Answer. No, sir; there was no such understanding that I ever heard of. I was present when they were written and signed, and I never heard of any such arrangement being made." Here plaintiff's counsel left the witness without further inquiry. On redirect he was allowed to state what the understanding was at the time the notes were made, which he testified was that two of the notes were to be placed in the hands of Joseph Nugent, another son, with instructions to investigate the father's matters in Ohio, and if anything was found owing by him there to pay it, and to use the balance to defray the mother's funeral expenses and erect a monu ment. This, we think, was entirely proper. The question of plaintiff's counsel implied a claim on his part that the notes were not to be enforced against Daniel unless such indebtedness was discovered; and to meet such claim what took place at the inception of the notes as to their use was perfectly legitimate. Errors are also claimed in the instructions of the court to the jury in three particulars : First, that they were allowed, if they found as a fact that the price the plaintiff was to pay Daniel for the property was grossly inadequate to the real value, to consider such fact as bearing upon the good faith of the transfer. Second, that they might also consider the evidence of the transfer having been kept secret from the mother as also having a bearing upon the same question. Third, that if they found the fact to be that there was actually a purpose to remove the property beyond the reach of creditors, it would have a bearing upon the motive of the transaction. It is argued that there was no evidence upon which to base the first two instructions, and as to the third that the word "remove" meant a manual transportation of the property, and there was no evidence that there was any such removal. We are satisfied that these instructions were justified by the testimony in the case. The word "remove," in the sense in which it was used by the court, evidently meant the plac ing or putting of the property out of the reach of the creditors by this pretended transfer, and the jury must have so understood it. In that view of the meaning of the word, the evidence warranted this portion of the charge. The errors assigned seem to us to be trivial and without merit. The judgment below must be affirmed, with costs of both courts. The other Justices concurred. JACOB L. BROWN AND EUGENE L. BROWN V. EMMETT COON, FREDERICK G. RUSSELL, HESSIE COON AND MARIETTA COON. Replevin-Bill of sale as security-Demand of possession or payment of debt necessary before bringing suit. Where a bill of sale has been executed as security for existing indebtedness, and to secure future advances and filed in the town clerk's office, replevin will not lie by the owner of the property, without demand or payment of the debt. Error to Lake. (Judkins, J.) Argued January 29, 1886. Decided February 3, 1886. Replevin. Plaintiffs bring error. Affirmed. The facts are stated in the opinion. John Giberson and C. M. Beardsley, for appellants. Wing & Samuels, for defendants. CHAMPLIN, J. Replevin for a steam-engine and boiler, a yoke of oxen, and other personal property. In February and April, 1884, plaintiffs gave to defendants bills of sale of the property replevied, to secure an existing indebtedness and future advances. These bills of sale were filed with the township clerk. Defendants took possession of the property under these bills of sale in June, 1884. The plaintiffs brought replevin, without making previous demand save of a portion, or paying the indebtedness which the bills of sale were given to secure. The jury returned a verdict for the defendants. We have examined the bill of exceptions and the assignments of errors, and have duly considered the plaintiffs' brief. We find no error in the record, and the judgment is affirmed. The other Justices concurred. JOHN W. LAMB AND WILLIAM H. LAMB V. THE CONSTANTINE HYDRAULIC Co. Lease of water power, construed. Complainants were the owners of a flouring mill at Constantine, Michigan, operated by water power furnished them under a lease from defendant, for a term of ninety-nine years at an annual rental of five dollars per horse power for the first seven years, at the expiration of which time they were to pay "an annual rental, the same as asked of other parties renting, not to exceed, however, the sum of twenty dollars per horse power per year." At the expiration of the seven years, defendant notified complainants "that the rental for the ensuing five years had been fixed at ten dollars per horse power, that being the price now asked of other parties desiring to rent for a term of five years." At this time defendant had only one other lessee of water power whose rental was the same as complainants. Held, in a suit by complainants to establish their rights under the