the spring of 1856, Edward embarked in a mercantile enterprise at Milwaukee, and, anticipating possible failure, executed in April, 1856, the deed to James; that said deed was not recorded until September 29, 1856; that said James had no knowledge of the execution or recording of said deed until the same was sent by mail to him at New York, nor was there any understanding between James and Edward as to the execution of said deed; that, on the same day upon which said deed to James was recorded, another deed of other property from Edward to another brother was also recorded, and about a year afterwards the other property was reconveyed to Edward, but the deed reconveying was not recorded until January 22, 1858, on which day another deed ruuning from Edward and wife of the same property to one French was also recorded; that Edward C. Gallup died August 28, 1877; that, four or five days before his death, Arthur L. Canfield, one of the defendants, was employed by Edward C. Gallup to go to Grand Rapids, where James Gallup then resided, adjust the matter of the indebtedness of Edward to James, and procure a deed of the 20 acres from him; that said Canfield did go to Grand Rapids, did adjust the indebted. ness, and on the 24th day of August, 1877, procured a deed from James Gallup to Elizabeth K. Gallup, and, returning to Mt. Clemens, reported to Edward and exhibited to him the deed; that the indebt. edness from Edward to James was settled by the payment of $850, the balance of which was sent to James after the death of Edward, as appeared from the following receipt signed by James, and sent to Arthur L. Canfield: "Office of James Gallup. Grand Rapids, Mich., Sept. 6th, 1877. Received of Mrs. Elizabeth K. Gallup, of Mt. Clemens, a draft on New York for three hundred and fifty dollars, it being the balance of eight hundred and fifty dollars for a quitclaim deed to her, bearing date August 24th, 1877. JAMES GALLUP." That after the return of Arthur L. Canfield from Grand Rapids, and before the death of Edward C. Gallup, the said Canfield, at Edward's suggestion, prepared, and the said Edward C. and Elizabeth K. Gallup executed and delivered to Martha K. Gallup, a deed of other property in the township of Lennox, then owned by the said Edward C., and consisting of about 50 acres of land; that, after the death of Edward, Elizabeth K. continued to reside upon said property until the time of her death, and Martha K., the daughter, resided with her continuously, till some time in 1882, and was with her more or less afterwards, until the time of the death of Martha K.; that Elizabeth K. Gallup in her life-time platted said property into lots, and sold and conveyed away several of said lots, and gave away others; that Martha K. was fully cognizant of the platting of said property, and of the sales and conveyances, and gifts made by her mother, and during her life-time said Martha K. fully recognized her mother's ownership in said property, and did not claim to own or to have any interest in said property;

that, at the time that Edward C. sent said Canfield to Grand Rapids, he, the said Edward C., was fully conscious of approaching death, and his mind continued to be clear up to the very last day of his life; that in conversation with one Van Epps, who was an intimate friend, the said Edward C. talked with said Van Epps about his approaching death, told him about the situation of his property, and the transaction between himself and James; whereupon Van Epps suggested the making of a will, but said Edward C. told Van Epps that Canfield had gone or was going to Grand Rapids to arrange the matter with James, and that he (Ed. ward C.) had made arrangements for the distribution of his property, and that a will would not be necessary.

