dismissed the petition without prejudice to another application, when altered circumstances may show that it is warranted. His judgment will therefore be affirmed, with costs. The other justices concurred.

MANISTEE MANUF'G CO. v. COGSWELL et ux.

(Supreme Court of Michigan. Jan. 22, 1895.) BOUNDARIES-ACQUIESCENCE -SURVEY-LOCATION OF SECTION CORNER-EVIDENCE OF ENGINEER.

1. In ejectment it appeared that, while defendant was erecting his building, plaintiff asked him if he was on his own line, and defendant said he was going to have a survey made. Defendant continued with the building without objection from plaintiff, who saw the work going on every day. Five years afterwards plaintiff had the land surveyed, and discovered that defendant's building was on his line, and immediately called defendant's attention to it, and there was then some talk of defendant paying for the part occupied by his building. Held, that it was a question for the jury whether a boundary line was established with defendant's acquiescence.

2. Testimony of a civil engineer that he had taken pains to establish the correctness of a stake designating a section corner; that he knew it to be approximately the location of the original section corner; that he had used the stake so frequently with reference to other surveys that he was perfectly sure of its correctness; and that, if it were not correct, the streets would all be thrown out of line,-is sufficient to warrant the admission of a survey the starting point of which was the stake alluded to, as against an objection that such point had not been located.

Error to circuit court, Manistee county; James B. McMahon, Judge.

Action of ejectment by the Manistee Manufacturing Company against Mason G. Cogswell and wife. Judgment was rendered for defendants, and plaintiff brings error. Reversed.

Dovel & Smith, for appellant. Smurthwaite & Fowler, for appellees.

MONTGOMERY, J. This is an action of ejectment to recover a strip of land 604 feet long and 16 inches wide at one end, and 9 inches wide at the other. The plaintiff's testimony tended to show title to the strip of land in question. The defendant showed ownership of the piece of land adjoining on the south, and claimed that the line between the two properties had become established so that the strip of land in question became parcel of the lot owned by defendant. He also adduced some testimony tending to show an adverse occupancy for the statutory period, but the testimony on this point was not conclusive; and as the circuit judge directed a verdict for the defendant on the ground that there had been a boundary line established between the parties, by an agreement and acquiescence, the question of adverse possession need not be considered at length.

The testimony shows that, some 13 years or more prior to the commencement of

suit, a fence was built as a boundary of defendant's lot, by his predecessor in title. The fence remained until 1883, when it, to gether with the buildings on the premises. burned down. In 1884 defendant bought and built a building inside the former fence line. Plaintiff's manager testified as follows: "Remember when defendant put up his building, in 1883. Remember seeing him build his building. I have no recollections of talking with him about the location of the line. I supposed he expected to build on his own ground. Didn't know anything to the contrary, and did not stop to see or inquire. He told me he was going to have it surveyed. I asked him if he was getting his building on the line, and he said, 'I am going to have a survey of it;' and I suppose he did. Don't remember of seeing the Briley building posts when defendant commenced building. We built a one-story building, about 30 feet long, for a storeroom for moldings and sash, soon after the fire. We didn't know whether it was on the line or not. We built it as close to defendant's building as we could. We didn't have any survey made when we built it. We afterwards sold that building to defendant, and put up a brick building in 1889, as close to defendant's building as we could get. We had the line surveyed, and called Mr. Cogswell's attention to it, and he wanted to buy the land. I told him he would have to move his building. It was when we were getting ready to put in our foundation. He wanted to buy it, provided he could buy it on the installment plan. I consulted some of the board, and they thought we had better not sell it. He did not claim at that time that the company did not own the strip of land. He did not say to me that he thought it would be difficult to find the line, and I did not say to him that I thought so too, because we had had it surveyed, and I supposed the survey correct." Defendant testified: "I erected buildings upon this property. Began to build in May, 1884. I located my building by measuring fifty feet from Mr. Jarvis' corner of the house down towards the mill property. Made further efforts to locate the building by the old stakes that were there. and the old foundation and sills." He was asked, "Did you see Mr. Long about that time?" and answered, "He was standing by me right along from the time I started until I got through, backward and forward, and passed there every day." Question: "When did you first have any conversation with Mr. Long about that line?" Answer: "Well, after he put the brick building up, of course, just before he had the brick building put up. he had a survey, and then he remarked that he thought I was on his ground, and I said: 'Well, I don't know; I don't think I am,' I said. He said: 'I guess we shall have to tax you $100 for that;' and I said: 'I want to know what I am going to pay for if I am going to pay $100. I will have a survey.

and know what I am getting for my $100.''

