the following requests as asked by counsel for plaintiff: "(4) If the arrangement was as Mr. Stone stated it to be, and the jury find the fact to be that Mr. Stone was the real purchaser of the property, and that Mr. Stowell was simply Mr. Stone's agent in the matter, still, if they find that Mr. Stone allowed Mr. Stowell to hold himself out to the world as the real owner of the property, and allowed the property to remain in Mr. Stowell's possession, he cannot defend against an innocent purchaser or person who has dealt with Mr. Stowell in good faith, believing the property to have been his, and who had no means of knowing that Mr. Stone had any interest in the property." "(6) If the jury shall find that Stowell purchased the property for Stone without disclosing that fact, and that Stone never asserted any act of ownership over them, and allowed Stowell to assert himself as the true owner, he was bound by his subsequent acts, and in that case you will find for the plaintiff." "(8) Mr. Stone might have protected himself perfectly by taking the property into his possession, or by taking a chattel mortgage on the same, and filing it in the city clerk's office. By the Court. That is true as an abstarct proposition of law. (9) Mr. Stone could not have made a conditional sale to Stowell unless he had the title to the property. If the jury find that the title to the property at the time the sale of the property took place was in the Conservatory of Music, then Stone could not have made a conditional sale to Stowell, and in that case you must find for the plaintiff."

The difficulty with defendant's first request is, it ignores the question of suretyship of Stone upon the note, and the question of waiver of the rights Stone claimed, if what Stone claims is true, by the manner he allowed the vendee to treat and handle the property. There was no doubt but that the plaintiff was a bona fide holder of the mortgage interest, and his lien, if he had any, was in good faith; and the rights of the defendant under a conditional sale to Stowell, such as Stone claimed, should not have been submitted to the jury apart from the circumstances showing or tending to show that such rights, by the conduct and treatment of Stone, had been waived or abandoned; and this the court was asked to do in this request. Stone swears that Stowell used the property, had possession of the room in which it was placed; and Bates says he delivered the property to Stowell when the sale was made. These are facts of much significance, coming from the defendant and his witnesses. The second request of defendant, while true in the abstract, under our recording laws must be taken with some qualifications, and under the facts in this case should not have been given without the qualification. I see no error in refusing these requests as asked. There was no error committed in giving the four requests asked by counsel for plaintiff. Under the circumstances of the case and theories of counsel they were clearly proper and appropriate. There was testimony in the case tending to show that Stowell bought the property of the Conservatory of Music. The plaintiff's testimony tends strongly to show this. There is no question but that the plaintiff's mortgage was duly filed. Four paragraphs of the charge of the court were excepted to by counsel for defendant, which were given upon the court's own motion, and an examination of the same has not disclosed any error which we think should be held suflicient to reverse this judgment, and it must therefore be affirmed.

CHAMPLIN, MORSE, and CAMPBELL, JJ., concurred. LONG, J., did not sit.

CARMICHAEL et al. v. CARMICHAEL et al.

(Supreme Court of Michigan. October 26, 1888.)

1. WILLS-CONTRACT TO MAKE A WILL-FRAUDS, STATUTE OF-PART PERFORMANCE. Where a husband and wife, by oral agreement, bind themselves to make a particular disposition of their real estate by last will and testament, and such con

tract is fully performed on the part of the husband, and the benefits received and accepted by the wife, the agreement is taken out of the statute of frauds, and equity will prevent the wife from violating her part of the contract in fraud of parties interested.1

2. SAME EQUITY-CANCELLATION OF INSTRUMENTS-FRAUD-PARTIES.

Where the wife, after the death of the husband leaving a will according to the agreement, makes a conveyance of the property in violation of said agreement, the beneficiaries under the will agreed to be made by the wife are proper parties complainant, and the wife a proper party defendant, in a suit to set aside such convey

ances.

Appeal from circuit court, Hillsdale county, in chancery; RICHARD A. WATTS, Judge.

