added as a condition of redemption, amount- ing the land in controversy to Charles J. | for the year 1897, with the statutory penalty Semer, for a consideration of $1 and other considerations, and also offered a quitclaim deed from Ezekiel De Camp, conveying the land in controversy to Charles J. Semer, for a consideration of $150. The files in the various proceedings involving the tax sales for 1892, 1893, and 1894 were offered in evidence, together with the circuit court journal. For taxes of 1892, sold in 1894, these records showed that court was in session but four days. For taxes of 1893, sold in 1895, these Complainants offered in their bill to rerecords showed that court was only in ses-imburse defendant with the amount expendsion four days besides the day of hearing. ed in redeeming from the De Camp tax title, For taxes of 1894, sold in 1896, the records viz., $150, also with the amount paid John showed that court was in session but four McLaughlin for his tax titles, viz., $5; but days. The tax records were also introduced claim that they should not be required to rein evidence, showing that the land in con- imburse defendant with $89.46, under the troversy was included in the petition, de- theory that it was paid by McLaughlin, and cree, and tax records as four separate and interest, making a total of $142.92. They distinct 40-acre parcels in the several pro- also claim that they should not be required ceedings for taxes of 1892, 1893, and 1894. to pay $61.66 for the McLaughlin title for Certain tax notices were also put in evi- 1897 taxes. dence by complainants. With reference to these notices complainant Closser stated: "Mr. Closser: I will offer those served upon myself, and those served upon Mr. Morrison are like then: For 1892 and 1893, gross amount, $39.60; for 1894, gross amount, $17.80; for 1895, gross amount, $19.03; for 1896, gross amount, $13.03. That is the first notice. For 1897, another notice, shows $5.07 for each forty, and the amount separate. Court: Any description of the county there? Mr. Closser: Yes; on this notice, the county and state are in. In the 1903 tax, the forties are separate, and the amount is $6.61 for each forty. The one served on myself was filed February 25, 1909, and the one served on Morrison filed February 10, 1909. I offer these for the purpose of showing that no valid notice has been served on which the time has expired, which has cut off the rights of the complainants. Court: When was the bill filed? Mr. Closser: The bill was filed March 3, 1909." * * * The circuit judge held that the various decrees for the sales for taxes of 1892, 1893, and 1894 were void, for the reason that they were prematurely entered; the court not being in session the requisite five days after the first day of the term, as required by statute. There having been no evidence offered, however, in support of the charge of the bill of complaint showing the invalidity of the taxes for those years, the court held that, in accordance with the maxim that he who seeks equity must do equity, and this being a bill of complaint to quiet title, the complainants should be required to repay these taxes as a condition of relief-citing Croskery v. Busch, 116 Mich. at page 289, 74 N. W. 464. It is contended, however, by complainants that since the defendant's grantor paid to McLaughlin only $5 for a quitclaim deed of his tax titles, that is all she is entitled to recover in any event, and that, furthermore, there was no evidence in the case showing the amount that was actually paid by McLaughlin. We are of the opinion that, since it must be held to be admitted by the pleadings that McLaughlin only received, and Semer only paid, $5 for the tax titles, defendant is equitably entitled to no more; her title having failed, as correctly held by the circuit judge. On the 4th day of February, 1898, McLaughlin served a tax notice on Morrison, then the owner, to redeem within six months, and such redemption not having taken place, and after the expiration of the six months, McLaughlin entered into possession and he and, afterwards, his grantee, Semer, held such possession until Semer's death, May 3, As to the tax title for 1897, it does not 1907. This notice was void in that the state appear that the title was invalid, and the and county in which