The question presented is whether the testimony conclusively shows that the parties intended that the line as established by defendant should be treated as the true line. We think not. If the jury had found, as a matter of fact, that the plaintiff intended to assent to the line fixed by defendant's building, there may be enough in the testimony to support such a finding; but this is far from saying that the fact conclusively appears. We have no doubt that defendant has a right to make this defense in a suit at law. Hayes v. Livingston, 34 Mich. 384; Cronin v. Gore, 38 Mich. 381. But mere noninterference with the defendant's occupancy is not enough to constitute a defense until such occupancy has ripened into a title by adverse possession, unless there has been some agreement, express or implied, fixing the line, in which case acquiescence for a less period than 15 years is sufficient; and an acquiescence under circumstances which imply an assent, and which has been followed by a change in the condition of the parties, made on the strength of such acquiescence, is sufficient. Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Mich. 332; Cronin v. Gore, supra; Bird v. Stark, 66 Mich. 654, 33 N. W. 754; Jones v. Pashby, 67 Mich. 459, 35 N. W. 152. As was said in Bird v. Stark: "It is undoubtedly true, under our decisions, that, to make an arrangement less than 15 years old binding, it must have been made with the understanding that it should be so regarded." In the present case there was room for the jury to say that the assent of plaintiff to the line was conditional, and depended upon defendant's establishing the location by a survey; and that, when he saw the building erected, it was upon the understanding that defendant had located the line by an actual survey of the land. We think the question of whether there was such an acquiescence as to estop plaintiff should have been submitted to the jury.

We have not overlooked the defendant's contention that there was no proof offered by the plaintiff to show the true line, the claim being that the surveyor failed to fix definitely the starting point. But we think the testimony of the surveyor Vincent was sufficient to justify the consideration of his testimony by the jury. He testified that he had taken pains to establish the correctness of the stake designating the section corner; that he had used it for many years as a surveyor; and that he knew it to be approximately the location of the original government section corner; and that he had used the corner so frequently with reference to other surveys that he was perfectly sure of its correctness, and, if it were not correct, the street to the north and the street to the west and the lots would all of them be thrown out of line. We think this testimony showed sufficient familiarity with the location of the

stake to justify the inference by the jury that he had correctly located the starting point.

For the error pointed out, the judgment will be reversed, and a new trial ordered. The other justices concurred.

GREEN v. RUSSELL. (Supreme Court of Michigan. Jan. 22, 1895.) WILLS-GRANT OF POWER TO EXECUTOR-AUTHORITY OF ADMINISTRATOR WITH WILL ANNEXED -SALE OF LAND-"SATISFACTORY " TITLE.

1. Testatrix vested in "my executor, hereinafter named," as full power to dispose of her real estate as she had when living. Held, that the power was not a personal one, but that the administrator with the will annexed could execute it, under 2 How. St. § 5840, providing that such administrator shall proceed, in all things, to execute the trust in the same manner that an executor would be required to do.

2. Under a sale of land by an administrator with the will annexed, providing for refunding of the partial payment if the title was not "satisfactory," the purchaser may refuse to complete the purchase, because not satisfied that the administrator had authority to give title under the power given the executor in the will, there being decisions to justify him in refusing to be satisfied with the title he could give.

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by Byron Green against Frank G. Russell to recover money paid on a purchase of land. Judgment for plaintiff. Defendant brings error. Affirmed.

Louisa P. Roberts died testate January 26, 1892. The date of the will is not given in the record. It made many specific bequests, amounting in all to about $15,000. Her property consisted of the house and land where she lived, valued at $25,000. Her personal property was insignificant in amount. The will contained the following provisions, upon which arises the first question in the case: "I direct that all my debts and funeral expenses be paid, as soon as possible after my decease, out of the first moneys that shall come into the hands of my executors from any portion of my estate, real or personal. I do hereby vest in my executor, hereinafter named, full power and authority to dispose of my real estate in fee simple, or for a term of years, or otherwise, in as full and large a manner as I could myself do, if living. desire that the sale of my house shall not be a forced one. I do hereby make and ordain Julian Elisha Winder executor of this, my last will and testament." Mr. Winder declined to accept the executorship, and defendant was appointed administrator with the will annexed. He assumed that he had the same power of alienation, under this will and under the statute, that Mr. Winder would have had. December 11, 1892, he advertised the property for sale. The terms were cash. The right to adjourn sale was reserved. The title was stated to be perfect, and a complete Burton abstract offered. Complainant bid the property in at the sale for $25,000. Two

I

thousand dollars was paid down, and a receipt given for the balance, payable in 30 days. The receipt contained the following: "The said $2,000.00 to be refunded in case the title to said lot is not satisfactory." Plaintiff took the advice of two lawyers of good standing and experience, who advised him that, in their opinion, defendant had no authority, under the will, to convey the title, and offered to take the property if defendant would obtain authority to sell under the order or decree of the probate court. Defendant declined to do this. Plaintiff refused to pay the balance, and instituted this suit to recover the $2,000. The court directed a verdict for plaintiff.

