Appeal from the superior court of Grand Rapids; Stuart, J. Submitted June 16, 1915. (Docket No. 59.) Decided July 21, 1916. Rehearing granted September 27, 1916. Reargued October 27, 1916. Former opinion affirmed December 21, 1916.

Bill by George H. Judd against Peternella Judd and another for the cancellation of certain conveyances, for an accounting, and for other relief. From a decree for complainant, both parties appeal. Affirmed.

Richard C. Goodspeed and Fred P. Geib, for complainant.

Gleason & Lee (M. L. Dunham and Henry E. Chase, of counsel), for defendant.

BIRD, J. While George and Peternella Judd were husband and wife, he deeded to her certain real estate in the city of Grand Rapids. Subsequently, on account of ill health, he went to Florida, and there engaged in business. While there, defendant Peternella sought and obtained a divorce from him in the Grand Rapids courts. In the divorce case no alimony was asked or granted. Later complainant returned to Grand Rapids, and instituted these proceedings, praying for a cancellation of the conveyances, for an injunction restraining her from disposing of the property, and for an accounting of her management of the property. The defendant Ellis, being interested in some of the property which is in question, was made a party. The chancellor after a very full hearing granted complainant a decree for $5,000 in lieu of his interest in the real estate. The decree pleased neither party, and both have appealed. It appears from the record that the Judds were married in January, 1887, and that following this for 20 years they resided in the city of Grand Rapids. They appear to have gotten along rea

sonably well in a domestic and financial way. He appears to have accumulated some means from his own business efforts, and that, added to what he inherited, found him in 1908 worth, as the court finds, about $12,000. This was mostly invested in Grand Rapids real estate. The complainant was afflicted with asthma, and in the early winter of 1908 his malady drove him to seek a milder climate. He went to Florida and found that it agreed with him, and afterwards engaged there in the printing business. The defendant remained in Grand Rapids and looked after the real estate and collected the rents. In January, 1909, complainant found his business in Florida in a precarious condition, owing to differences with his partner, and he was obliged to have money to relieve the situation. He came north and requested defendant Ellis to increase the loan on what was known as the White property from $5,500 to $6,500. This was agreed to by Ellis, but the wife refused to give her consent to the increase of the loan, unless the defendant deeded the property to her. The contract for the purchase of the White property stood in their joint names. The other real estate was owned by them in the same manner. This refusal upon her part caused much discussion between them. They do not agree as to what was said at the time. Complainant's business needs were such, however, that he finally yielded and conveyed to her all of his interest in the real property owned in Grand Rapids. Thereupon the loan was increased on the White property from $5,500 to $6,500, and he returned to the south to take care of his business matters. In November following Peternella filed her bill praying for divorce from complainant, and obtained a pro confesso divorce upon the ground of extreme cruelty.

Defendant divides her argument into the following divisions:

(1) The demurrer to the bill.

(2) If the demurrer be not well taken, must not the case be decided upon the pleadings alone? Had the complainant the right to take testimony?

(3) Laches.

(4) The evidence and motion to strike out.

1. Inasmuch as the demurrer questions the equity of the whole bill, this ground will be considered along with the other questions.

2. Complainant failed to give the statutory notice to take proofs in open court. 3 Comp. Laws, 10188. When the case came on for hearing, objection was made by defendant to the proofs being taken in open court by reason of the failure to give such notice; but the court, after learning what was involved in the suit, ordered the testimony to be taken. Undoubtedly the complainant had forfeited his right to demand an examination of the witnesses in open court by failure to give the notice within the time prescribed, but his failure does not take away from the trial court the power conferred upon him to make the order upon his own initiative. 1 Comp. Laws, § 211 (3 Comp. Laws 1915, § 12034); Circuit Court Rule 25. Several cases are cited by defendant's counsel to show that the trial court had no power to make this order after default of the parties in giving the notice. We do not agree with this construction. The statute opens the way for the parties themselves to demand an examination of their witnesses in open court. The statute also authorizes the rule which gives the court the power to order it upon its own initiative. If we are to say that the court is deprived of this power because the parties have neglected to make the demand, it would render the latter statute and rule of very little force or effect. We think the trial court was entirely within his authority in ordering the testimony to be taken in open court.