the land was situated bill of complaint does not allege its invaliddid not appear therein. Tucker v. Van Win-ity nor the invalidity of the tax, but alleges kle, 142 Mich. 210, 105 N. W. 607. The court held and decreed: "That the complainants should pay the defendant the taxes for the years 1892 to 1896 inclusive, paid by her grantor. John McLaughlin, amounting to $89.46, with interest thereon at 5 per cent. from October 11, 1897, the date of payment, to July 24, 1909, the date of the decree, amounting to $142.92; he also held that the complainants should pay the tax the fact to be that: "Said land after the The title of defendant did not fail as to the tax deed for the taxes of 1897. The sale is treated as valid in the bill of complaint. and the ground assigned for relief against the tax deed is that it was the duty of defendant's grantor to pay the taxes, which the circuit judge properly held to be incorrect. for taxes of 1897, 1898, and 1899 were mere- | maxim above referred to will be enforced. ly payments of said taxes, and that he ac- Croskery v. Busch, supra. quired no further title to said land by reason of his neglect to pay said taxes, and then letting them go to sale and then buying them in." And again: "That the sales for taxes of 1897, 1898, 1899, 1900, and 1901, together with the deeds issued pursuant thereto, ought to be set aside so far as the deeds purport to convey any title, and decreed to be payments of the respective taxes." And again, in the prayer for relief: “(3) That the various tax deeds running to John McLaughlin for taxes of 1897, 1898, and 1899 be decreed to be evidence of payment of said taxes only, and not of title." If the bill of complaint could be construed to attack the validity of the deed, the burden would be upon the complainants to prove the averment of the bill. Where a party seeks to avoid a tax deed by direct proceedings for that purpose, it is for him to substantiate the charge of its invalidity; but where the holder of the tax deed seeks to enforce it, he must prove its validity, and the deed itself will not be prima facie evidence thereof. Taylor v. Deveaux, 100 Mich. 581, 59 N. W. 250; McKinnon v. Meston, 104 Mich. 642, 62 N. W. 1014; Dawson v. Peter, 119 Mich. 274, 77 N. W. 997; Morse v. Aud. Gen., 143 Mich. 610, 107 N. W. 317. The decree, as modified by this opinion, It was the contention of complainants, as stated in their bill, that defendant McLaugh lin having gone into possession of the land in August, 1898, it was his duty to pay these taxes of 1897. The court held, however, that the taxes of 1897 being a lien upon the land when McLaughlin went into possession, there was no reason why he might not purchase and hold title for that year. The bill alleges that the land was assessed to McLaughlin after he went into possession, is affirmed. which was in August, 1898. We are therefore justified in inferring that the taxes for 1897 were assessed against plaintiff Morrison, whose duty it was to pay them. The defendant's grantors were trespassers, and were therefore entitled to no compensation for improvements made or taxes paid while in wrongful possession of the property, but must content themselves with such benefits as they obtained from the land during their occupancy. Corrigan v. Hinkley, 125 Mich. 125, 83 N. W. 1020; Taylor v. Roniger, 147 Mich. 99, 110 N. W. 503; Cook Land, etc., Co. v. McDonald, 155 Mich. 175, 118 N. W. 959. PEOPLE v. TRINE. (Supreme Court of Michigan. Dec. 22, 1910.) 1. BURGLARY (§ 41*)-PROSECUTION — SUFFICIENCY OF EVIDENCE-CORPUS DELICTI. Testimony tending to show the breaking and entering of a store at night, and the stealing of property therefrom, established prima facie the corpus delicti of burglary, so as to make evidence admissible to connect accused with the crime. [Ed. Note. For other cases, see Burglary, Dec. Dig. § 41.*] 2. CRIMINAL LAW ( 741*)-PROSECUTIONS— JURY QUESTIONS-CORPUS DELICTI. Whether the corpus delicti is established by the evidence is usually for the jury. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1705; Dec. Dig. § 741.