W. C. Harris (C. A. Kent, of counsel), for appellant. John D. Conely, for appellee.

GRANT, J. (after stating the facts). Was the defendant, as administrator with the will annexed, authorized to sell the real estate without an order from the probate court? While there is no express mandate in the will to sell the property, we think it entirely clear that it authorized the sale, and that that sale should be made by the executor. The absolute title in fee was vested in him for that purpose, with as full power to sell as the testatrix herself had when living. She owned no other real estate. She spoke expressly of the sale of this land. While the amount of her personal property at the time of the execution of the will does not appear, yet we think it manifest that she intended that this real estate should and must be sold in order to pay the legacies. The only objection urged against this power is that it was a personal power or trust lodged in Mr. Winder independently of his power as executor. There is nothing in this will to indicate any other or different trust and confidence than must be reposed in every executor chosen by the testator. Nor is there any other duty imposed upon him than that which must exist in every will which names an executor. The sole power conferred was to dispose of the property of the testatrix, pay the expenses of the administration, her debts and funeral expenses, and the legacies. It was necessary to sell all her property to accomplish that purpose. Whatever is left must be distributed among her heirs. He had no discretion reposed in him, and no funds placed in his hands to keep for the benefit of any one. Under these circumstances, the defendant may execute the trust and convey the land in the same manner as the executor named. To hold otherwise would be to negative the provisions of the statute, which expressly provides that such administrator "shall proceed in all things to execute the trust in the same manner as an executor would be required to do." 2 How. St. § 5840. The statute, moreover, expressly provides that the word "executor" shall be construed to include the administrator with the will annexed. The clear weight of authority supports this position. Giberson v. Giberson, 43 N. J. Eq. 116, 10 Atl. 403.

In

a valuable note to that case will be found collected the authorities on this subject. under two heads, viz. those held to confer personal discretion, and those holding that no such discretion was imposed. Under the statute of New York, which is similar in language to our own, it was at first held that this power was personal. Conklin v. Egerton, 21 Wend. 430. The soundness of that decision was early questioned by Chancellor Walworth in Edgerton v. Conklin, 25 Wend. 224. The decision was expressly overruled in Mott v. Ackerman, 92 N. Y. 539. See, also, Venable v. Deposit Co., 74 Md. 187, 21 Atl. 704; Bay v. Posner (Md.) 26 Atl. 1084; Schroeder v. Wilcox (Neb.) 57 N. W. 1031. The language of Mr. Justice Cooley in Vernor v. Coville, 54 Mich. 281, 20 N. W. 75, appears to cover this case. It follows that the court was in error in holding that this was a trust personal to the executor named.

2. Had the plaintiff the right to refuse to carry out the sale for the reason that the title was not satisfactory to him? This cannot now be determined against him upon the ground that this court has decided in this case that the defendant possessed the power to convey. He acted reasonably, and not captiously. A large amount of money and valuable property were involved. The question had not been expressly decided by this court. In Bennett v. Chapin, 77 Mich. 526, 43 N. W. 893, two justices of this court had held that the trust involved in that case was a personal one. It is true that the provisions of that will were different from those of this. But that decision, as well as others, was sufficient to justify him in refusing to be satisfied with the title. He was not obliged to incur the expense or run the risk of a lawsuit to determine the validity of the title to be conveyed. His conduct does not come within that maxim of the law which holds a man to be satisfied with that with which he ought to be satisfied. He acted as any prudent and cautious man would act. He was therefore entitled to rescind the sale, and bring suit to recover his money. Lord v. Stephens, 1 Younge & C. Exch. 223. It is unnecessary to determine the effect of an arbitrary refusal where no doubt exists as to the title. As to this question, we express no opinion. The judgment is affirmed. The other justices concurred.

CITY OF DETROIT et al. v. ELLIS, Atty
Gen.
(Supreme Court of Michigan. Jan. 22, 18950
RES JUDICATA-ACTION BY CITY-INJUNCTION
AGAINST STREET-RAILWAY COMPANY.

A judgment for defendant, rendered by the federal circuit court of appeals, in an action by a city to enjoin the operation of a street-railway company, because the company was operating the road without the consent of the local authorities, is conclusive of the sufficiency of the consent of the local authorities on an application by the city and certain of its citizens for an order

to show cause why the attorney general of the state should not file an application in the nature of a quo warranto to inquire by what right the company maintained its railway in the streets of the city.

