sale. The language in the present case is far more comprehensive. Keys had acknowledged himself indebted to the firm, and had given it a note and mortgage. This was one of the assets of the copartnership. By the arrangement set out in the bill, the partnership was dissolved. Keys ceased to be a member, and transferred to the remaining partners his right, title, and interest in all the assets, which included his own note and mortgage. Under the allegations, all title in him passed to complainants, and lodged in them the power to proceed to enforce the collection, as though the mortgage had been given by a stranger to the firm. Partners may deal with each other as individuals, and, when they have so done, a suit at law to enforce the contract is applicable. Carpenter v. Greenop, 74 Mich. 664 (4 L. R. A. 241, 16 Am. St. Rep. 662); Smith v. Kemp, 92 Mich. 357. This is a suit in equity, and if Keys claimed payment, or that under the arrangement it was necessary for a partnership accounting in order to determine the amount due upon his note and mortgage, he could file an answer in the nature of a cross-bill. Bane, as a subsequent purchaser or lienholder, has a right to redeem, and is also entitled to have the amount due upon the mortgage determined. The parties are not in a court of law, but in equity, where all their rights can be protected. 2. Under the allegations of the bill, Bane is a subsequent lienholder, and, under the statute, is a proper party defendant. The case of Dickerson v. Uhl, 71 Mich. 398, has no application, because there the claim of the defendants antedated the mortgage which was in process of foreclosure. In the present case Bane's lien is subsequent in date, and his right of priority must be determined by the fact of actual notice of the existence of the mortgage. The statute providing for foreclosure suits contemplates the settlement of just such suits. The decree is affirmed, and the case remanded, with leave to the defendant to answer in accordance with the rules and practices of the court. The other Justices concurred. GRANT v. CITY OF DETROIT.' PAVING CONTRACT-CONSTRUCTION-CAR TRACKS. A contract providing for paving a street “40 feet wide, less car tracks, 15 feet," requires the contractor, as a matter of law, to pave the space under a flange on the outside of the rails. Error to Wayne; Frazer, J. Submitted November 23, 1898. Decided December 13, 1898. Assumpsit by James Grant against the city of Detroit for work and labor. From a judgment for plaintiff, defendant brings error. Reversed. Plaintiff entered into two contracts with defendant to pave certain streets with cedar blocks on concrete. The streets were traversed by double street-car tracks. The contract did not include these tracks or the space between them. This space had been previously paved. Each contract involving the same question, we will refer to one only. The contract provided for grading and paving the street "with cedar blocks on concrete foundation, 40 feet wide, less car tracks, 15 feet," for $5,080.22. The rails had flanges at the top and bottom, leaving a space on the outside of the rail, hollowed out about 5 inches in depth, and extending about 14 inches towards the body of the rail. The engineer testified, under objection and exception, that, in making his estimate, he did not "include anything for tamping, for filling in under the outer flange of the railway flange," but that he took the extreme width from the top of the rails. When plaintiff commenced work, he insisted that his contract did not include this space; that it was not included in the estimate made by the engineer; and that Mr. Guthard, one of the board of public works, 'Rehearing denied May 23, 1899. who supervised the work, told him that the space must be filled, and, if it was not provided for, the engineer would give him an estimate for it. He did the work, and the city refused payment, whereupon plaintiff instituted this suit, and recovered a verdict of $175. Charles Flowers and Arthur Webster, for appellant. Louis C. Wurzer, for appellee. GRANT, C. J. (after stating the facts). We are of the opinion that there is no doubt about the construction to be placed upon this contract. It seems unreasonable to suppose that the parties were making a contract leaving this small space unfilled, or that either could have so understood it. There is nothing in the contract, specifications, or estimate to indicate the exclusion of this space. The paving could not have been complete without it. Plaintiff saw the street before entering into the contract, and accepted the estimates of the engineer. The estimates and measurements were binding, in the absence of fraud or mutual mistake. There is no claim of the former and no proof of the latter. It follows that the court was in error in submitting the construction of this contract to the jury. It was a question for the court, and a verdict should have been directed for the defendant. Judgment reversed, and no new trial ordered. The other Justices concurred. SPAULDING v. O'CONNOR. 1. TAX SALES-AFFIDAVIT OF PUBLICATION-SUFFICIENCY. 2. SAME. In such case, where the copy attached consists of a single newspaper clipping, in which the order precedes the petition, it will be presumed that the publication was made in the same order. 3. SAME-DECREE-EVIDENCE. The entry of a tax decree in the chancery record, with the name of the circuit judge attached, countersigned by the register, and the date of filing appended, is sufficient evidence that a decree was duly made and filed, although no decree is found in the files of the court, nor any entry thereof upon the calendar. 4. SAME SETTING ASIDE SALE-GROUNDS FOR. Under section 70 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), providing that the practice with reference to setting aside sales shall be the same, so far as applicable, as in cases of mortgage foreclosure, but that no sale shall be set aside after confirmation except where the taxes were paid or the land was exempt from taxation, a sale will not be set aside after confirmation, either on petition or bill of review, except for one of the reasons specified, or (under Benedict v. Auditor General, 104 Mich. 269) for defects going to the juris diction. Appeal from Monroe; Kinne, J. Submitted October 21, 1898. Decided December 13, 1898. Bill by Dewitt C. Spaulding and Clarence A. Lightner against William O'Connor and Roscoe D. Dix, auditor general, to review a tax sale. From a decree setting aside the sale on terms, all parties appeal. Reversed. Keena & Lightner (John H. Goff and Willis Baldwin, of counsel), for complainants. C. H. Rose, for defendants. HOOKER, J. In 1891, Vahey owned the premises in question, and gave to Spaulding a mortgage upon them. In 1892, Vahey deeded to Bishop, and the land was assessed to him in 1892, and in March of that year he paid the delinquent taxes for 1891. Spaulding foreclosed his mortgage, and received a sheriff's deed in 1894. He ascertained in 1896 that Bishop had not paid the taxes, and that O'Connor claimed to own the land under a tax deed, and he wrote to the auditor general and county treasurer in relation to the same, and paid the amount due for redemption for the year 1893. In May, 1896, Spaulding executed and delivered to Lightner, as security for indebtedness due from him to Keena & Lightner, a warranty deed of the premises. O'Connor refused to accept a tender of $50 for his interest under the tax sale for taxes of 1892, and, the proceedings having been enrolled, Spaulding obtained leave to file a bill of review in January, 1897. With this order this court refused to interfere, and the cause was heard, resulting in a decree setting aside O'Connor's deed, but requiring the payment by complainants to O'Connor of $100 in addition to the amount paid by him for taxes and interest. Both parties have appealed. In support of the decree, counsel urge that there was a want of jurisdiction in the tax proceeding, and that no decree was filed. The first point is based upon the affidavit of publication, which is as follows: "Fred D. Elmer, being duly sworn, says that he is foreman of the Monroe Commercial, a newspaper published and circulated in said county of Monroe, and that a notice of which the annexed printed notice is a true copy has been duly published in said paper once each week for four |
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