No other questions call for discussion. The judgment is affirmed.

The other Justices concurred.

ANDRUS v. SCUDDER.

EQUITY-APPEAL-PLEADINGS-UNAUTHORIZED DECREE.

The Supreme Court, upon affirming a decree dismissing a bill praying for the reformation of a contract so as to show a consideration due from complainant less than the amount stated in the contract, and for an injunction against the prosecution of an action at law to recover the amount therein stated, cannot, for the sake of obviating the necessity of further legal proceedings, enter a money decree for defendant, where the pleadings in the injunction suit are not framed to authorize such relief.

Appeal from Wayne; Smith (George W.), J., presiding. Submitted February 7, 1899. Decided July 5,

1899.

Bill by Ward L. Andrus against John Scudder and Frances M. Scudder for the reformation of a contract, an accounting, and to enjoin an action at law. From a decree dismissing the bill, complainant appeals. Affirmed.

On May 1, 1895, complainant executed and delivered to defendant Frances M. Scudder the following agreement:

"For and in consideration of the sum of ten thousand dollars furnished me by Frances M. Scudder, of Detroit, Michigan, the receipt of which is hereby acknowledged, for the purpose of carrying on a wholesale fruit and fancy grocery business at 53, 55, and 57 Jefferson avenue, as Ward L. Andrus & Co., of which firm I am sole partner, I hereby agree to pay said Frances M. Scudder or assigns

at the end of each year ten thirty-fourths of the net profits of said business. The said Frances M. Scudder may withdraw at any time the aforesaid funds so furnished by her by giving sixty days' notice thereof. This agreement shall be in force five years from May 1st, 1895, unless otherwise terminated. It is expressly understood that said Frances M. Scudder shall not in any manner or in any way have any voice, direction, or control in the management of said firm on account of said funds so furnished; and I hereby agree not to personally or otherwise sign or indorse any note, bond, or other obligation not pertaining to the business of said firm, or do any act which would place in jeopardy the money furnished by said Scudder."

A notice of withdrawal was duly served. On February 9, 1897, complainant paid defendant Frances $5,000. He refused to pay the balance, and thereupon she instituted a suit at law against complainant for its recovery. This suit was instituted February 27, 1897. To the declaration filed, defendant, on April 3, 1897, filed a plea of the general issue. The case was set for trial December 2, 1897. On November 17th, defendant, Andrus, amended his plea by giving notice that his signature to the contract was fraudulently obtained by the misrepresentations of plaintiff or her representative as to the contents thereof. On December 1, 1897, complainant filed his bill, setting up the fraud, praying for the reformation of the contract, for an accounting, and an injunction against the prosecution of the suit at law. The two particulars in which a refor mation is asked are that the consideration in the contract should have been $8,000, instead of $10,000, and that Mrs. Scudder should participate in the losses as well as the profits. Proofs were taken in open court, and the bill dismissed.

Corliss, Andrus & Leete (John D. Conely, of counsel), for complainant.

Bowen, Douglas & Whiting, for defendants.

GRANT, C. J. (after stating the facts). Counsel for complainant, in their brief, say that the questions involved

are ones of fact. The sole witnesses to the agreement are the complainant and defendant John Scudder, who acted for his wife, his co-defendant. She personally took no part in the negotiations. The testimony of these two witnesses on every material fact is in direct conflict. Upon the facts, therefore, the result would depend upon the credit the court should give to one or the other. The court below reached the conclusion that complainant "has not been able to establish the fraud by such a preponderance of evidence as entitles himself to relief." We think the circuit judge was in a better position to decide the question of fact than we are. There was nothing unreasonable in the contract. We find nothing in the surrounding circumstances from which we can reasonably infer that complainant has a preponderance of the evidence.

Defendant Frances insists that decree should be entered in this court for the amount due, and thus obviate the necessity of resorting to the continuation of further legal proceedings. The pleadings are not framed to meet any such case. Therefore all we can do is to affirm the decree

dismissing the bill.

Decree affirmed, with costs.

The other Justices concurred.

HUBBARD v. AUDITOR GENERAL.

1. TAXES-VOID SALE-CERTIFICATE OF ERROR-MANDAMUS. Where a void tax deed has been issued, and the original owner applies to the auditor general for a certificate of error, tendering the full amount of the tax, he is entitled to such certificate, and, if the auditor refuses to issue it, mandamus will lie to compel him to do so.

2. SAME- PURCHASE OF STATE TAX LANDS - ACCEPTANCE OF CHECK AS PAYMENT.

The fact that the auditor general sees fit to accept a check in
payment for state tax lands is not a matter of which the
original owner can complain, where the check is afterwards
paid; and in such case the payment will be deemed to have
been made as of the time of the receipt of the check.

3. SAME-INSUFFICIENT DEPOSIT-RIGHTS OF APPLICANT.
An applicant to purchase state tax lands, who deposits an
amount insufficient to cover all of the descriptions applied
for, is not entitled to deeds for the several descriptions in the
order named in his application, where there is nothing to
indicate that he intended to take a part of the lands if he
could not obtain them all.

4. SAME-PAYMENT OF TAX LIENS-Void Deed.

Under section 84 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), requiring a purchaser of state tax lands to pay all taxes remaining a lien thereon at the time of his purchase, one who pays a part of the price to the auditor at the time of making his application to purchase, and the balance on a subsequent day, is bound to pay any tax that has become a lien upon the land in the interim, in default of which the deed issued to him is void.

Mandamus by Frank W. Hubbard and James O. Wallace to compel Roscoe D. Dix, auditor general, to issue a certificate of error. Submitted February 15, 1899. Writ granted July 5, 1899.

The petition alleges that relators are the owners of the S. E. of section 30, township 16 N., range 13 E., being

in the township of Verona, Huron county; that on November 30, 1896, William A. Garner and George F. Brown filed a written application with the respondent for the purchase of six descriptions of land, of which the description above is the first; that at the time said Garner and Brown deposited with the auditor general their personal check for $100, to be applied upon the purchase of said lands; that they were then informed by the auditor general that the total amount due was $176.39; that on December 1, 1896, Brown and Garner sent from Flint to the auditor general a check for $76.39, balance due; upon information, that neither of said checks was cashed by the auditor general until after December 2, 1896; upon like information, that it was not the custom of the auditor general to accept personal checks as cash upon application to purchase state tax lands; that on December 31, 1896, the auditor general wrote Garner and Brown, accounting for the $176.39, and returning to them $35.74, that amount being the excess over the taxes due; that a tax deed was issued to Garner and Brown, dated December 28, 1896, for said lands. The petition further sets up that the taxes for the year 1896 were not included in the purchase, and were not paid by Garner and Brown. On October 28, 1898, relators made application to the respondent to pay or redeem the taxes upon said land, and tendered $166.25 for that purpose, and prayed that a certificate of error be issued against the deed to Garner and Brown. The respondent refused to accept the money or issue the certificate of error, whereupon relators brought this petition for a writ of mandamus to compel such action.

The answer admits the application, the payment of $100 by check drawn upon the Citizens' Commercial Savings Bank of Flint, the receipt of the subsequent check, the issuance of the deed to Garner and Brown, and the refusal to issue the certificate of error. The answer further sets up a receipt for $100 given by the then auditor general, November 30, 1896, in accordance with the application, and avers that said checks became at once, on receipt thereof, part