*] 3. CRIMINAL LAW (§ 563*) — PROSECUTIONS — SUFFICIENCY OF EVIDENCE - CORPUS DE McLaughlin, however, owed no duty either to the state or to Morrison to pay the 1897 tax. His tax title was void, and the notice based thereon was void. He had no lien to protect when he entered into possession, and we see no good reason why he was not at liberty to purchase the state's title, based up-yond a reasonable doubt before evidence is adThe corpus delicti need not be proved bemissible tending to connect accused with the offense. on an assessment made before he took possession. The tax sale was valid as to this assessment for 1897, the deed was valid, and a valid notice to redeem was served upon defendants. We are therefore of the opinion that the court's decree was correct as to this item. The title of defendant having failed as to the tax titles for 1892, 1893, and 1894, the payments must be treated as voluntary, and not recoverable by direct proceedings for that purpose. Croskery v. Busch, 116 Mich. 288, 74 N. W. 464; Corrigan v. Hinkley, 125 Mich. 125, 83 N. W. 1020; Bateson v. Detroit, 143 Mich. 582, 106 N. W. 1104. When, however, the holders of the original title seek to vacate the tax deeds, the equitable LICTI. - [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1269; Dec. Dig. § 563.*] 4. BURGLARY (§ 45*) - PROSECUTIONS - EVIDENCE QUESTION FOR JURY. In a prosecution for breaking and entering a store at night and taking goods therefrom, evidence held sufficient to go to the jury on the question whether accused was the offender. [Ed. Note.-For other cases, see Burglary, Dec. Dig. § 45.*] 5. BURGLARY (§ 34*)—PROSECUTIONS-ADMIS SION OF EVIDENCE. In a prosecution for breaking and entering a store at night and taking goods therefrom. testimony was admissible that, when clothing taken from the store was found in accused's possession, he also had a suit case and other articles similar to those in the store at the time 4 of the burglary, which were not charged to have [Ed. Note. For other cases, see Burglary, 6. CRIMINAL LAW (§§ 351, 412*)-PROSECU- In a prosecution for burglarizing a store 7. CRIMINAL LAW (§ 736*)-JURY QUESTIONMOTIVE OF CONFESSION. A deputy sheriff, in whose custody accused was after his arrest for burglarizing a store and taking clothing, etc., testified that he told accused that he would like to get at the bottom of the thing, and that the best thing accused could do was to tell the truth, so that if he was innocent they would know it; during which conversation accused exclaimed that he must have been crazy and did not know why he cut out the labels on certain garments which were on them when they were found in accused's possession, which garments were claimed to be those taken from the store. Held that, if accused's statements whether they were made through any expectawere incriminating, tion of leniency, justified by anything the officer said, was for the jury. [Ed. Note. For other cases, Law, Dec. Dig. § 736.*] see Criminal 8. CRIMINAL LAW (§ 393*)-ADMISSION OF EVIDENCE-PAPERS TAKEN FROM ACCUSED. A letter written by accused to his brother about a month after the burglary, stating that he was going away and might not see him for a long time, and requesting him not to tell any one, and to take other precautions to keep accused's whereabouts and identity secret, and stating that the writer would otherwise get into trouble, and he did not like to spend five years in jail, was admissible in evidence, though it was obtained by the officers from accused's effects at his boarding house. [Ed. Note.-For other cases, Law, Cent. Dig. §§ 871-874; Dec. Dig. § 393.*] see Criminal 9. WITNESSES (§ 62*)-COMPETENCY-WIFE OF ACCUSED NECESSITY OF ACCUSED'S CON SENT. It was error for the state to call accused's wife to the stand as a witness against him without first securing his consent; the statute prohibiting testimony by a wife against a husband without his consent. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 177; Dec. Dig. § 62;* Trial, Cent. Dig. § 106.] 10. CRIMINAL LAW (§ 1168*)-APPEAL-HARMLESS ERROR-EVIDENCE. Error in calling accused's wife to testify as a witness against him without first securing his consent, contrary to the statute, thereby compelling him to assert his nonconsent to her testifying, was prejudicial and reversible. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1168.