A. St. John, (Thomas A. Wilson, of counsel,) for appellees.

MORSE, J. The complainants are two sons and a daughter of Charles Carmichael, Sr., now deceased, and the defendant Ann Carmichael. The defendants Ira Carmichael and Charles Carmichael are brothers of the complainants. Hattie E. Disbrow is a sister. Charles I. Carmichael, known in the record as Charles Ira, is a son of the defendant Ira Carmichael. Charles Carmichael, Sr., in 1858, lived in Wheatland, in the county of Hillsdale, and owned 160 acres of land. In that year the complainant Delos Carmichael was convicted of a state-prison offense. His father was his bail. Delos absconded, with the full consent of all the family. His father settled the bond at an expense of something over $1,000. About this time the father deeded 120 acres of his land to his son Charles, reserving and keeping the title to 40 acres, the homestead, and in his own name. The 120 acres was afterwards deeded back to the father, excepting 40 acres, which at his request was conveyed by Charles to his mother, the defendant Ann Carmichael. Soon afterwards, and up to 1866, different conveyances were made by the father to his children, in which his wife joined. By these deeds Ira received 58 acres; Charles, Jr., 35 acres; and John, 22 acres. Hattie was given $1,000 with which to purchase 20 acres of land. This left 60 acres remaining in the name of the father, and 40 acres in the name of the mother, lying together in one tract. The children took possession of the respective pieces of land conveyed to them. It does not appear that any provision was made at this time for the complainants Delos and Matilda. November 9, 1872, the father and mother made wills. The will of the former bequeathed all the personal property to his wife absolutely, and the 60 acres of land to her during her lifetime. At her death Charles was to have 10 acres, and $500 to be paid out of the real estate; and the remaining 50 acres was to divided equally between John, Delos, and Matilda. The will stated that Ira and Hattie had received what was intended as their portion of the estate. The wife devised to her husband all her personal property absolutely, and the 40 acres during his lifetime. At his death the land was to be divided equally between John, Delos, and Matilda. It is the theory of the complainants' bill that these conveyances to Ira, John, and Charles, the payment of the $1,000 to Hattie, and the two wills, were intended by the father and mother as an equitable division of their property among their children; the whole shares of Delos and Matilda, and a portion of John's, being postponed in delivery until after the death of both parents. The evidence seems to support this theory. It is also alleged in the bill that this disposition of the property was mutually agreed to by the father and mother, and that the inducement of Charles, Sr., to make his will as he did, was because of the promise of the defendant Ann Carmichael that she would make her will as she did; that each will was made and executed in

1As to what is a sufficient part performance to take a contract relating to land out of the statute of frauds, see Peek v. Peek, (Cal.) 19 Pac. Rep. 227, and note; Slingerland V. Slingerland, (Minn.) 39 N. W. Rep. 146, and note; Ducie v. Ford, (Mont.) 19 Pac. Rep.

pursuance of a mutual promise and agreement that each should be so made as aforesaid; and that, without said promise and agreement by the one to the other, neither of said wills would have been so made. This promise and agreement, if made, was in part an oral one. Charles, Sr., died June 28, 1884. Up to this time neither of said wills had been revoked or altered, and both were in the possession of one William Mercer, with whom they were deposited soon after their execution. In the mean time no further advancements had been made to any of the children. A few days after the death of their father the children made an arrangement with their mother by which the personal property, about $3,600, was divided equally among them, they giving their obligations to her to pay her interest upon that sum while she lived. Delos and Matilda resided away from their mother,-Matilda in Allegan county, and Delos out of the state. Hattie and Ira lived near to her. August 14, 1884, the mother conveyed by warranty deed her 40 acres to Hattie and Charles, and on the same day they deeded one-third of the same to Ira. These three on the same day gave their mother a life-lease of the same premises. These conveyances were all recorded on the day they were executed, but the register was requested not to have the fact of such execution and record published. It was nearly a year before the existence of these conveyances was discovered by the complainants. They then sought to settle the matter, and procure from Ira, Hattie, and Charles Ira a deed of the premises back to their mother, but were unable to do so. They then filed the bill in this cause. The bill, after averring the facts, alleges that the defendant, Ann Carmichael, at the time she deeded the property, was 78 years of age, old and feeble, both physically and mentally, and easily influenced; that the three beneficiaries of these conveyances, knowing her condition, conspired together to poison and prejudice her mind against the complainants, and to unduly influence her against them, in which conspiracy they succeeded, and operating fraudulently, and for the express purpose of cheating complainants out of their just rights the said wills, obtained this deed to Hattie and Charles Ira without any consideration whatever; that the mind of their mother was so weak and open to undue influence that she was not competent to execute this conveyance, and was not fit to do business; that it was obtained by undue influence, and by false and untruthful statements; that she did not know at the time she executed the deed that Ira was to have any interest in the land, and never intended it; that said conveyance was obtained by fraud practiced upon said Ann Carmichael by Ira, Hattie, and Charles Ira, and that it was done to deprive complainants of their title to the same after the death of the said Ann; that the one-third interest was conveyed to Ira without the knowledge of the said Ann. The complainants, therefore, pray that the deeds and the lifelease be set aside, and that injunction issue restraining said defendants from disposing of, transferring, or in any manner interfering with, said real estate, or any part thereof, and for such other relief as may be necessary to enforce and protect their rights in the premises. The defendants admit receiving the property advanced to them about the time of the execution of the wills, and admit the execution of them, and the terms thereof, as set forth in the bill; but deny that said wills were made under any such understanding or agreement between their father and mother as claimed by the bill. They deny the incompetency of Ann to make the deed to Hattie and Charles Ira, and deny any fraud or undue influence in the execution of the same. They allege that Ann was fully competent to dispose of the said 40 acres of land, and that she conveyed the same of her own free will and accord, and in consideration of the care and kindness that said Hattie and Charles Ira had before that time bestowed upon her, and in further consideration that they should care for and support her as long as she lived. The case was heard upon pleadings and proofs before Hon. RICHARD A. WATTS, judge of the Hillsdale circuit, who found that the deed of Ann Carmichael to Hattie E. Disbrow and Charles Ira

