TENANCY IN COMMON-Continued,
his cotenant, convey by metes and bounds, a specific parcel
of the common estate and thus sever it so as to bind the non-
granting cotenant. Id.
4. But where one cotenant assumes to convey in fee by metes and
bounds a parcel of the common estate, his deed is not void,
but it creates equities in his grantee which will be protected
and enforced so far as is possible without injury to the non-
granting tenant. Id.
5. Such conveyance is good as between the grantor and grantee,
but will not be allowed to injure the rights of the coten-
ant. Id. 88.
6. Nor may the nongranting cotenant disregard the deed of his
granting cotenant and treat it as a nullity, although it pur-
ports to convey a parcel carved out of the estate as an en-
tirety; it imposes on him an obligation to do no act which
would impair the equities created by the conveyance. Id.
7. If dissatisfied with the act of his cotenant, he can at once
commence proceedings in partition, making the individual
grantees of his cotenant parties thereto; and his rights and
the rights of the grantees will be protected as far as possible,
without injury to his interests. Id.
8. Or he may give formal assent to a deed conveying more than
the interest of his cotenant in a portion of the estate, which
would thereby pass to the grantees in accordance with their
deed. Id.
9. By a course of dealing with the remainder of the common es-
tate by which he totally disregards equitable rights therein
created by his cotenant's deed, he may be held to have acted
in recognition and ratification of it. Id.
10. Where one of two tenants in common of the mineral rights
under land, conveyed the surface, of which he was sole
owner by warranty deed, not excepting any mineral rights,
and the cotenant, subsequently, with knowledge of the equi-
ties of the grantees under his deed, effected a partition of a
large and valuable portion of the remaining estate which
they held in common, by a lease for a long term of years, in
which both tenants joined, and under which enormous
quantities of the ore underlying the surface of such remain-
ing estate were removed, their joint action ratified the deeds
of the cotenant by so treating the remainder of the tenancy
in common as to injure the equities which the deeds created,
and which, except for the partition, could have been enforced
against the grantor's share of the estate. Id. 89.
11. Since the cotenant indicated by his acts that the unwarranted
deed of the grantor was ratified, no action on the part of the
grantees was necessary to perfect their title, until a claim
was set up to their interest by the successors in interest to
the nongranting cotenant, and they are not chargeable with
laches for failure to take action until such claim was made.
Id.
See PARTITION (1–3).
164 MICH.-49.
TENANTS BY ENTIRETIES-See ESTATES BY ENTIRETIES.
TENDER- See COMPROMISE AND SETTLEMENT (1); INSURANCE;
TAXATION (10).
TESTS-See CONSTITUTIONAL LAW (9).
TIME See APPEAL AND ERROR (3, 4, 16-18); BURGLARY (3);
HOMESTEADS (2).
TITLE See ADVERSE POSSESSION; DEEDS (2); EVIDENCE (7);
GIFTS (6, 10-12); MECHANICS' LIENS (2); MORTGAGES (1).
TITLE, SUFFICIENCY OF-See SPECIFIC PERFORMANCE (1).
TITLE TO PERSONAL PROPERTY-See ESTATES OF DECEDENTS
(1).
TORTS-See WORDS AND PHRASES.
TOWNSHIPS-See APPEAL AND ERROR (10); REPLEVIN (2).
TREES-See ELECTRICITY (1).
TRESPASS-See HIGHWAYS AND STREETS (1, 2).
TRESPASS ON THE CASE-See ABUSE OF PROCESS (1).
1. In an action to recover the cost of repairing defective side-
walks, on a written guaranty, the statement of an account of
the cost of reconstructing various pieces of walk was not re-
ceived in evidence, where it was merely shown to a wit-
ness, who was asked to state the various items appearing
therein having reference to the particular walk, and witness
answered, "the item, $171.18, being the expense of rebuild-
ing the damaged walk that was not good." A. M. Campau
Realty Co. v. Lenhardt, 83.