Application by the city of Detroit and certain of its citizens for an order to show cause why A. A. Ellis, attorney general, should not file an application in the nature of a quo warranto to inquire by what right the Detroit Citizens' Street-Railway Company maintains its tracks in certain streets of the city. Motion denied.

C. A. Kent and Benton Hanchett, for relators. F. A. Baker, Russel & Campbell, Ashley Pond, Henry M. Duffield, and Sidney T. Miller, for respondent.

MCGRATH, C. J. This is an application for an order to show cause why the attorney general should not file an application in the nature of a quo warranto to inquire by what right the Detroit Citizens' Street-Railway Company claims to exercise, and does exercise, in certain streets of the city of Detroit, the right of maintaining and using streetrailway tracks in said streets. Petitioners allege that in November, 1862, the common council of the city of Detroit passed an ordinance whereby consent was given to one Bushnell and his associates, who were about to organize as a corporation, to lay streetrailway tracks, and to operate a street-railway system in and upon certain streets in the city of Detroit; that afterwards, on the 9th day of May, 1863, said Bushnell and his associates organized into a corporation which, by its articles, was to continue for 30 years, under the name of the Detroit City Railway, which entered into possession of said streets, and built and maintained street-car lines, and exercised all the usual franchises connected therewith; that November 14, 1879, another ordinance was made, adding other provisions to the agreement between the street-railway company and the city, and providing that "the powers and privileges conferred and obligations imposed on the Detroit City Railway Company by the ordinance passed November 24, 1862, and the amendments thereto, are hereby extended and limited to thirty years from this date"; that in 1891 the Detroit Citizens' Street-Railway Company was organized for a period of 30 years, and, soon after its organization, received a conveyance of all the property rights and franchises of said Detroit City Railway Company, and under such conveyance the Detroit Citizens' Street-Railway Company claims the right to operate, and is now using, all the franchises in said streets; that the value of the franchises and rights in said streets occupied and claimed by said Citizens' Street-Railway Company is very great, and that its claims are a great obstacle, as your petitioners are informed and believe, and therefore aver, to the making of the best terms which the city can make for the public

accommodation by the establishment and maintenance of improved street-car lines on said streets, and are therefore injurious to the city and all residents; that, if the claims of said Citizens' Company are declared void, arrangements can readily be made with oth er street-car companies by which the car service can be greatly improved, and either the fares much reduced, or the amount paid to the city be greatly increased, or both; that the said ordinance of 1879, attempting to extend the franchises and rights of said Detroit City Railway 30 years from November 14, 1879, was void after May 9, 1893, because the life of said grantee expired at that time. In 1892 the city of Detroit filed its bill in the circuit court for the county of Wayne, in chancery, against the Detroit City Railway, Detroit Citizens' Railway Company, and others, setting forth at length the matters which are substantially set forth in the petition herein, and praying that defendants might be enjoined from operating street railways in said streets after the 9th day of May, 1893. The said cause was afterwards removed to the circuit court of the United States for the Eastern district of Michigan, in equity, where a decree was finally entered in accordance with the prayer of the bill. City of Detroit v. Detroit City Ry. Co., 60 Fed. 161. Defendants took the case to the court of appeals, where it was heard upon its merits; and in October, 1894, a decree was entered reversing the decree of the circuit court, and dismissing the bill. Id., 64 Fed. 628.

Why must not the question here sought to be raised by quo warranto be regarded as res adjudicata as against the moving parties, the city of Detroit and certain of its citizens? Under its charter, the city of Detroit has the charge and supervision of the streets of that city. It has the power to establish, open, widen, extend, straighten, alter, vacate, and abolish streets; to clean, grade, pave, repair, and improve the same; to protect and prevent incumbering or obstructing highways; to remove incumbrances from such streets; and to control, prescribe, and regulate the manner in which streets within the city shall be used and enjoyed. In the very act containing the grant to the street-railway company, the supervision and control, by cities and other local municipalities, over streets and highways, is recognized, and the exercise of the right granted is made dependent upon the consent of the local entity. street-railway company is operating its system upon the streets of the city of Detroit in the absence of a valid and binding consent granted by the city, the municipality is certainly a proper party, if not the proper party, to take proceedings to enjoin such operation, not only by virtue of its control over the streets, but also because the power to consent involves the authority to prevent. The municipality moves in such case, not as a proprietor, but in its representative capacity, -as the representative of the public,-as the

If a

proper party to complain of the unauthorized use of such streets. The only question in issue is as to the validity of the consent granted.

