passed by the engine; and what might have been gross negligence, if the headlight was not burning, and if no warning had otherwise been given of its approach, would not be if ample and sufficient warning of its presence and approach at the crossing were given by sounding the whistle and ringing the bell, so as to warn all persons approaching the crossing of its presence there. The testimony in the case was conflicting as to whether the headlight was burning, and also as to whether the proper signals were given; so, also, was the testimony as to the rate of speed at which the engine was running. We think that the case should have been submitted to the jury, under all the facts and circumstances, for them to say, under all the testimony in the case, whether or not the defendant was negligent, and whether, also, the plaintiff materially contributed to the injury by his own negligence.

It is urged on behalf of the defendant by its counsel that the second request should have been given, viz.: "The track itself is a warning of danger to those who go upon it, and persons about to cross a railroad track are bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and, if either cannot be rendered available, the obligation to use the other is the stronger to ascertain before attempting to cross it whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly and carelessly upon the track without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence." We think this states the law correctly, under the facts of this case, and the instruction should have been given to the jury.

There was no error in refusing the third and fourth requests of the defendant. The third reads as follows. "The doctrine of comparative negligence, in actions of this kind, as recognized by the courts of some of the other states, is not adopted or recognized by our courts, and therefore cannot be applied to this case, There does not appear to have been any necessity for this request; it was immaterial to the issue.

39

The sixth request is: "If the jury find from the evidence in this case that the engineer of engine No. 25 blew the whistle and rung the bell from the whistling post forty-four rods west of the place where the injury happened, then the plaintiff cannot recover, and your verdict should be for the defendant." The seventh request is: "If the jury find from the evidence in this case that the plaintiff could have discovered engine No. 25 if he had stopped his team, and had looked and listened for it before he attempted to cross the track, then it was his duty to have done so, and, if he failed to do so, he was guilty of contributory negligence, and cannot recover." The eighth request is: "If the jury find that the head-light on the engine was burning, or that the engine made such a noise that the plaintiff could have heard it if he had stopped his team and listened before entering upon the track, then it woud be contributory negligence for the plaintiff to attempt to cross the track without stopping his team, and listening, and your verdict should be for the defendant." The ninth request is: "It was negligence for the plaintiff, under the circumstances disclosed by the proofs in this case, to not have stopped his team before attempting to cross the track, and your verdict should be for the defendant. The tenth request is: Under the proofs and pleadings in the case, your verdict should be for the defendant,-no cause of action."

99

The fifth, sixth, and seventh requests, it is claimed, find support under the fol owing authorities: Railroad Co. v. Miler, 25 Mich. 274; Haas v. Railroad Co., 47 Mich. 401, 11 N. W. Rep. 216; Rhoades v. Railroad Co., 58 Mich. 263, 25 N. W. Rep. 182; Mynning v. Railroad Co., 64 Mich. 93, 31 N. W. Rep. 147; Brady v. Railroad Co., 81 Mich. 616, 45 N W. Rep. 1110; Matta v. Railroad Co., 69 Mich. 113, 37 N. W. Rep. 54; but the facts of this case were such that we do not think that the requests should have been given. There were circumstances which it would have been proper to have called the attention of the jury to in connection with such requests, which would bave modified them as general propositions in order to make them applicable to the facts and circumstances of this case. There was no error, therefore, in refusing to give such requests.