lease and determine how much they are legally obliged to pay as water rent, "that the purchase of the land and erection of the flouring mill, involving a large outlay, and the long term for which the water power was leased, preclude the idea that it was the intention of the parties that the lease should terminate at the end of seven years, in case no other parties were then renting of defendant; hence the agreement cannot be construed as conditional upon the fact that the defendant should, at the expiration of the seven years, be renting water power to other parties." Held, further, as the proper construction of the lease, "that if at the end of the seven years the circumstances and facts upon which the rental was to be then fixed did not exist, but everything remained in the same state as when the lease was made, the original rental 59 597 117 622 117 625 should continue until the rule contemplated by the parties, as evidenced by the lease, should come into existence and form a new basis upon which to determine the amount to be paid. Appeal from St. Joseph. (Pealer, J.) Argued January 14, 1886. Decided February 10, 1886. Bill filed to construe a lease. Complainants appeal. Decree below modified and one entered in Supreme Court according to opinion. The facts are stated in the opinion. David Knox, Jr. and Dallas Boudeman, for complain ants. H. H. Riley and Howard & Roos, for defendant: CHAMPLIN, J. The complainants are the owners of a certain flouring mill at Constantine, Michigan, operated by water-power. The defendant is a corporation owning a water-power at Constantine, and is known as the Constantine Hydraulic Company. A portion of its power is used by the complainants in operating their mill. The company was incorporated under a special act of the Legislature approved March 25, 1867. It afterwards erected a dam across St. Joseph river, and built a system of races on both sides thereof, the work being completed in 1873. The facts preceding the filing of the bill, briefly stated, are as follows: In 1877 the real estate upon which is situated the mill now owned by complainants was owned by Jonathan Lantz and Sarah S. Foreman, and in contemplation of building the flouring mill above mentioned the last named parties obtained from the defendant a lease of fifty horse-power of water, to be used in the operation of their proposed flouring mill, the period of said lease being ninety-nine years; and the agreement on the part of Lantz & Foreman was that they would pay for said power "an annual rent of two hundred and fifty dollars per year for the first seven years, and after the expiration of that time, and from the first of March, A. D. 1884, the par ties of the second part (said Lantz & Foreman) do hereby agree to pay an annual rental, the same as asked of other parties renting, not to exceed, however, the sum of twenty dollars per horse-power per year, said rent to be paid semiannually on the first days of July and January each year." This lease provided that no transfer should be made by second parties in said lease without the written assent of the president and secretary of the company. After it was made Lantz & Foreman assigned one-third interest therein to Henry Brown; and afterwards, April 26, 1877, Sarah S. Foreman assigned the balance of her interest to Jonathan Lantz, and soon after this Lantz & Brown proceeded to erect the flouring mill above referred to, and commenced the operation of it with the power furnished by defendant company under said lease. In April, 1878, Lantz & Brown executed a mortgage on their mill property, which was afterwards foreclosed and the property bought in by the Farmers' National Bank of Constantine, which sold same to complainants in April, 1881; and at the time complainants so purchased they received from said bank the lease above mentioned, although no formal written assignment was made to them at that time. Complainants, however, continued to pay the rent to defendant, and the rent was duly accepted and receipts given until the end of the seven years mentioned in the lease; and before this suit was commenced complainants obtained assignments in writing from Lantz & Brown. On February 27, 1884, defendant wrote a letter to complainants, stating that the time for which they had leased the water-power at five dollars per horse-power would expire on March 1, 1884, and that it would be necessary to fix on a price for the future; and afterwards, on March 11, 1884, notified complainants that at a meeting of the defendant corporation, held on that day, it was moved and voted that the secretary notify complainants that the defendant had "fixed the price for water under their lease from the first day of March, 1884, until the first day of March, 1889, at ten dollars per horse-power, that being the price now asked of other parties desiring to rent for a term of five years.” |