3. The doctrine of laches is urged as a reason why complainant should be denied relief. Ordinarily property rights are adjusted in divorce proceedings; but the defendant in her bill for divorce did not ask for any relief in that regard, and no decree was made affecting them. If property rights are not settled in divorce proceedings, they may be later in a separate proceeding. Meldrum v. Meldrum, 15 Colo. 478 (24 Pac. 1083, 11 L. R. A. 65); Thomas v. Thomas, 27 Okl. 784 (109 Pac. 825, 113 Pac. 1058, 35 L. R. A. [N. S.] 124, 133, Am. & Eng. Ann. Cas. 1912C, 713); Hall v. Hall, 9 Or. 452. The record shows no such change in the situation of the parties as could reasonably call for an application of the doctrine of laches. For aught the record shows, the case might as well have been heard when it was as earlier, so far as defendant's equities are concerned.

4. The defendant contends that complainant has not made a case which entitled him to relief; that the testimony shows that complainant made the conveyance with a full understanding of what it meant; and that there was no fraud practiced nor any agreement made, oral or otherwise, which constituted the defendant a trustee of the property for the benefit of their joint use in the future; but that, if there were such an agreement, it was a parol agreement and could not now be enforced by reason of the inhibition of the statute. Section 8835, 3 Comp. Laws (3 Comp. Laws 1915, § 11571). And it is further contended that the testimony brings the case squarely within the following line of authorities of this court, in which the statute referred to has been construed and enforced: Jackson v. Cleveland, 15 Mich. 94, 102 (90 Am. Dec. 266); Palmer v. Sterling, 41 Mich. 218 (2 N. W. 24); Shafter v. Huntington, 53 Mich. 310, 314 (19 N. W. 11); Bulen v. Granger, 56 Mich. 207 (22 N. W. 306);

Tiffany v. Tiffany, 110 Mich. 219 (68 N. W. 127); Chapman v. Chapman, 114 Mich. 144 (65 N. W. 215, 72 N. W. 131); Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461); Wipfler v. Wipfler, 153 Mich. 19 (116 N. W. 544, 16 L. R. A. [N. S.] 941); Waldron v. Merrill, 154 Mich. 203 (117 N. W. 63); Purcell v. Purcell, 162 Mich. 404 (127 N. W. 310); Sherwood v. Davis, 168 Mich. 398 (134 N. W. 463); Halliday v. Basel, 170 Mich. 489 (136 N. W. 354); Longe v. Kinney, 171 Mich. 312 (137 N. W. 119); Crane v. Read, 172 Mich. 642 (138 N. W. 223); Churchill v. Howe, 180 Mich. 150 (146 N. W. 623). Complainant's claim is that he was led to believe by acts and declarations of defendant, at and before the time of the conveyance, that she intended to continue the marriage relation with him; that during the days preceding the making of the conveyance, while he was endeavoring to obtain her consent to the increase of the loan, he suggested to her that in the future he would be obliged to live in the south, and, if she preferred to separate and divide the property, he would consent to it. To this she replied that she never wanted a divorce; that she was perfectly willing to live as they were then living. In that connection, he asserts she said she believed she could make more out of the property than he could; that, if he would convey the premises to her, she would remain in Grand Rapids and care for the property, improve it, and collect the rents, and they would have something to fall back on when they were old. He further states that he relied upon these declarations and promises, and that he would not have conveyed the premises to her if he had known that she intended to get a divorce from him after he returned to the south. He further insists that, while making these declarations, she had in mind to deceive him and to obtain a divorce from him, as she subsequently did, and deprive him of sharing in