We think that the eighth request to

son that the whole facts and circumstances would be proper to be considered by the jury if there had been no warning of the approaching train required by the statute, and no head-light burning. The jury would then have been called upon to consider whether it would be contributory negligence, in the absence of warning by sound and sight, to have crossed the track without also having stopped his team and listened for the rumbling of the approaching train. The ninth and tenth requests were properly refused, for the reason that we think there was evidence in the case sufficient to go to the jury upon the fifth, sixth, and seventh requests. The judgment will be reversed, and a new trial granted.

pear that it was made upon a lawful consideration or a good consideration in law. As applied to this case, it is contended on behalf of the plaintiff that there was consideration for making that agreement, in this: that Stephen Collar claimed to have an interest in the lands, and went there to settle with Hamblin for that interest. It is not essential, as has been stated on all hands in the argument, that he should have had a legal interest. If he had such an apparent or claimed interest in the lands as, under the circumstances surrounding the parties, was esteemed by them a thing which it was worth while for Hamblin to settle or consider of value, then, I think, it would be a good consideration. Whether that was the case or not the jury must determine from the evi- | dence. It is true that, so far as anything appears here, the sheriff's deed had alienated Stephen's interest in the land as a matter of law, and from what appears before me I think is true. The parties may have not considered that that was so, and, if Stephen claimed an interest, notwithstanding that, in the property, and Hamblin yielded to that claim, and for the purpose of settling it, and avoiding a controversy upon it, agreed to pay him $225 in settlement of that claim, I think that would be a good consideration for the agreement. While the sheriff's deed would, as matter of law, have alienated Stephen's interest in the land, there appears to have been in Sylvester at bis death, not only the interest which was conveyed by virtue of the sheriff's deed, but also such interest, if any, as could be conveyed by Stephen and his wife by quitclaim of the premises. If the parties regarded the interest acquired by both these conveyances, although the sheriff's deed may have conveyed Stephen's interest entirely, and I think it did, if the parties regarded the interest owned by Sylvester at his death, and by his heirs afterwards, as embracing some equitable interest in Stephen, represented by the quitclaim from Stephen and his wife, or, if they regarded the Secor deed, Secor being the execution creditor, as having been procured in the interest of Stephen, those facts and circumstances should be considered with a view of determining whether or not Stephen did have any equitable interest in the fund."

The defendant's counsel, in the course of their cross-examination of Stephen Collar, attempted to show that the conveyance made by Stephen Collar and his wife to Jacob Thorne on the 28th day of December, 1874, was fraudulent as to his creditors. The court, however, refused to permit the attorneys for the defendant to go into such inquiry. We do not think that the court erred in excluding this testimony. The creditors of Stephen Collar are not before the court, or making any complaint of the conveyance by Stephen Collar to Jacob Thorne, and we do not think that the inquiry is material to the issue before the court. It appears in the case that a creditor of Stephen Collar proceeded by attachment against him, and levied upon his interest in the lands in question, and obtained a judgment against him in the state of New York, and levied

upon and sold his interest in said lands at public auction, by which the judgment was fully satisfied, the judgment creditor being Joseph S. Secor. The land was bid off at the sheriff's sale by one Isaac Secor, and in due time he received the sheriff's deed therefor. It appears also that the proceedings in the attachment suit, so far as service upon the defendant, Stephen Collar, was concerned, was a substituted service, no personal service upon the defendant having been acquired in the state of New York, and it was claimed on the part of the defendant in this suit that the sheriff's deed conveyed to Isaac Secor all the interest which the plaintiff, Stephen Collar, had in such land. The deed of the sheriff bears date the 29th day of December, 1870, being prior in time to the deed of Stephen Collar to Jacob Thorne; therefore the defendant in this suit claims that, at the time of the execution of the deed to Thorne, Stephen Collar had no interest whatever to convey, and conveyed nothing whatever by such deed.

and

It appears, further, that Sylvester Collar acquired the interest of Isaac Secor under the sheriff's deed by purchase and conveyance from him to Sylvester dated the 25th day of April, 1877. He also obtained a deed from Thorne and wife dated December 6, 1876. Stephen Collar contends that the court in the state of New York obtained no jurisdiction in the suit, and that the sheriff's deed is invalid, and did not extinguish his title to the land. The circuit judge charged the jury that he was of opinion that the sheriff's deed did extinguish the title of Stephen Collar to the land, but further instructed the jury that, if he insisted that he had a claim upon the land after the sheriff's deed, even after he had conveyed to Thorne and he to Sylvester Collar, such claim would constitute a good consideration for the promise of Hamblin D. Collar to pay him the sum of $225 for such interest.