*] (Mich. VAY, BROOKE, and BLAIR, JJ. anagh, Pros. Atty., for the People. E. J. HOOKER, J. the prosecutor in this case tended to prove The testimony offered by that the complainant owned a store in the city of Albion, and that upon the night of December 18th, or thereabouts, after 9 p. m. and before 7 a. m. of the following day, a obtained to the interior of the store, that panel was broken in a rear door, and access ber 19th, also that at that time some money this was discovered about 7 a. m. of Decemister or drawer. was found to be missing from the cash regdiscovered that some articles of clothing A few days later it was later defendant was found in possession of were missing from the store. Some months some clothing claimed to be the missing articles, and he has been convicted of breaking and entering a store, "not adjoining to or occupied as a dwelling," in the nighttime, with burglarious intent. us on exceptions before sentence. The case is before Corpus Delicti. This was There was testimony in the case fairly tending to show the breaking and entering plainant's property in the nighttime. of such a store, and stealing some of comprima facie established the corpus delicti, and, under the most rigid rule, made proof to connect defendant with the transaction admissible. People v. Mindeman, 157 Mich. 120, 121 N. W. 488. It is true that we cannot say that each of these elements proved beyond a reasonable doubt. That is usually a question for the jury, and such proof is not a prerequisite to the introducthe lawbreaker. tion of testimony identifying a defendant as the nighttime was an open question to be Whether this occurred in decided upon the probabilities. It was after after daylight, at any rate before sunrise. dark and the breaking was discovered soon There was enough in the circumstances to warrant the jury in concluding that it occurred before daylight, and such conclusion is therefore final. Evidence of Defendant's Guilt. transaction was sought to be established: The connection of the defendant with the First, by his possession of clothing; second, by his conduct; third, by his declarations. covery in the possession of the clothing was Counsel for defendant contend that his distoo remote in point of time to admit of any Standing Exceptions from Circuit Court, Calhoun presumption of guilt therefrom. County; Walter H. North, Judge. Floyd Trine was convicted of burglary. On exceptions before sentence. Reversed and remanded for new trial. would be very slight evidence that he took alone it is probable that such possession these articles unlawfully on that, or perhaps, any occasion; but in conjunction with Dec. Dig. & Am. Dig. Key No. Series & Rep'r facts and circumstances, such a conclusion We are unable to find in these conversamight be a natural and proper one. There tions anything in the nature of confessions is evidence that he made false statements that he committed the offense, but defendant about the clothes, that he was in Albion that did make statements which, though denials, night, that he had new clothes immediately were, by reason of their falsity, some eviafterwards, that he went away trying to con- dence in corroboration. Among them was the ceal his whereabouts, that he wrote to his statement, "My God, I must have been crazy; brother that if he should tell where he was, I don't know why I cut them out." This reit would get him into trouble, and that the ferred to the labels on the garments at the officers were after him, and he did not want time of the first conversation, but which were to spend five years in jail, and to destroy the removed later. Looking at all of this evienvelope and letter, but to put down the fic- dence, it is very doubtful if the statements titious name and address, so that he would were made from any hope of leniency. No not forget them, and, "for God's sake, don't such promise was made, or expectation jusforget what I said or say a single word to tified, unless inferable from the statement any person, or my life is in danger." If it made by the officer, that it would be better be conceded that this was admissible testi- for him to tell the truth. It was proper to mony, there was a proper case for the jury. submit these questions to the jury, which People v. Carroll, 54 Mich. 334, 20 N. W. 66. the learned trial judge did. People v. Howes, In People v. Wood, 99 Mich. 621, 58 N. W. 81 Mich. 401, 45 N. W. 961; People v. Max639, we held that: "The jury were properly field, 146 