real estate, including buildings and land? A. $8,000 or more." The policy referred to the application, and made it a part of it, and a warranty by the insured. In reference to the Smalley mortgage, the court below stated to the jury, in substance, that inasmuch as Prentice, by his contract, had undertaken to convey to plaintiff a good title, and was therefore bound to pay off the amount due on this mortgage, and would not be entitled to this $4,000 from the plaintiff until he did so, and could recover only the $4,000, less the sum due on that mortgage, the latter was in legal effect inIcluded in the statement of the $4,000 mortgage to Prentice. This charge was held to be correct. In the present case, however, the representation was that the incumbrance was only $350. This did not include the $500 mortgage with which the 80 acres was incumbered, and was not so intended. The $500 incumbrance was not stated. It is apparent that the property was incumbered for $150 more than stated in the application. The insurance company had the right to be informed of the total amount of the incumbrance. By the terms of the contract, the statements in the application were made warranties, and the company had the right to rely upon them as true. The court below was in error in holding that such representations were immaterial. The court should have di

1. Pub. Acts 1897, No. 180, § 1, confers authority on the probate judge to issue a license and perform the marriage ceremony when the female is with child, or when she has been living with some man as his wife, where the application for license is accompanied "by the written request of the parent or guardian of the minor, when only one of the parties is under the marriageable age fixed by statute." Held that, when there is no parent and no guardian of a minor applicant, a guardian must be appointed, else the judge cannot act.

2. Under How. Ann. St. § 6224, providing, in case of marriage of parties either of whom is under the age of consent, that if they shall separate during such nonage, and not cohabit together afterwards, the marriage shall be deemed void. without legal process, the marriage is to be deemed void whenever, after the minor comes of age, the question of its validity may arise, and it appears that there has been no actual cohabitation from a time during the nonage, unless the failure to cohabit is due to desertion of the minor by the other spouse.

3. In a prosecution for statutory rape, it may be shown, to enable prosecutrix to testify, that no lawful marriage ever took place between her and defendant, though they went through the ceremony.

4. The admission of incompetent evidence of a fact otherwise established is harmless.

Exceptions from circuit court, Emmet county; Oscar Adams, Judge.

Earl Schoonmaker was convicted of statutory rape, and he brings exceptions. firmed.

Af

Fred A. Maynard, Atty. Gen., and Clay E. Call, Pros. Atty., for the People. B. T. Halstead, for respondent.

MONTGOMERY, J. This case has once been before this court for review. The opinion on the former hearing will be found reported in 75 N. W. 439. On the second trial the respondent was again convicted. On the second trial it appeared in evidence that the parties went through the ceremony of marriage before the judge of probate, and that this marriage took place on petition of Maude Breen, without any consent by a guardian; that after the ceremony the parties made arrangements to go to housekeeping, but never in fact lived together, either before or after the witness arrived at the age of consent, she being, at the time the testimony was given, 16 years and 3 months of age, or thereabout. Two questions are presented: First, whether the marriage was a valid marriage, under Act No. 180 of the Public Acts of 1897; and, second, whether the marriage was void, under the general statute.

1. Section 1 of the act of 1897, above referred to, confers authority upon the judge of probate to issue a license and perform the marriage ceremony in certain specific cases, viz.: "Where the female is with child, or where she has been living with some man as his wife, in cases in which the application for such license is accompanied by the written request of the parents of both parties, if living, and their guardian or guardians, if either or both of the parents are dead, or by the written request of the parent or guardian of the minor where only one of the parties is under the marriageable age now fixed by the statute, when according to his judgment such marriage would be a benefit to public morals." The circuit judge held, in effect, that this statute conferred a special authority upon the judge of probate, and, before that officer is authorized to act, the conditions fixed by the act must be complied with. We think this ruling right. This statute had a special purpose, and the marriage of young children, under the age of consent fixed by the general statute, was safeguarded by a requirement that there be a consent by the parent or guardian. It is contended that the statute should be so construed as to require the assent of the guardian in case the infant already have a guardian; but such a construction would, in our judgment, amount to an extension of the statute. The provision requiring the assent of the guardian was doubtless inserted with the view that the guardian would have opportunities not afforded a probate judge for making investigation of the character and ability of the contracting parties, with a view to determining the propriety or desirability of a marriage between them. 2. The witness Maude Breen was at the time of the ceremony under the age of 16 years, and incapable of making a full contract of marriage, under sections 6209 and 6210, How. Ann. St. The question is therefore presented whether, under section 6224, the voidable marriage was avoided at the time the testimony was given on this trial. This section provides that in case of a marriage solemnized where either of the parties was under the age of consent, if they shall separate during such nonage, and not cohabit together afterwards, the marriage shall be deemed void, without any decree of divorce or other legal process. In the case of People v. Slack, 15 Mich. 193, it was held that a marriage between two parties, one of whom was under the legal age of consent, was voidable merely, and not absolutely void, and when, as appeared in that case, the party to the marriage who was of full age deserted the other, the marriage had not ceased to be binding upon him; the court treating the word "separation," as used in the statute, as signifying a voluntary separation. Upon this point there was an able dissent by Mr. Justice Campbell, but the rule of the majority opinion has too long prevailed to be now open to question. In that case, however, there