We held, when the case was here before, that where lands were conveyed under a parol trust to sell and convert into money, and divide the proceeds, and the trust had been so far executed by the trustee as to sell the land, and receive the mouey, and such trust had been recognized by him, an action for money had and received would lie to recover such money by the person entitled thereto. Collar v. Collar, 75 Mich. 414, 42 N. W. Rep. 847. And in Bitely v. Bitely, 48 N. W. Rep. 540, (at the April term of this court,) we held also that parol evidence was admissible to prove that land was conveyed to sell and divide the proceeds among the heirs. In White v. Cleaver, 75 Mich. 17, 42 N. W. Rep. 530, we held that such a trust was not within the provisions of the statute of frauds. Such testimony was admitted upon the trial of this case, but upon this trial it appeared, upon the examination of the plaintiff, that there was a writing having reference to four of the conveyances by the heirs to Sylvester Collar which the plaintiff signed, and that it was sent by Henry to the heirs in Kent county; that this writing was for the purpose of fixing up and to sell the place so as to divide the money with the four heirs, namely, Hamb

lin, Cameron, Mary, and himself. When this fact appeared, such writing was the best evidence. It defined the trust, and all parol evidence respecting the trust, upon which Sylvester obtained the deeds from such heirs, should have been excluded. There was no sufficient showing of the loss of such writing as to permit the introduction of parol evidence of its contents. Such parol evidence, when introduced, was objected to, and, when it appeared later that there existed such writing, such objections became effective. It appears that such writing did not include or provide for all the heirs, but it did include the plaintiff, and measured the rights of those who were parties to it and Sylvester Collar. The plaintiff also testified that at his talk with the defendant on May 18, 1886, he represented these same four heirs, and wanted to settle only for those four interests. It is very important that it should appear what agreement Sylvester had with those four heirs, and the writing is the best evidence of that. The parol testimony tended to show that the trust which Sylvester assumed was not a trust in land, but a trust arising out of the disposition of land conveyed to him for a specific purpose. It was a trust arising out of the confidence reposed in him by the heirs in conveying their interest to him, without any other consideration to them than that he should dispose of the land, and divide the proceeds pro rata among them. The agreement was executory and contemplated action on the part of Sylvester. He was to acquire the interests of all the heirs, and sell and convert the real estate into money, and pay over to each his pro rata share. So far as the agreement relating to the purchase and disposition of real estate rested in parol, it was void under the statute of frauds. Wright v. King, Har. (Mich.) 12; Bernard v. Bougard, Id. 130; Trask v. Green, 9 Mich. 358; Newton v. Sly, 15 Mich. 391; Cobb v. Cook, 49 Mich. 11, 12 N. W. Rep. 891; Pulford v. Morton, 62 Mich. 25, 28 N. W. Rep. 716; Shafter v. Huntington, 53 Mich. 310, 19 N. W. Rep. 11. It was only after Sylvester had proceeded in the execution of the parol agreement, and had obtained title of all the heirs, and converted the real estate into money, that the trust would arise, founded upon equity and good conscience, to pay over the proceeds; and, before such trust could be enforced at law, some new promise must have been made, and his duty to pay over must have been affirmatively recognized before an action could be maintained. Calder v. Moran, 49 Mich. 17, 12 N. W. Rep. 892.