2. In an action against a village for constructing open ditches
and permitting sewage to collect in them in the vicinity of
plaintiff's home, producing sickness, etc., it was proper to
submit to the jury, on conflicting testimony, the question
whether or not plaintiff's sickness was caused by the neglect
of defendant. Wendt v. Village of Richmond, 173.
3. The court properly refused to charge the jury, as requested by
defendant, that the weight of evidence was so overwhelming
in defendant's favor that the court would be compelled to set
aside a verdict for plaintiff and grant a new trial. Id. 174.
4. Nor did the court err in refusing a request to charge the jury
that the defendant was not chargeable with notice of the
alleged nuisance until after the damage had been suffered.
Id.
5. Held, that the verdict was not against the weight of the evi-
dence. Id.
6. It was not error to refuse a very lengthy statement of defend-
ant's claim, contained in a request to charge, which included
disputed statements of fact and argumentative claims. Id.
7. It was not error to add to a special question submitted to the
jury as to whether or not the death of plaintiff's intestate
was caused by the rolling of a pole from the pile in question,
the additional phrase "which pile had been negligently
piled," where the question was answered "yes;" and the
original question was necessarily answered in the affirmative
by the finding of the jury. Larsen v. Home Telephone Co.,
296.
8. After defendants had offered evidence tending to show that
plaintiff's health was impaired, it was proper to permit
her physician, as bearing on the expectancy of her life, to
testify that in his opinion her condition would not be likely
to shorten her life much. Id.
9. In determining whether or not a verdict should be directed
against a plaintiff, in an action for personal injuries, his evi-
dence must be given its greatest possible probative force.
Putnam v. Detroit United Ry., 342.
10. Objectionable argument of plaintiff's counsel, not ruled upon
by the trial court, and claimed to be in answer to argument
of defendant's attorney, did not constitute reversible error.
Formiller v. Detroit United Ry., 654.
11. A judgment will not be reversed for alleged improper argu-
ment of counsel for plaintiff which the court corrected upon
the objection of defendant's attorney, and which was not
shown to have prejudiced defendant's rights. Rivers v. Bay
City Traction & Electric Co., 697.
12. Instructions to the jury as to the motorman's duty to obey de-
fendant's rules and to use due care, and as to the proximate
cause of the accident, held, to have been as favorable as de-
fendant could require. Id.
13. Omission to charge the jury that it was decedent's duty to stop
the car before going on the track, whatever the length of the
board platform might have been, and that the defendant was
not negligent in maintaining the walk in the manner it
adopted, was not reversible error, in the absence of requests
so to instruct the jury. Id.
See ADVERSE POSSESSION (3); AMENDMENTS; APPEAL AND
ERROR (1, 2, 7, 12, 13, 23); CARRIERS (8); CRIMINAL LAW (5,
11, 15, 17); DAMAGES (10); DEPOSITIONS; HUSBAND AND
WIFE (3, 4); WORK AND LABOR.
TRUSTEE'S DUTY—See Trusts (5).
1 Trustees under a will which bequeaths the sum of $5,000 in
trust for the benefit of a missionary society, are entitled to
receive cash from the executors of the estate. Michigan
Home Missionary Society v. Corning, 395.
2. A will which transfers such sum in trust to be kept invested,
and which directs the payment of the income to the bene-
ficiary annually, contemplates a permanent investment. Id.
3. Where the trustees gave a receipt to themselves as executors
under the will for an unsecured note of $5,000, taken in their
capacity of executors in renewal of a note that their testa-
trix had accepted, without security, in her lifetime, and where
the last renewal had not expired at the time the executors
filed their final account and were discharged, they must be
held to have contemplated receiving the note as trustees in
satisfaction of the legacy and to stand as they would if they
had deliberately chosen to accept from a solvent estate a
personal note, instead of money. Id. 396.
4. By directing in her will that the trustees use their best skill
and discretion in investing the trust fund, the testatrix did
not enlarge their powers or discretion; strictly construed,
the direction imposed a duty to exercise more than ordinary
care. Id.
5. A trustee must show the utmost good faith in his management
of the trust.