Mich. 104, 108 N. W. 1087; People instructed that the possession of stolen prop- v. Flynn, 96 Mich. 279, 55 N. W. 834; People erty found with persons accused of burglary v. Warner, 104 Mich. 339, 62 N. W. 405; Peois not prima facie evidence of the burglary, ple v. Owen, 154 Mich. 574, 118 N. W. 590, but, if they found that whoever broke and en- 21 L. R. A. (N. S.) 520, and cases cited. tered the mill, stole the flour therefrom, then, in whosesoever possession the flour was found shortly after, it would be evidence of larceny, and they would be justified in finding such parties guilty of burglary, as well as of larceny." People v. Hogan, 123 Mich. 233, 81 N. W. 1096. Errors in Admitting Evidence. A letter and envelope proved to be in the handwriting of the defendant were introduced against objection. The letter follows: "Albion, Mich. October 19, 1909. Mr. Leon Trine, Jackson, Mich. Dear Brother: I suppose you thought I was kidding but I am going away today, but don't tell anyone. I'm in a hurry so don't think I could see you and maybe it will be some time before I ever will. Bessie wants you to bring another of those aprons so don't forget it, but this thing I want you to keep secret from everyone if you tell anyone, it will get me into trouble, and I don't like to spend five years in jail. When you go to the post office ask for mail for O. B. Ball, that's my letter, I don't want a person to know where I am, don't forget it now I dare not write to home or some one will know where I am, so just ask for O. B. Ball, general delivery, and it will be all right. Soon you get it then destroy the envelope and give the letter to ma, but be careful and it will be all right. Destroy this (a) Possession of other articles. It was competent to show that at the time defendant was detected in possession of the clothing, he also had a suit case, cap, and other articles similar to those which were in the store at the time of the larceny, although they had not been missed, and notwithstanding the fact that there was no charge that they had heen stolen, and the owner could not testify that they had been taken unlawfully on that or any other occasion. The testimony of defendant's wife's mother that he had such articles soon after the breaking was also competent. The value of such testimony would depend upon other facts and circum-letter so no one will not see it but put down stances. (b) Conduct of defendant. The conduct of a defendant is always admissible, e. g., his falsifications regarding the property found in his possession, or his whereabouts at the time the offense was committed, attempts to abscond, etc., etc. (c) Declarations. The deputy sheriff was allowed to testify to conversations with defendant, at the time of their first interview, and later. At such times he said to defendant that he "would like to get at the bottom of the thing," and he testified that he might have told him on the first occasion, as he did later, at the store and at the jail, that "the best thing he could do was to tell the truth, so that if he was innocent, we would the name so you won't forget it anyway; I said when I leave it would be in a hurry, and I never be in Albion again, for years to come. Maybe I can see you some times, but how or when I don't know so I will close for this time, but for God's sake don't forget what I said, or say a word to a single person or my life is in danger, so good bye. Your Brother, F. T." The envelope is addressed, "Mr. Leon Trine, Jackson, Michigan. General Delivery." If this letter was obtained with other property by the officer at Grand Rapids, from defendant's effects, at his boarding house, as his counsel claim, our attention is not called to the proof of the fact, but this is immaterial. The testimony was admissible under the rule laid down in EMPTION. 