Counsel for the petitioners say in their brief that "this application is made by the municipal authorities of the city, who are the trustees of the public, for the protection of the interests of the public in the streets." Again they say: "In this case the municipality itself makes the complaint. It is vested with the control of the streets in the interest and for the protection and benefit of the public. It is hindered and prevented from the exercise of such control by the acts of defendant. The bill in the case in the United States court was filed by the same authorities, in precisely the same capacity, and to reach the same result. Can the adjudication, then, be avoided by the simple addition of individual members of the body comprising the beneficiaries? If so there will be no end to the litigation. In the case of Clark v. Wolf, 29 Iowa, 197, cited in Wells on Res Adjudicata (section 136), it was held as to a county-and the same principle would apply to a city-that a judgment against it, or its legal representatives, in a matter of general interest to all the people thereof, as one respecting the levy and collection of a tax, is binding, not only on the official representatives of the county named in the proceeding as defendants, but upon all the citizens there of, though not made parties defendant by name. This must be the true rule as to matters of public concern, when the proper representative of the public has moved or has been made a party to the proceeding. If the authority to consent to the use of its streets be regarded as a delegation of power to the municipality, and the authority over the streets be also considered as a delegation of power to the city, the municipality must be regarded, as is said in Citizens' Horse Ry. Co. v. City of Belleville, 47 Ill. App. 388, as "related to the state as its agent," in so far, at least, as to conclude the state by litigation had in good faith, respecting the subject-matter.

Α

Again, the state has regarded the matter of consent as one of purely local concern. controversy arose between the city of Detroit and the Citizens' Railway Company as to whether the consent of the city had been given in such a manner as to be available to the present company and binding upon the city, and the city appealed to the courts. where the matter has been determined. The only question litigated was whether the consent given survived to the present company. In a proceeding instituted by the municipali ty, a court of competent jurisdiction has determined that matter in favor of the company, and that determination is conclusive upon all parties concerned. The order to show cause must be denied.

LONG, GRANT, and MONTGOMERY, JJ., concurred with MCGRATH, C. J.

HOOKER, J. Without dissenting from the views expressed by my brother, I prefer to concur in the result reached in the case upon other grounds. It is nowhere shown that this proceeding is of concern to the state. Indeed, counsel say that all that is asked is that the attorney general shall permit the use of his name to the relators, thus practically confirming the already obvious fact that the city of Detroit wishes to be allowed to continue a litigation in the name of another which it cannot lawfully do in its own, being foreclosed by an adverse decision from a court of competent jurisdiction in a suit in stituted by itself. It would be anomalous to grant a discretionary writ for such a purpose.

FIRST COMMERCIAL BANK OF PONTIAC v. TALBERT.

(Supreme Court of Michigan. Jan. 22, 1895.) PARTNERSHIP-SUSPENSION OF PAYMENTS-SUBSEQUENT INDORSEMENTS BY PARTNER-WRITTEN AUTHORITY-CONSTRUCTION-STATE BANK-SUC CESSION TO NATIONAL BANK-EFFECT.

1. Defendant was one of a banking firm which suspended payment while indebted to plaintiff on commercial paper. At request of plaintiff's cashier for some writing which would hold defendant on renewals, defendant wrote: "I hereby authorize L. M. [the other member of the firm] to use my name as one of the firm of L. M. & Co., as indorsers on paper sent you for renewals." Held, that the instrument gave authority to use the firm name.

2. Under 3 How. Ann. St. § 3208b6, authorizing the reorganization of a national bank as a state bank, and providing that "all assets of said dissolved national bank shall, by act of law, be vested in and become the property of such state bank," etc., where a national bank is reorganized into a state bank, which takes all its paper, assumes all its liabilities, and continues the same board of directors, the state bank retains the identity of the national bank so that it may enforce a written authority held by such bank for the indorsement of commercial paper.

3. An authority given by one member of a suspended banking firm to another member to use the firm name on renewals of its notes held by another bank should not be construed to limit its use to renewals of the particular notes in the possession of such other bank, but to continued renewals until the paper is paid.

Error to circuit county, Saginaw county; Eugene Wilber, Judge.

Action by the First Commercial Bank of Pontiac against James Talbert on a promissory note. Judgment for defendant, and plaintiff brings error. Reversed.

Weadock & Purcell (A. C. Baldwin, of counsel), for appellant. Humphrey & Grant, for appellee.

MONTGOMERY, J. In 1884, Leroy Moore & Co., composed of Leroy Moore and defendant James Talbert, were engaged in the banking business at Greenville, Mich., and in June of that year closed their doors. At this time the First National Bank of Pontiac held