But what becomes of the remedy of the heirs so deeding, if the grantee dies before performance on his part of those provisions which are void by the statute of frands, and before the property is converted into personalty, so that a trust can attach? At such time it is not such a trust as equity will lay hold of, and appoint a new trustee to carry out the parol trusts which are void by the statute of frauds. The most that can be said in such a case is that the parties have volun· tarily conveyed away their interest in the

real estate, and placed it beyond recall. They would have been in the same predicament as if Sylvester Collar, after having obtained the absolute deeds of conveyances from all the heirs, had refused to sell or convey the land, or further perform the parol agreement. The heirs could not have compelled a specific performance, because the parol agreement is void under the statute of frauds. Sylvester Collar died before the parol trust attached, and the rights of the heirs to have a performance died with him. It was said by Mr. Justice CAMPBELL in Buleu v. Granger, 56 Mich. 208, 22 N. W. Rep. 306: "As our statutes have abolished the old doctrine of resulting trusts, a person who deliberately conveys land to a wife or other relative stands in no better condition as to enforcing such a trust than any one else." The plaintiff could not have maintained this action against the heirs of Sylvester Col. lar, even though they had sold the 55 acres for $3,000 and received the money. The land was incumbered by no trust when it descended to them. It does not become subject to any trust in the hands of the purchaser from them, nor does such purchaser owe to the heirs any duty arising out of the original parol agreement between Sylvester and the heirs. But, if there was an express trust evidenced in writing, other considerations obtain, and what the rights and remedies of the parties would be in such a case depends entirely upon the writing; and, until that is produced or established with sufficient certainty, it is impossible to determine whether the present action could be maintained or not. When the case was here before, the opinion was based upon the statement that "in 1880 Sylvester Collar died, not having executed the trust or conveyed said lands, and afterwards the defendant, Hamblin D. Collar, obtained a conveyance of said lands from the heirs of Sylvester Collar, deceased, which included the interest of the plaintiff which had been conveyed to Thorne, and afterwards to Sylvester for the same purpose.

It was also proposed to be shown that the defendant obtained the whole title to this land from the heirs of Sylvester, and that he knew his brother had taken the title to the land for the purpose of thus distributing the proceeds, and that, although he had recognized the rights of all the other heirs, and paid them on the basis of the agreement made with the plaintiff, of May 18, 1886, he had not paid the plaintiff, and refused to recognize his rights in any funds, though he has the funds representing that interest in his hands." Such is not the case disclosed by this record. It is not shown that the defendant acquired conveyances from Sylvester's heirs for the same purpose as Sylvester had obtained deeds from the heirs; nor is it shown that he recognized the rights of all the other heirs to a share of the proceeds of sale of the land. On the contrary, it now appears that the agreement under which Stephen Collar claims an interest through Sylvester was in writing, defining the purposes for which Sylvester received the conveyances entered into between four of the heirs, including the

plaintiff, and it was with reference to these same four heirs that the original promise to pay $225 was made on May 18, 1886. The judgment must be reversed, and a new trial ordered. The other justices concurred.

CRITTENDEN et al. v. CANFIELD et al. (Supreme Court of Michigan. July 28, 1891.) FRAUDULENT CONVEYANCES-GIFTS-INFANTS-ACTION BY NEXT FRIEND.

1. One having an equitable right to a reconveyance of land on payment of a certain sum sent an agent to the holder of the legal title to adjust the indebtedness, and procure a reconveyance to be made to his wife, she paying part of the debt. On the return of the agent with the deed, a conveyance of other land was made by the busband and wife to the only child for the purpose of distributing the estate between wife and child. Held, that the conveyance to the wife was valid as against the heirs of the daughter, there being no fraud or collusion between the wife and agent.

2. Where one has an equitable right to a reconveyance of land, he may relinquish such equity by parol, and direct a reconveyance of the lega. title to be made to his wife as a gift.

3. Where one procured a quitclaim deed to any interest in land which the father as heir of minor children might have, he cannot sue as next friend of the minors to recover the land, at their expense, as he is directly interested in the result of the suit.

Appeal from circuit court, Oakland county, in chancery; JOSEPH B. MOORE, Judge.

Complaint in chancery by Rebecca L. Crittenden and Edward G. Crittenden, by Charles D. Crittenden, their next friend, against Arthur L. Caufield and Frank H. Canfield, trustees, to recover an interest in land as heirs of Martha K. Crittenden, deceased. Decree for defendants. Plaintiffs appeal. Affirmed.