6. And he must exercise the degree of care and diligence which a
man of ordinary prudence would exercise in the manage-
ment of his own affairs. Id.
7. It is not such prudence to invest the funds in unsecured notes
of an individual or partnership. Id.
8. By entering an order closing the estate of the testatrix and as-
signing to the trustees, with their consent, an unsecured
note obtained by renewing a loan made by deceased, the
probate court did not construe the will, or approve the in-
vestment of the executors. Id.
9. The burden rests upon a trustee to prove acquiescence of the
beneficiary in their acceptance of unsecured notes as an in-
vestment. Id. 397.
10. And evidence that accounts were filed with the probate court
but not heard or allowed, and that interest on the investment
was paid to an unauthorized person, does not show acqui-
escence, with knowledge of the beneficiary. Id.
11. In a suit by stockholders and bondholders of an electric rail-
way to enforce an alleged trust agreement, whereby one of
the defendants, a creditor and bondholder of the road, agreed
by parol to bid in the property on foreclosure sale for the
benefit of complainants, a decree holding the evidence insuffi-
cient to establish_the_trust, under conflicting testimony, is
affirmed on appeal. Sullivan v. Applebaum, 432.
See EXECUTORS AND ADMINISTRATORS (4); GIFTS (5); PART-
NERSHIP (5); RAILROADS (4).
ULTRA VIRES See CORPORATIONS;
UNDUE INFLUENCE-See QUIETING TITLE; WILLS.
UNFAIR COMPETITION-See INJUNCTION (1, 2).
UNITED STATES-See COLLEGES AND UNIVERSITIES (2).
UNITY OF INTEREST-See TENANCY IN COMMON (1).
USE BY DONOR-See GIFTS (7, 12).
VALIDITY OF CONTRACT See COLLEGES AND UNIVERSITIES;
DRUGGISTS (2); MUNICIPAL CORPORATIONS (7, 10, 13); PUBLIC
OFFICERS (1).
VALIDITY OF TAX DEED-See: TAXATION (6).
VARIANCE-See CARRIERS (6).
VENDOR AND PURCHASER-See BROKERS (1, 2); FORECLOSURE
(2); MORTGAGES (1, 2); SALES (2); SPECIFIC PERFORMANCE (1, 2).
VERDICT-See CRIMINAL LAW (8).
VERIFICATION—See MUNICIPAL CORPORATIONS (15).
VILLAGES-See CONTRACTS (4); MUNICIPAL CORPORATIONS (16,
17); TRIAL (2).
VOID CONTRACTS-See COLLEGES AND UNIVERSITIES; DRUGGISTS
(2); MUNICIPAL CORPORATIONS (7, 10); PUBLIC OFFICERS (1).
WAIVER - See APPEAL AND ERROR (6); CRIMINAL Law (5);
HOMESTEADS (2); MUNICIPAL CORPORATIONS (15).
WARNING AND INSTRUCTING SERVANTS-See MASTER AND
SERVANT (1–4, 13).
WARRANT-See CRIMINAL LAW (14); REPLEVIN (2).
WATERS AND WATERCOURSES -
BLE WATERS.
WEIGHT OF EVIDENCE-See TRIAL (3, 5, 9).
1. Undue influence may be proved by other than direct testimony
that it has been exerted; and circumstances disclosed by the
will itself and the manner of procuring it to be made may
raise the presumption that undue influence has been exerted.
In re Du Bois' Estate, 8.
2. But where no such circumstances were disclosed by the evi-
dence, the question was properly withdrawn from the consid-
eration of the jury. Id.
See ADVERSE POSSESSION (2, 3); DEEDS (3); EQUITY (2); Evi-
DENCE (1, 7); TRUSTS (1-4, 8).
1. In a suit to obtain an accounting of securities given by a dece-
dent to defendant, in which complainant claimed rights by
virtue of a prior gift from deceased, his father, testimony of
both parties relating to matters equally within the knowl
edge of deceased was incompetent. Shepard v. Shepard, 183.
2. In a suit against the devisee and estate of a deceased partner,
by a surviving member of the firm, to enforce an equitable in-
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