was cohabitation immediately following the marriage, and continuing until the desertion of the wife by the husband. In the present case the witness never, after the marriage, cohabited with the husband. She testifies that at the time of the marriage it was her intention to live with respondent; that shortly after the marriage she went to the house of her stepfather, intending to return to respondent; that this was understood between herself and respondent, but she did not in fact return to him, and has never cohabited with him since she reached the age of consent, nor is there any evidence of a present purpose to do so. Clearly, the marriage has never been ratified or validated in the manner contemplated by the section above quoted. Does it then continue for all time a marriage merely voidable? If so, this woman, for some purposes, is to be treated as respondent's wife during life, although she has not, since reaching the age of 16, cohabited with him, or exhibited any intention of doing so. We think the statute cannot be so construed. provides that such a marriage, not followed by cohabitation after the disability of nonage is removed, shall be deemed void, without any decree or order of the court. When deemed void? Clearly, whenever, after the disability is removed, the question may arise, and when it appears that there has been no cohabitation, unless such failure to cohabit is due to the desertion of the minor spouse, in which case the willingness to cohabit may be treated, upon the authority of People v. Slack, as equivalent to continued cohabitation. See People v. Bennett, 39 Mich. 208. We think the testimony of Maude Breen was properly admitted. It is competent to show that no lawful marriage ever took place, even though the parties went through the ceremony. Am. & Eng. Enc. Law, 633.

It

29

Objection was made to the certified copy of the license, etc., given out by the secretary of state; but the testimony of witness Maude Breen showed the absence of any request by a guardian, and, as the question of competency was for the court, this testimony was sufficient to prove the fact, and it is unimportant whether the objection to the documentary evidence is well or ill founded. The charge of the court we find full and fair and sufficiently favorable to respondent. The conviction is sustained.

2. The holder of a mortgage had assigned it as collateral, and by mistake the pledgee in dis charging the assignment wrote opposite the mortgage record, instead of the assignment record, the words, "In consideration of the full payment of all moneys secured to be paid, I hereby discharge the same of record." A person shortly bought part of the land, relying on an abstract showing a discharge of the mortgage. Held, that he is protected as a bona fide purchaser against a foreclosure by the mortgagee.

Appeal from circuit court, Van Buren county, in chancery; George M. Buck, Judge.

Suit by George Lowry against Alvin Bennett and others. From a decree for plaintiff, defendant Bennett appealed. Reversed.

Benjamin F. Heckert and Howard, Roos & Howard, for appellant. T. J. Cavanaugh, for appellee.

MONTGOMERY, J. This is a case brought to foreclose a mortgage, given September 27, 1886, by James Lowry to the complainant. The mortgage is in the sum of $400, payable five years from date, with the privilege of paying $100 or more at the end of any year after the first two years. This mortgage was duly recorded, and on the 15th day of January, 1887, an assignment of the mortgage was made to the Paw Paw Savings Bank. This assignment constituted the assignee the attorney of the assignor, to in case of payment give acquittance or sufficient discharge as fully as the assignee might do, and contained a recital that the assignment was made as collateral to a loan of $100 made at the date of the assignment by the bank to George Lowry. On the 2d of January, 1889, the cashier of the bank, in the presence of the register of deeds, entered opposite the record of the mortgage in the office of the register an indorsement reading, "In consideration of the full payment of all moneys secured to be paid, I hereby discharge the same of record as cashier of the Paw Paw Savings Bank. John W. Fee, Cashier of Paw Paw Savings Bank." The defendant Bennett, on the 30th of January, 1889, bought a portion of land covered by the mortgage, in good faith, relying on an abstract showing a discharge of the mortgage. They also gave testimony tending to show that complainant was present at the time they made this purchase, and that he assured them that the mortgage was paid. The court found against the defendants on this question of fact, and we think rightly. The complainant gave testimony showing conclusively that the entry opposite the mortgage was a mistake; that the intention was to discharge the assignment, and not the mortgage. The question, therefore, is whether the complainant is, notwithstanding the discharge, entitled to foreclose the mortgage as against defendant Bennett. The circuit court held that he was, and defendant Bennett appeals. The complainant contends that the recital in the assignment that the same was made as collateral to a loan was notice limiting the right of the assignee to receive payment and discharge