Baldwin, Draper & Jacokes, (A. E. Chadwick, of counsel,) for appellants. Eldredge & Spier and Moore & Canfield, for appellees.

MCGRATH, J. Complainants are the minor children of Martha K. and Frank E. Crittenden. Martha K. Crittenden was the daughter of Edward C. and Elizabeth K. Gallup. Elizabeth K. Gallup was the daughter of Christian Clemens. Edward C. Gallup died August 28, 1877, leaving Elizabeth K. Gallup, his wife, and Martha K. Gallup, an only child, then 26 years of age. Martha married in 1880, and died in 1887, leaving surviving her complainants and Thomas C. Crittenden. Thomas died in October, 1887. Elizabeth K. Gallup died testate, April 5, 1889. By her will executed June 18, 1887, Arthur L. Canfield was made executor, and the property in ques tion was devised to defendants in trust for complainants and said Thomas C. Crittenden. The will provided that the homestead should be conveyed to Rebecca L. Crittenden when she should become of age, and that, when the youngest survivor of her grandchildren should arrive at the age of 21, all of said property then remaining, after deducting the homestead, should be divided between said grandchildren, or the survivors of them; that, in case said Rebecca L. should die before arriving at

the age of 21 years, the homestead should be divided between the survivors; that, in case all of said grandchildren should die without issue before the distribution provided for, the estate then remaining should be distributed between the heirs at law of the testatrix, as though she had died without issue. Christian Clemens died in 1844, leaving, as his sole heirs at law, four daughters,-Harriet, wife of George Lee; Ann, wife of William Canfield; Elizabeth K., wife of Edward C. Gallup; and Louise M. Clemens. In 1841, Christian Clemens, intending thereby to make an ante mortem disposition of his property for the benefit of his daughters, conveyed by deed, to his sons-in-law and Louise M. Clemens, as tenants in common, certain real estate, including the land in question, which contained 20 acres, which is now a part of the city of Mt. Clemens. After the death of Clemens, the said grantees partitioned the property so conveyed, and this 20 acres was assigned to Edward C. Gallup, who with his wife and family occupied it from 1844 until his death. In 1856, Edward C. Gallup and wife gave to his brother, James Gallup, a deed of this 20 acres, and on August 24, 1877, James conveyed the same to Elizabeth K.

The bill claims that the deed to James was a mortgage to secure the payment of an indebtedness due James; that this indebtedness was adjusted four days before the death of Edward C. Gallup; that the deed from James to Elizabeth was not delivered until after the death of Edward, and that Elizabeth, through Arthur L. Canfield, one of the defendants, fraudulently procured the deed to herself, instead of to Edward; that Martha K. was the only heir of Edward C.; that complainants are the legal heirs of Martha K.,-and asks that the conveyance from Edward to James be decreed to be a mortgage: that the same be declared to be fully paid by Edward: that the deed to Elizabeth be declared to be in fraud of complainants' rights; and that the title to the residue of the 20 acres may be decreed to be vested in complainants.

to

The answer sets up that, at the time of the conveyance by Edward to James, Edward was financially embarrassed, and that the object of the conveyance was to protect the property from Edward's creditors; it admits the indebtedness James, but insists that the indebtedness arose some years before the deed of conveyance; that the deed from James to Elizabeth was procured at the instance and express direction of Edward C., and without fraud, and that the same was procured and delivered to Elizabeth before the death of Edward; and that such delivery was made in the presence of, and with full knowledge and by the direction of, Edward; and that at the time of the procurement of said deed the indebtedness to James was adjusted by the payment to him of the sum of $850 out of moneys furnished by Elizabeth.

It must be conceded that, in 1853, Edward became indebted to James in the sum of $2,500; that prior to the 24th day of August, 1877, Edward had paid upon this indebtedness over $2,000; that, in