193, 58 N. W. 1009, 43 Am. St. Rep. 446, and, 2. HOMESTEAD (§ 77*)-SALE-PROCEEDS-ExPeople v. Campbell, 160 Mich. 112, 125 N. W. 42. We are of the opinion that there was testimony justifying a submission of the case to the jury. The action of the prosecuting officer in calling defendant's wife to the stand as a witness against her husband, without first getting the consent of the defendant, was improper, and may well have prejudiced his case. This was within the criticism of such conduct in the cases of People v. Van Alstine, 57 Mich. 82, 23 N. W. 594, and Laird v. Laird's Estate, 127 Mich. 27, 86 N. W. 436. Thompson v. Ry., 91 Mich. 255, 51 N. W. 995; Johnson v. Detroit, etc., R. Co., 135 Mich. 360, 97 N. W 760, and cases cited; Cavanagh v. Riverside Tp., 136 Mich. 660, 99 N. W. 876; Hillman v. D. U. R., 137 Mich. 184, 100 N. W. 399; Oliver v. Jessup's Estate, 137 Mich. 645, 100 N. W. 900; Spencer v. Simmons, 160 Mich. 292, 125 N. W. 9. Such errors by the prosecuting officer are not easily cured. People v. Treat, 77 Mich. 350, 43 N. W. 983; People v. Nichols, 159 Mich. 355, 124 N. W. 25. The statute prohibits testimony by a wife against a husband without his consent. By calling defendant's wife, he was compelled to assert his nonconsent, which was thereby brought to the attention of the jury, who might naturally draw prejudicial inferences. The conviction is reversed, and the cause remanded for a retrial. MOORE, J., concurred with HOOKER, J. BLAIR, J. I concur in reversing the case upon the ground stated, but am of the opin ion that evidence of the possession of the suit case and other articles not shown to have been the property of the complainant, or to have been taken from the store, was incompetent. Where the proceeds of a sale of 41 acres of land, only 40 acres of which were exempt as a homestead, were paid into court by stipulation in an action between the vendor and a creditor, 40/41 of the fund were exempt from execution. [Ed. Note. For other cases, see Homestead, Dec. Dig. § 77.*] 3. HOMESTEAD (§ 196*)-SELECTION-TIME. Where land comprising a homestead is levied on, the owner need not select his homestead until an appraisal is made and presented to him by the officer making the levy. [Ed. Note.-For other cases, see Homestead, Cent. Dig. § 367; Dec. Dig. § 196.*] 4. HOMESTEAD (§ 193*)-EXEMPTION-WAIVER. Plaintiff did not waive her homestead exemption by failing to claim the same until the proceeds of a sale of such homestead were attached; this being the first opportunity she had after learning that defendant was taking steps to subject such proceeds to the payment of his claim. [Ed. Note. For other cases, see Homestead, Cent. Dig. § 364; Dec. Dig. § 193.*] Appeal from Circuit Court, Livingston County, in Chancery; Selden S. Miner, Judge. Bill by Ella Holley against John F. Redinger and William Horton. Decree for complainant, and defendant Horton appeals. Decree modified and affirmed. Argued before BIRD, C. J., and McALVAY, BROOKE, BLAIR, and STONE, JJ. Shields & Shields, for appellant. Louis E. Howlett, for appellee. MCALVAY and BROOKE, JJ., concurred band was the owner of any other real estate. with BLAIR, J. HOLLEY v. REDINGER et al. (Supreme Court of Michigan. Dec. 22, 1910.) 1. HOMESTEAD (§ 62*)-EXEMPTIONS-AMOUNT. Const. art. 16, § 2, provides that every homestead of not exceeding 40 acres of land and the dwelling house thereon, etc., to be selected by the owner thereof and not included in any town plat, city, or village, shall be exempt from forced sale on execution or any other final process from any court. Comp. Laws 1897, § 10,362, provides that a homestead consisting of any quantity of land not exceeding 40 acres and the dwelling house thereon, etc., and not included in any recorded town plat, etc., shall not be subject to forced sale on execution, etc. Held, that the exemption is limited to 40 acres, and does not cover 41 acres. [Ed. Note.-For other cases, see Homestead, Cent. Dig. § 90; Dec. Dig. § 62.*] The complainant, being desirous of freeing herself from debt, made a contract with defendant Redinger for the sale to him of the premises, subject to the mortgage, for $1,450, $100 to be paid down and the balance to be payable October 1, 1909. Prior to the making of this contract defendant Horton had obtained a judgment against complainant for $120 in justice's court. Subsequent to the making of the contract he garnished the defendant Redinger seeking to satisfy his judgment out of the balance due complainant from the sale of the premises. At this juncture of affairs complainant filed her bill of complaint to stay the proceedings at law and to have the premises declared exempt as a homestead, and the proceeds thereof exempt from legal process. The pleadings were perfected and a hearing had, and the trial court |