the mortgage, and that the wording of the discharge itself was unusual, inasmuch as the mortgage was not named in the release; that, at least, the purchaser was put upon inquiry by these circumstances. We think it is clear that one who holds an assignment of a mortgage as collateral security may receive payment and give a valid discharge. Jones, Mortg. § 963. This is generally true, but more certainly is it true when, as in the present case, the assignment contains an express authority to receive payments and give a discharge. We discover nothing in the wording of the discharge which, taken alone or read in connection with the assignment, suggests the idea that it was intended to apply to any other than the mortgage itself. It was entered on the margin of the mortgage, and it is very technical to say that it does not refer to it. Moreover, the use of the word "discharge" is not common in referring to an assignment of a mortgage. The defendant

is entitled to protection as a good-faith purchaser. Sheldon v. Holmes, 58 Mich. 138, 24 N. W. 795; Ferguson v. Glassford, 68 Mich. 36, 35 N. W. 820; Moran v. Roberge, 84 Mich. 600, 48 N. W. 164. Decree reversed, and bill dismissed as to defendant Bennett. The other justices concurred.

PER CURIAM. Relator claims to be the widow of Warran Bord well, deceased. The probate court determined that she was the widow, and entered an order making an allowance for her support during the settlement of the estate. From this order the heirs appealed to the circuit court. Relator moved to dismiss the appeal, but her motion was denied. She now seeks the writ of mandamus to compel the circuit judge to dismiss. The order is not appealable. The sole basis upon which the heirs seek to maintain the right of appeal is that they deny that she is the widow, and, if she is not the widow, then it is unjust that she receive money from the estate. We have before held that such an order is not appealable. Lorimer v. Donovan, McGrath, Mand. Cas. No. 136. If the alleged widow cannot appeal when the decision is against her, for the same reason the heirs cannot appeal when the decision is in her favor. The determination of the judge

of probate on the question is preliminary, and not res adjudicata. It is only conclusive of the amount of the allowance to be made to the person found by the judge to be the widow. When the estate is to be distributed, the question of heirship will come up for determination. The allowance of temporary alimony in a divorce suit, where the marriage is denied, is not conclusive of the marriage. For the same reason the allowance to one claiming to be the widow is not conclusive as to the marriage. Writ granted.

CITY OF MT. CLEMENS v. MACOMB CIRCUIT JUDGE.

(Supreme Court of Michigan. Jan. 20, 1899.) CONDEMNATION PROCEEDINGS-JURY-STATUTES PARTIAL INVALIDITY.

1. Const. art. 15, § 15; Id. art. 18. § 2, providing that the necessity for taking private property for public use, and the compensation therefor, shall be ascertained by a jury of 12 freeholders of the vicinage, is violated by Pub. Acts 1895, No. 215, c. 25, § 17, which provides that, on appeal to the circuit court in condemnation proceedings by a city incorporated under the act, there shall be a trial de novo by a jury selected from the regular panel, since such jurors may not possess the constitutional qualifications.

2. Pub. Acts 1895, No. 215, c. 25, §§ 1-14, authorize cities incorporated under the act to condemn land for public purposes, and prescribe a method of procedure before a justice of the peace. Section 15 provides for an appeal to the circuit court, where a trial de novo is to be held under section 17, which provides for an unconstitutional jury. Held, that the invalidity of the latter section vitiates the entire chapter.

Application of the city of Mt. Clemens for a writ of mandamus directed to the Macomb circuit judge. Denied.

