torney of record for the prevailing party in both of said cases, accepted from the defendant $12 in full settlement of both judgments, giving his receipt therefor; (5) later said Felker stated to defendant that all matters between them were settled. He afterwards denied to the plaintiff that he had received payment on said judgments, and that they, or either of them, were settled. It was held, as conclusions of law, that the $12 received by Averill was part payment on the judgments, and that there was no consideration for the agreement of settlement, and that plaintiff was entitled to judgment for the balance thereof, with interest, and gave judgment accordingly.

Exceptions were taken to the refusal to find (1) that the judgments were taken by default when defendant was absent from the State; (2) that he made preparations to reopen the cases and set aside the default, and that Felker was duly authorized to and did settle the judgments to avoid litigation. Exception was also taken to the finding that Felker denied to plaintiff that he had received payment upon or had settled the judgments; also to his refusal to find as a conclusion of law that:

"I find that both judgments mentioned in plaintiff's declaration were default judgments, and that steps were being taken to set aside said defaults, and that, to avoid litigation, the parties settled the same, and that same are in law discharged, and that a judgment of no cause of action should be entered in said cause, with costs to the defendant to be taxed."

There was a dispute in the testimony as to the authority of Felker to settle these judgments, and the learned circuit judge refused to find that he had such authority. He also found that there was no valid consideration for the acceptance of $12 in settlement thereof. Both were questions of fact. Defendant could not prevail unless he established the fact that Felker was authorized to settle the case. The court refused to so find, and defendant could not prevail, although it were found that the agreement with Averill was upon a valid consideration. But

the court said it was not. The only consideration claimed is that defendant told Averill that he would rather reopen the case than pay more than $10. In view of the fact that the judgments were then three years old, or thereabouts, the judge might well hesitate to find that such suggestion was any inducement to the settlement, or so considered. He found the contrary, and we think it was not error. Even if it were, the failure of the court to find authority was fatal to the defense. There is no occasion to discuss other questions.

The judgment is affirmed.

MONTGOMERY, OSTRANDER, MOORE, and BROOKE, JJ.,

concurred.

DETROIT UNITED RAILWAY v. LAU.

EQUITY-FIDUCIARY RELATIONS-PROMOTERS OF CORPORATIONS. Defendant's brother, while engaged in obtaining rights of way for the Detroit, Rochester, Romeo & Lake Orion Railway, of which he was a stockholder, secured a land contract to defendant as trustee, of certain land in the village of Oxford, and the greater part of the purchase price was paid by the construction company which built the road. Defendant was also its acting attorney. Complainant subsequently became assignee of the property of the railway company, and completed the road on the default of the construction company. It found that a deed had been taken of the land in question in the name of defendant, although the property had been used continuously by the railway company for its corporate purposes, and the defendant had not claimed personal rights in the property prior to this suit: Held, that a bill to compel a conveyance would lie.

torney of record for the prevailing party in both of said cases, accepted from the defendant $12 in full settlement of both judgments, giving his receipt therefor; (5) later said Felker stated to defendant that all matters between them were settled. He afterwards denied to the plaintiff that he had received payment on said judgments, and that they, or either of them, were settled. It was held, as conclusions of law, that the $12 received by Averill was part payment on the judgments, and that there was no consideration for the agreement of settlement, and that plaintiff was entitled to judgment for the balance thereof, with interest, and gave judgment accordingly.

Exceptions were taken to the refusal to find (1) that the judgments were taken by default when defendant was absent from the State; (2) that he made preparations to reopen the cases and set aside the default, and that Felker was duly authorized to and did settle the judgments to avoid litigation. Exception was also taken to the finding that Felker denied to plaintiff that he had received payment upon or had settled the judgments; also to his refusal to find as a conclusion of law that:

"I find that both judgments mentioned in plaintiff's declaration were default judgments, and that steps were being taken to set aside said defaults, and that, to avoid litigation, the parties settled the same, and that same are in law discharged, and that a judgment of no cause of action should be entered in said cause, with costs to the defendant to be taxed.”

There was a dispute in the testimony as to the authority of Felker to settle these judgments, and the learned circuit judge refused to find that he had such authority. He also found that there was no valid consideration for the acceptance of $12 in settlement thereof. Both were questions of fact. Defendant could not prevail unless he established the fact that Felker was authorized to settle the case. The court refused to so find, and defendant could not prevail, although it were found that the agreement with Averill was upon a valid consideration. But

the court said it was not. The only consideration claimed is that defendant told Averill that he would rather reopen the case than pay more than $10. In view of the fact that the judgments were then three years old, or thereabouts, the judge might well hesitate to find that such suggestion was any inducement to the settlement, or so considered. He found the contrary, and we think it was not error. Even if it were, the failure of the court to find authority was fatal to the defense. There is no occasion to discuss other questions.

The judgment is affirmed.

MONTGOMERY, OSTRANDER, MOORE, and BROOKE, JJ., concurred.

DETROIT UNITED RAILWAY v. LAU.

EQUITY-FIDUCIARY RELATIONS-PROMOTERS OF CORPORATIONS. Defendant's brother, while engaged in obtaining rights of way for the Detroit, Rochester, Romeo & Lake Orion Railway, of which he was a stockholder, secured a land contract to defendant as trustee, of certain land in the village of Oxford, and the greater part of the purchase price was paid by the construction company which built the road. Defendant was also its acting attorney. Complainant subsequently became assignee of the property of the railway company, and completed the road on the default of the construction company. It found that a deed had been taken of the land in question in the name of defendant, although the property had been used continuously by the railway company for its corporate purposes, and the defendant had not claimed personal rights in the property prior to this suit: Held, that a bill to compel a conveyance would lie.

Appeal from Oakland; Smith, J. Submitted April 28, 1909. (Docket No. 101.) Decided July 6, 1909.

Bill by the Detroit United Railway against Harry M. Lau and Belle Lau to compel the conveyance of certain real estate. From a decree for complainant, defendants appeal. Affirmed.

Frank E. Jenkins, for complainant.

George M. Sayles & Harry M. Lau, for defendants.

MOORE, J. The Detroit, Rochester, Romeo & Lake Orion Railway was organized under the laws of the State of Michigan for the construction and equipment of a railway line between the villages of Royal Oak and Oxford, Oakland county, and the village of Romeo, Macomb county, Mich. The Detroit Construction Company, Limited, also organized under the laws of the State of Michigan, had the contract for the construction and equipment of said railway. The Detroit, Lake Orion & Flint Railway, also a Michigan corporation, was organized to construct and equip a railway line between the village of Oxford, Oakland county, and the city of Flint, Genesee county, Mich. This company was duly organized, but never did any business except acquire the title to the right of way between the points for which it was organized to construct and equip a railway.

The building of the road over the right of way of the Detroit, Lake Orion & Flint Railway was carried on through the name of the Detroit, Rochester, Romeo & Lake Orion Railway by the Detroit Construction Company, Limited, as general contractor. John Winter, Oliver H. Lau, and Frank C. Andrews owned all the stock of the Detroit Construction Company, Limited, and were the principal owners of the stock of the Detroit, Rochester, Romeo & Lake Orion Railway. On or about July 27, 1901, a contract to sell the Detroit, Rochester, Romeo & Lake Orion Railway, Detroit, Lake Orion & Flint Railway, and certain other railway properties, to