Carmichael was obtained by fraud and undue influence practiced upon her by the defendants Ira, Hattie, and Charles Ira, but felt compelled to deny relief to the complainants for two reasons: First. Because he was not satisfied that the contract claimed to have been made between the father and mother as to their wills was established; and that such contract, if made out, being an oral one, "would be invalid and not enforceable. Relating, as it did, largely to real estate, it would be void under the statute of frauds." Second. That the deed cannot be set aside because of undue influence and fraud in this suit, because the complainants have no such interest in the land in question as entitles them to relief; that, in order to vacate and set aside the conveyances complained of, proceedings must be taken in the interest and name of Ann Carmichael, or in the name of a guardian appointed to represent her interest. He therefore dismissed complainants' bill without prejudice.

We fully agree with the circuit judge that the deed from Ann to Hattie and Charles Ira was procured by fraud and undue influence, and that Ann was not competent at the time to dispose of the land to any one. We are further satisfied that the claim of complainants as to the contract is correct. We have no doubt from the two wills and their terms, and the oral evidence connecting them, that the father and mother came to a mutual understanding and agreement as claimed by the complainants; that the wills were made for the express purpose of securing to complainants an equal undivided share of 90 acres of land, incumbered with the $500 bequest to Charles, Jr.; that the making of one will was an inducement to the making of the other, and that the contract and inducement of the father has been carried out and performed by his death with his will executed and standing as he promised; that the children all knew of these wills, and the arrangement and purpose under which they were made. They acquiesced it it. They took possession of their share of the real estate, and have ever since held and enjoyed their respective shares, except Hattie, who took her $1,000 in lieu of land. The complainants were put off in the enjoyment of their own until the death of the survivor of their parents. The mother to-day holds the use of 60 acres of land, and had all the personal property of her husband by virtue of her agreement to will the 40 acres owned by her to the complainants. The fact that she made an arrangement by which she divided the personal property among all the children, and took back notes for the use of the same during her life, does not alter her condition. She had the property, and disposed of it as she saw fit, and disposed of it equitably. It has passed equally into the hands of the children, where it naturally would have belonged at her death. The will and contract of the father having been performed on his part with her, the children having acquiesced in the contract, and had their full share, can these defendants, Ira, Charles Ira, and Hattie, now, in fraud of the complainants' rights, acquire this 40 acres at Ann's death? We think not. If they can, it must be because some narrow technicality stands in the way of justice. In the first place, the will of Ann stands. When she made the deed to Charles Ira and Hattie she was not mentally competent to destroy that instrument, even if the law would permit her to do so. There is no doubt but it is competent for a person to make a valid agreement binding himself to make a particular disposition of his property by last will and testament. Faxton v. Faxon, 28 Mich. 159; Sword v. Keith, 31 Mich. 247; De Moss v. Robinson, 46 Mich. 62, 8 N. W. Rep. 712; Mundy v. Foster, 31 Mich. 313, and note; Johnson v. Hubbell, 10 N. J. Eq. 332; Van Dyne v. Vreeland, 11 N. J. Eq. 370, 12 N. J. Eq. 142; Williams, Ex'rs, (6th Ed.) p. 14, and note, and pp. 162, 163.

