oath prescribed in the chapter; that he gave notice of the time and place of sale as in this chapter prescribed; and that the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who purchased them in good faith. These various clauses have been before the court for construction on different occasions. As to the first clause, it has been held that it is sufficiently complied with if the sale is ordered by the probate court having jurisdiction of the estate. Howard v. Moore, 2 Mich. 226; Woods v. Monroe, 17 Mich. 238; Dexter v. Cranston, 41 Mich. 448; Blanchard v. De Graff, 60 Mich. 107, 26 N. W. 849. See, also, Gary, Prob. Law, § 539; Reynolds v. Schmidt, 20 Wis. 374. The second provision, requiring a bond in case a bond is required, has been construed to mean in case a bond is required by the probate court. Norman v. Olney, 64 Mich. 553, 31 N. W. 555. The question which presents the greatest difficulty arises out of the failure to give the notice required by the statute. Section 6040, 2 How. Ann. St., provides that when a sale is ordered, notice of the time and place of holding the same shall be posted up in three of the most public places in the township or ward in which the land is situated, and shall be published in a newspaper, etc. This was not complied with, and, unless the order confirming the sale shall be held to have cured the error, it follows that the defendant acquired no title. It is undoubtedly true, in a sense, that the probate court is a court of general jurisdiction, but the proceeding for the sale of lands by an executor or administrator is statutory, and it cannot be doubted that it would be competent for the legislature to fix the limit of the presumptions that are to arise from an adjudication of the court, or to limit the conclusiveness of the holding of the court upon any question. 12 Am. & Eng. Enc. Law, 268, 269, Public policy requires, undoubtedly, that sales by administrators shall be upheld where good faith is shown, and that irregularities which have not affected the interests of the parties concerned disastrously shall not operate to defeat title. But when the statute was enacted this was a legislative question, and, if the fair construction of the provisions

of this statute leads to the conclusion that the defect in question is not obviated by the curative provisions, much as we may regret the necessity of so holding, we are bound to follow the statute. It is to be noted that the curative section was deemed by the legislature necessary, and this is declarative of the understanding as to the nature of the proceedings, and as to the force which the legislature intended should be given to the adjudication and determination of the court. It is also to be noticed that in this curative section it is provided that there must be a concurrence of all the conditions named before the attack upon the sale for irregularity in the proceedings is precluded. This includes not only notice of the time and place of sale, as in this

chapter prescribed, but also the confirmation of the court. It seems illogical to hold that the confirmation of the court may cure the error of a failure to give the notice of the time and place as prescribed, when the requirement of such a notice is coupled with the confirmation in the curative provisions. In Cahill v. Bassett, 66 Mich. 407, 33 N. W. 722, the question whether the confirmation of sale would cure such a defect was raised, but not decided. The opinion of Mr. Justice Champlin implies that the confirmation would not cure such a defect, and this was concurred in by Mr. Justice Morse. But in the later case of Schaale v. Wasey, 70 Mich. 414, 38 N. W. 317, in an opinion by Mr. Justice Morse, concurred in by his associates, it appeared that the notice was published in a newspaper mainly published in the German language. The court said: "We do not think such a publication as the one in this case a proper one under our laws, but we are not prepared to say this vitiates a good-faith sale, legally made in all other respects, especially when such sale is attacked collaterally, and there is no evidence showing a want of bidders at such sale, or any inadequacy of price in the sale." It is difficult to understand how this holding could have been made, unless upon the ground that the confirmation of the sale cures the defect. This view finds support in Osman v. Traphagen, 23 Mich. 79; Van Fleet, Coll. Attack, § 787, 'and cases cited. Nevertheless, we think the court lost sight of the real purpose and intent of the legislature in the enactment of the curative provisions of the statute, and that the holding should be overruled. We think the sale in the present case cannot be sustained. How far the defendant may be made whole by subrogation or other equitable remedy cannot, of course, be determined on this record. Judgment should be reversed, judgment for plaintiff entered here on the findings, and the case remanded for further proceedings under the statute.