Arthur L. Canfield was sworn for defendants, and complainants contend that, he being a nephew of Elizabeth K., his testimony was inadmissible under the statute. We have deemed it unnecessary to consider the testimony of Arthur L. Canfield, and it is therefore unnecessary to determine the question as to its admissibility. There is no testimony tending to show fraud on the part of Arthur L. Canfield, and none tending to show collusion between said Canfield and Elizabeth K. Gallup. Canfield was sent to Grand Rapids by Edward C. Gallup to adjust the account with James, and to procure a deed of this property from James. He did adjust the matter, and he procured the deed in question, and, independently of the testimony of said Canfield, it is shown that he returned to Mt. Clemens, made a report, and exhibited to Edward C. Gallup the deed to Elizabeth, and, in the absence of any showing that he disobeyed instructions, or of collusion with Elizabeth, it must be presumed that he acted in good faith, and in accordance with his instructions. The witness Van Epps testified that he was present at the interview between Edward and Canfield, upon the latter's return from Grand Rapids; that he heard Canfield say that he had procured the papers he went for; that he had the papers there; that Gallup saw them, expressed himself as satisfi d, and seemed to be greatly relieved, because he was afraid he was going to die before Canfield's return; he seemed very anxious for him, and called for him almost every hour. Under these circumstances, it will not be presumed, either that Edward C. Gallup was ignorant of what had been done by his agent, or that his agent acted fraudulently, or in collusion with Elizabeth K. Gallup. In the light of this very deed, and the conveyance to his daughter, it is very clear what Gallup referred to when he told Van Epps that it was unnecessary for him to make a will.

The contention of complainants is that the interest of James in said property was a mortgage interest; that Elizabeth took no greater estate than that held by James; that the debt has been paid by the estate of Edward, and Martha's heirs are entitled to take. Whatever interest James had at the time of the conveyance to Eliz abeth, the legal title was in him. By the conveyance to Elizabeth, the legal title

than he could do, and, more than that, "he was not hired to drive teams;" that he was told that it did not make any difference what he was hired to do there, he had got to do whatever he was told to do; that thereupon he took the load of flour to the eastern part of the city, and went down Woodbridge street on his way to the freight sheds, and when between Eighth and Tenth streets the steam from a passing locomotive frightened the horse, and it began to rear, when plaintiff jumped from the truck, intending to take the horse by the head, but broke one of the smaller bones of his leg in jumping; that the horse did not run away, but one of the by-standers took it by the head. Plaintiff was laid up for some months, and brings this suit for injuries received, loss of time, etc. It appeared from plaintiff's own testimony that there were a number of railroad tracks in the vicinity of the place of the injury, and that the track upon which the engine, the steam from which frightened the horse, was moving, was a spur track running parallel with Woodbridge street; that this engine was engaged in moving a train of freightcars, and plaintiff was driving west, and within five feet of the train of cars, while the train was moving east, and when the horse reached the engine the escape of steam caused the horse to jump. The court directed a verdict for the defendant, and plaintiff appeals. Irrespective of the question of the liability of the defendant as employer under such circumstances, the plaintiff was guilty of such contributory negligence as will defeat a recovery. He knew the character of the horse, and drove him to within five feet of a moving locomotive, from which steam was escaping. It is a matter of common knowledge that steam from a locomotive will frighten a gentle horse at close range. He says he did not see the engine, but he saw the rest of the train. He must have known that it was being moved by the locomotive, and it was his duty, under the circumstances, to have seen both engine and cars. The judgment is affirmed, with costs to defendant. The other justices concurred.

REILLY V. BROWN.

(Supreme Court of Michigan. July 28, 1891.) MORTGAGES-ABSOLUTE CONVEYANCE EVIDENCE.

1. The conveyance of lands worth $6,000, by an old man intellectually feeble and unable to read or write, to a woman with whom he boarded and in whom he reposed great confidence, at a time when he was in need of money by reason of being under a guardianship, will be declared a mortgage; and a reconveyance will be ordered when the evidence is clear that he made the conveyance merely to enable the grantee to obtain for him a loan of $3,000, and that he paid her $200 for obtaining it.

2. Evidence as to the mental capacity of the grantor was relevant to show the relations of the parties and the nature of the transaction.

Appeal from circuit court, Wayne county, in chancery; GEORGE S. HOSmer, Judge.

Action to have a deed declared a mortgage by Francis Reilly against Mary A. Brown. Judgment for plaintiff. Defendant appeals. Affirmed.

John H. McDonald and Frank B. Leland, for appellant. Corliss, Andrus & Leete, for appellee.