O. C. Lungerhausen, for relator. E. W. Meddaugh (Geer & Williams and L. C. Stanley, of counsel), for respondent.

LONG, J. The city of Mt. Clemens was reincorporated under Act No. 215, Pub. Acts 1895. Sections 1 to 14, inclusive, of chapter 25 of that act, confer upon cities of the fourth class the right to condemn land for streets and other purposes, and prescribe the method of procedure before a justice of the peace. Proceedings were taken by the city before a justice of the peace to condemn land for street purposes. Among the lands described were certain lands of the Grand Trunk Railway Company of Canada, and the Chicago, Detroit & Canada Grand Trunk Junction Railway Company, extending across the right of way and tracks of such companies. A jury was duly impaneled before the justice as provided by the act, who returned a verdict and finding that it was necessary to take the property for the use and benefit of the public for the proposed public improvement, and awarded the railway companies certain damages, varying from 6 cents upon certain descriptions to $400 upon others. The order of confirmation was thereafter entered by the

justice. The railway companies within the time provided by the act took an appeal to the circuit court. On June 15, 1898, the cause was called for trial. The parties appeared, and, the clerk being directed by the court to call a jury from the regular panel returned for that term, counsel for the railway companies objected to the cause being tried by such panel, for the reasons: (1) That though the jury contemplated by section 17 of the act was the regular panel of jurors selected for the trial of causes in the circuit court, yet such jurors might or might not possess the qualification of jurors required by section 2, art. 18, of the constitution of this state, and that no other or different jury than that provided by the constitution could be called to determine the question of the necessity of taking private property for public use, or determine the just compensation therefor; (2) that section 17 of the act is unconstitutional, in that it does not provide for such a jury. The court below, after the argument of the questions stated, sustained the contention of counsel for the railway companies, and refused to proceed with the cause. Application is now made here by the relator for mandamus to compel the court below to proceed with the hearing of the cause according to the rules and practice of the court.

It is the contention of counsel for relator (1) that, by appealing to the circuit court from a tribunal where the railroad companies had a trial before a constitutional jury, they waived the right to a jury of freeholders, inasmuch as no such jury is provided on appeal, and that the writ should therefore issue, requiring respondent to proceed with the hearing before the regular panel of jurors; (2) that, if the machinery for carrying into effect such appeal be found defective, that portion only of the act should be held unconstitutional, and the proceedings before the justice should stand as final.

Section 15 specifically provides for an appeal from the determination of the jury in justice court. Section 17 provides that: "Upon filing the return of the justice as mentioned in the preceding section [16], the circuit court shall have jurisdiction of the case. The parties may proceed to trial by jury without reference to any term of court upon all questions involved in such proceedings, and the verdict or finding of the jury shall be conclusive. The appeal of one or more persons interested in any judgment of confirmation shall not in any way affect said judgment."

It is apparent from the language of this section that a trial is to be had de novo in the circuit court; that all the questions litigated in the justice court may be again litigated in the circuit court on appeal. The question as to the necessity of taking the lands for the public improvement, as well as the just compensation to be awarded therefor, may be retried on the appeal; so that the inquiry may well be made whether the regular panel of Jurors drawn for a regular term in a circuit

The

court are such jurors as are provided for by the constitution in condemnation proceedings. Section 2, art. 18, of the constitution, provides that: "When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the state, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record as shall be prescribed by law: provided, the foregoing provision shall in no case be construed to apply to the action of commissioners of highways in the official discharge of their duty as highway commissioners." Section 15, art. 15, provides that: "Private property shall not be taken for public improvements in cities and villages without the consent of the owner, unless the compensation therefor shall be first determined by a jury of freeholders and actually paid or secured in the manner provided by law." The jurors provided by the constitution, then, are to be such as are secured from the vicinage, and who are freeholders. jurors returned to the circuit court under the statute (How. Ann. St. §§ 7554, 7555) are to be selected from the assessment rolls, having the qualifications of electors. Such jurors do not necessarily possess the qualifications required of jurors by the constitution in the taking of private property for public uses. In City of Owosso v. Richfield, 80 Mich. 328, 45 N. W. 129, it was expressly held that the provisions of the charter which required jurors to be summoned, who were qualified to serve as jurors in courts of record, to serve in condemnation proceedings, were unconstitutional; and the verdict in that case was reversed, and proceedings quashed. The court was not in error in the present case in refusing to go on with the case before that jury. The statute under consideration makes no provision for the summoning of jurors who would be qualified to serve in such cases in the circuit court. It points out no method for obtaining such a jury. We are therefore of the opinion that the sections of the act providing for the trial of such cases on appeal in the circuit court are unconstitutional, and that such trials cannot be had on appeal. This result is greatly to be regretted, but it is a matter that the legislature alone can remedy.

The contention that the appeal must be dismissed, and the verdict before the justice affirmed, if this result is reached, cannot be sustained. The provisions for appeal are an essential part of the proceedings for the condemnation of land for public uses, and we cannot say that the legislature would have passed that portion of the act providing for such condemnation without giving the parties interested the right of appeal and a trial de novo in the circuit court. It may happen that valuable properties are to be condemned, even to the taking of homesteads. Justices