But the defendants claim that the contract, resting partly in parol, is void under the statute of frauds, so far as it related to real estate. It is to be remembered, however, that the contract on the part of the father has been fully performed, and that Ann Carmichael, the mother, has received and accepted the benefits of such performance. A court of equity, under these circum

stances, will not permit her to rescind this contract. If this were an oral agreement to convey lands, there is performance enough shown on the part of the father, and acceptance by Ann, to authorize a decree for specific performance of such contract. And by the same principle that would govern in such a case, the performance of the contract in the present case upon the part of the father takes the agreement out of the statute of frauds. The nonfulfillment of this contract upon the part of Ann Carmichael would be a fraud which equity will not allow. Therefore it will decree the performance of the agreement upon Ann Carmichael, or take such steps as shall be necessary to prevent her from violating her part of the contract in fraud of the rights of these complainants. The complainants are not proceeding in this suit as heirs at law of Charles Carmichael, Sr., but as parties having a vested interest in this real estate under the contract of their father and mother, which agreement, having been fully performed by the father, will be enforced against the mother. They are therefore proper parties to this suit, and Ann Carmichael is a proper party defendant. The decree of the court below will be reversed, with costs of both courts, and a decree entered here as prayed by complainants. The other justices concurred.

DOUGLASS et al. v. DOUGLASS et al.

(Supreme Court of Michigan. October 26, 1888.)

1. LIMITATION OF ACTIONS-RUNNING OF THE STATUte-Coverture. Under the Michigan Married Woman's Act of 1855, a married woman is relieved from all disability to bring actions, and the statute of limitations will run against her, though she was married while an infant, and had remained married up to the time of bringing the action. King v. Merritt, 34 N. W. Rep. 700, followed.

2. TRUSTS-EXPRESS TRUSTS-FRAUDS, STAtute of.

Under How. St. Mich. § 6179, no express trust in lands can rest in parol.

Appeal from circuit court, Livingston county; in chancery.

Rollin H. Persu, for appellant. Luke S. Montague, for appellees.

LONG, J. The bill of complaint in this cause was filed by complainants to set aside three deeds,-one made by Alanson Douglass and wife to Myron Parker and Hiram Parker, dated November 2, 1857; one made by Myron Parker and Hiram Parker and their wives to Amanda Douglass, dated November 5, 1863; and the other made by Amanda Douglass to Sarah T. Parker, dated November 5, 1863,-conveying 240 acres of land in the township of Iosco, in the county of Livingston, and praying that each of said complainants be decreed an undivided three-fourths of said premises, and for an accounting for the rents and profits of the premises. The adult defendants, Amanda Douglass and Mary Parker, filed an answer to the bill, and the infant defendants, Emma Parker and Everett Parker, by guardian ad litem filed an answer setting forth the same facts of defense as those set forth in the answer of the adult defendants. Proofs were taken before a commissioner upon the issue in the case, and a hearing had thereon before said court, and a decree was entered therein dismissing the bill, from which decree the complainant Helen Segar alone appeals. The complainants are brother and sister, and children of Amanda Douglass, one of the defendants. The bill alleges that their father, Samuel B. Douglass, was the owner in fee, and in the actual possession during his life-time, of the N. E. and the E. of the N. W. of section 17, in township 2 N., of range 3 E., in the county of Livingston, state of Michigan, containing 240 acres of land; that for several years Samuel B. Douglass, with his family, lived upon the premises, and made large improvements on the lands; that on the 7th day of June, 1844, Samuel B. Douglass was in embarrassed circumstances, and for the purpose of raising the money to pay off such indebtedness he made a loan of $350 from his brother, Alanson Douglass, and v.40N.w.no.2-12