CHAMPLIN, C. J. The bill of complaint In this case was filed in March, 1890, and alleges: (1) That complainant owned, for many years prior to June 18, 1889, lots 6 and 7, in block A of the Cass farm, in the city of Detroit. (2) That complainant, by reason of the appointment of a special guardian over him, whereby his money and property were tied up, was in need of money, and, in order to secure the same, made a deed of said premises to said defendant. (3) That said deed was made for the sole purpose of securing a loan upon said premises; that no consideration was paid therefor, and it was given under an express agreement with defendant that she would hold the title merely for the purpose of obtaining the loan, and would reconvey the same to complainant at any time he desired. (4) That defendant and her husband went with complainant, and secured a loan of $3.000, by mortgage to Michigan Fire & Marine Insurance Company, for which complainant paid defendant $200, $100 to defendant for personal services, and $100 for her attorney. (5) That subsequently complainant demanded of defendant a reconveyance of the premises to him, subject to mortgage, according to agreement; but defendant refused, and fraudulently claimed title, and had taken proceedings to secure possession and remove complainant's tenant. (6) That defendant was wholly irrespon sible, without property, and was endeavoring to fraudulently deprive complainant of said premises by proceedings to secure possession and transfer of title, etc. (7) Complainant prays deed may be declared a mortgage, and that the same may be canceled upon payment of mortgage by complainant. Defendant filed answer admitting transfer and mortgage, but denying the agreement for a reconveyance, and claiming a bona fide purchase of premises. The defendant insists that much irrelevant testimony was introduced bearing upon the mental capacity of the complainant. We think such testimony was proper and relevant, as bearing upon the relations of the parties, and the true nature of the contract entered into between them We have read the testimony very carefully, and we must say not without a feeling of indignation at the manner in which this old man has been first cajoled and then swindled out of his money by some of those who have undertaken to befriend him. He commenced life as a common laborer. By his frugality, diligence, and thrift in his youth and maturer manhood, he accumulated handsome property. He is not able to read or write anything but his name. Because of old age, his intellect has become enfeebled, and he is suspicious of his children, and has become possessed of the idea that some one, in some way, is seeking to get his property away from him, and without cause he has endeavored to secrete it, so that this imaginary or real person cannot find it. And he has conveyed the title first to one person, and

a

then to another, until finally he consummated the transaction to defendant. The pretense that she gave value for the property is not sustained by the proofs. She claims that she bargained for it for $3,000, but this money that she claims to have paid was obtained by the mortgage to the bank, and we are satisfied from the proofs that the property was worth at least $6,000. When they applied for the loan, they represented the land, without the building, to be worth $6,000, and the building $1,500, and that it rented for $45 a month. This was before any deed was executed, and is contained in the application to the bank for a loan dated June 10, 1889, signed "Mary A. Brown, per H. L. Brown. (H. L. Brown is the husband of the defendant.) It appears from the deed offered in evidence that it bears date the 1st day of May, 1889, but it will be noticed that it is not acknowledged until the 18th day of June, 1889, the same day the mortgage bears date. Wedeem it unnecessary to recite at any length whatever the testimony introduced in the cause. From the consideration of the whole testimony, we are entirely satisfied that the decree of the circuit court was correct, and that it ought to be affirmed. We may further add, from a careful consideration of the testimony, in view of the age and mental condition of the complainant, we are of the opinion that it is needful that a guardian should be appointed to protect him from disposing of his property without adequate consideration, and from consequent want in his old age. The testimony in this case is ample to show that he is incompetent to manage his property. The decree of the circuit court is affirmed, with costs of both courts. The other justices concurred.

BASSETT V. DURFEE, Judge. (Supreme Court of Michigan. July 28, 1891.) DOWER-ELECTION BY WIDOW'S GUARDIAN.

An administrator filed a petition praying that an order be entered nunc pro tunc confirming the acts of his decedent's guardian in electing to take under the statute for his ward, instead of under the will of her husband. The probate court made a finding that "said guardian had declared in open court that he would elect for his ward to take under the statute instead of the will," and that such election was made and filed with the knowledge and consent of the court. Held, that the finding was a sufficient record to show that such election was made, and has the same legal effect as if the record of the election had been made on the day of filing.

Petition of John Bassett, administrator of the estate of Mary Andrews, for mandamus to Edgar O. Durfee, probate judge of Wayne county. Petition denied.

Conely, Maybury & Lucking, (A. H. Wilkinson, of counsel,) for relator. Sidney T. Miller, (John H. Bissell, of counsel,) for respondent.

CHAMPLIN, C. J. Stephen Andrews died July 26, 1889, leaving an estate to be administered in the county of Wayne, valued at $17,255.65, of which $13,855.65 is personal property. He left him surviving a wife named Mary Andrews, who had been incompetent mentally and sick for four

years before his death. She had been under guardianship on his petition, and so remained until her death, which took place December 7, 1890. They had no chil. dren. He left a will providing that she should first be cared for out of her own estate; then, if anything was needed, out of his estate; then all personal property to go to certain relatives of his. Her estate in the hands of her guardian amounted to $3,200. She was 83 years old at the time the will was made, sick, infirm, and utterly incompetent. Had Stephen Andrews died intestate, she would have been entitled under the statute to about $7,000 of his personal estate, but, a will existing, it was necessary for her to make an election if she desired to take under the statute. How. St. §§ 5824, 5825. She was incompetent personally to make the election. During the life-time of Stephen Andrews he petitioned the probate court for the appointment of a guardian over his wife, Mary Andrews, and upon such petition Lawrence W. Simmons was appointed such guardian. Andrews also named Lawrence W. Simmons as executor of his last will, which was probated September 3, 1889, and he, as such guardian, acting in the matter of the estate of Mary Andrews, did on the 13th day of November, 1889, file an election in the matter of the estate of Stephen Andrews, deceased, as follows: "State of Michigan, county of Wayne-ss. In the matter of the estate of Stephen Andrews, deceased. To Edgar O. Durfee, judge of probate for said county: I, Lawrence W. Simmons, the guardian of Mary Andrews, a mentally incompetent person, and the widow of said deceased, do hereby, in her behalf, waive the provisions made for her in and by the last will and testament of said deceased, and elect for her to take her share of the estate of said deceased provided by statute. Dated November 13th, 1889. LAWRENCE W. SIMMONS, Guardian for Mary Andrews." And thereupon the same was filed upon the same day, in the said court, in the matter of the estate of said Stephen Andrews, deceased. After the expiration of a year from the probate of the will, it was claimed that this election was of no effect; that the act of election is personal, and can be exercised by no one where the widow is incompetent; and, on the application made by the widow through her guardian to distribute the estate, the court so held, and refused to award any portion to the widow or her representa tives. This order of denial was made December 1, 1889. The widow died December 7, 1889. An appeal has been taken from this denial by the widow's representatives to the circuit court. The probate court has made a formal order of distribution, dated January 25, 1890, and from this order the administrator of Mary Andrews has appealed to the circuit court.

In February, 1891, the administrator of Mary Andrews petitioned the probate court for an order to be entered in Stephen Andrews' estate nunc pro tunc as of November 13, 1889, confirming and allowing the election which Mary Andrews' guardian had tried to make. A hearing was had upon this petition, and it was denied

by the court by the following findings of facts and order made thereon, viz.: "State of Michigan, County of Wayne-ss.: At a session of the probate court for said county of Wayne, held at the probate office in the city of Detroit on the seventeenth day of March, in the year of our Lord one thousand eight hundred and ninetyone. Present, Edgar O. Durfee, judge of probate. In the matter of the estate of Mary Andrews, a mentally incompetent person. John Bassett, administrator of the estate of said Mary Andrews, now deceased, having petitioned this court for an order ratifying, confirming, and approving the act of Lawrence W. Simmons, guardian of said Mary Andrews, for and in behalf of his said ward, waiving the provision made for her in the last will of her late husband, Stephen Andrews, and electing to take such share of his estate as the statutes of this state provide in cases of such waiver and election, and said petition having been heard and submitted on the 12th of March instant, A. H. Wilkinson and Alfred Lucking appearing for said petitioner, Sidney Miller appearing for certain residuary legatees of said Stephen Andrews in opposition thereto, and said Lawrence W. Simmons appearing in person, the court finds that on the 13th day of November, 1889, said guardian asked the court what he should do as such guardian in the matter of electing for her to take under said will, or under the stat ute; that he then made known to the court the value of the estate of said Stephen Andrews, and the age of said widow, and the value of her estate; and that the terms of said will, and the fact that said guardian was also the executor of said will, were then considered, and discussed by the court and said guardian; that the court advised said guardian that he, as guardian, should act as though not such executor, and should as guardian do as he would were he such widow, and possessed of mental capacity to act in the premises; that, receiving such advice, said guardian declared in open court that he would elect for his said ward to take under the statute, and such election was then drawn by the register of this court, and signed by said guardian, and filed; that such election by said guardian, and the drafting thereof by the register, were made with the knowledge and consent of this court, but were not so made by its order and direction. Considering these findings, this court refuses to make the order prayed for, and said petition is hereby denied. EDGAR O. DURFEE, Judge of Probate.

the merits of the controversy, as to whether the election made by the guardian was valid and effective at this time, nor shall we direct the judge of probate to enter an order nunc pro tunc as prayed for in said petition. We think the findings made by the probate judge, March 17, 1891, upon which he denied the petition, (which findings and order are above set forth,) is a sufficient record showing that the petition filed by the guardian was so made and filed with the knowledge and consent of the probate court, and that it has the same legal effect as if such record was made at the time such election was filed. Consequently the mandamus will be denied, without costs. The other justices concurred.

MAINS V. WHITING.

(Supreme Court of Michigan. July 28, 1891.) SLANDER-WORDS ACTIONABLE PER SE.

The words, "You are the dirty sewer through which all the slums of this embezzlement have flowed," and "if that twenty dollars had been turned over to you or to V., [the person charged with the embezzlement,] the company would never have seen twenty cents of it," spoken in a court-room, of an attorney, while he was defending one charged with the embezzlement, are actionable per se.

Error to circuit court, Calhoun county; FRANK A. HOOKER, Judge.

Action by Charles R. Mains against Horace H. Whiting for slander. Judgment for defendant. Plaintiff brings error. Reversed.

George II. Southworth, for appellant. Herbert E. Winsor, for appellee.

CHAMPLIN, C. J. The plaintiff brought suit against the defendant for verbal slander. The original declaration set out the words declared to be defamatory, as follows: "You are the dirty sewer through which all the slums of this embezzlement have flowed;" and again, “You are the dirty sewer through which all the slums of this embezzlement have been forced;" and again, "If that twenty dollars had been turned over to you or to Van Wagner, the company would never have seen twenty cents of it." It is not necessary to set out in detail the terms of the origi nal declaration, for the reason that the defendant demurred, and within the 10 days allowed by rule the plaintiff filed his amended declaration, in which he sets forth that he is an attorney and counselor at law, and solicitor and counselor in chancery, of the state of Michigan, and thereby an officer of all the courts of law and chancery in this state, and is thereby a person holding an office of trust, honor, and profit, and had an office in, and is practicing his said profession in, the county of Calhoun; and setting out in the usual form as to being a good and faithful citizen, etc.; and that he was enabled to and did earn and make for himself large sums of money by means thereof, and was enabled to gain and earn a competence and livelihood in and by his said pro