TOWNSHIP OF GRANT v. TOWNSHIP OF RENO.

(Supreme Court of Michigan. July 16, 1897.) CONTRIBUTION-ENFORCEMENT.

In a suit for contribution to the payment of a judgment it appeared that, before the defendant township was detached from the complainant township, complainant had issued certain bonds. which, though void in the hands of payees, were adjudged valid in the hands of innocent purchasers. After the organization of defendant, the township boards agreed upon the proportion which defendant should pay on account of such bonds; but, after judgment rendered against complainant on default in a suit to which defendant was not a party, defendant refused to pay any portion thereof. Held, that the burden was on complainant to show that such bonds had been purchased by such judgment plaintiff, or by some intermediate holder thereof, in good faith, for value, without notice of their invalidity.

Appeal from circuit court, Iosco county, in chancery; Willia.n H. Simpson, Judge.

an order to show cause. The question presented is whether, under the law, the board of county auditors had the exclusive right to supervise the construction of the building. Under the ninth subdivision of section 8, Act No. 63, Laws 1889, being section 518, 3 How. Ann. St., it is provided that the board of county auditors shall have authority to procure the necessary plans and specifications for, and supervise the construction of, any building erected by the county, excepting such as the superintendents of the poor may construct. By section 9 of the same act, it is provided that the board of supervisors of said county shall not have or exercise the powers herein conferred upon said board of auditors. In subdivision 7 of section 8 it is provided that the said act shall not be construed to give said board of auditors the power to contract for the erection of new buildings or the purchase of any land for any purpose whatever. These provisions would seem to be clear enough in their terms, but it is contended that the provisions of the act conferring this right upon the board of auditors is unconstitutional; that under the constitution the authority to contract for the erection of public buildings is vested in the board of supervisors, and that this includes the power to see to it that the contract is complied with, and for that purpose to supervise the construction of the building. Section 6, art. 10, of the constitution provides: "A board of supervisors consisting of one from each organized township shall be established in each county with such powers as shall be prescribed by law." Section 9 of article 10 reads as follows: "The board of supervisors of any county may borrow or raise by tax $1,000 for constructing or repairing public buildings, roads, or bridges, but no greater sum shall be borrowed or raised in one year unless authorized by a majority of the electors of such county voting thereon." The latter provision is the only one which in any way supports the contention of respondent. In Board of Sup'rs v. Donovan, 69 N. W. 83, we held that the power conferred by section 9, art. 10, was not so broad but that it was subject to legislative control, in view of the provisions of section 6 of the same article. The question was more directly before the court in Attorney General v. Board of Auditors, 73 Mich. 53, 40 N. W. 852, in which case Mr. Justice Campbell, in an exhaustive opinion, reviewed the history of the board of auditors, and reached the conclusion that, previous to the constitution of 1850, the board of auditors had the same general power, except as to taxation, possessed by the board of supervisors, and the question dealt with, as stated by the learned judge, was whether the constitution of 1850, and the legislation under it, had changed the power of the auditors, and confined them within closer limits; and referring to the provisions of section 10, art. 10, which reads: "The board of supervisors, or in the county of Wayne, the board of county audi

scribe and fix the compensation for all services rendered for and to adjust ali claims against their respective counties,”-it was said: "The fact that the auditors are expressly named in one section with the supervisors is very significant, and, according to the usual rules of construction, would confine their powers to those named in that section as far as such powers are enumerated. In regard to powers not so enumerated, either of supervisors or auditors, the constitution would not repeal or affect them, unless repugnant. But as, apart from the constitutional grant, all the powers of both boards depended upon legislation, they could be changed or abolished at will. 串 * There can be no doubt that the convention meant to exclude any board but the supervisors from managing any business given into their charge by the constitution in express terms, except in the single subject of services and claims in Wayne county. * * Not only is it plain, from the natural meaning of the constitution itself, that such powers as the constitution itself gives to supervisors should be exclusive on all but the one class of powers referred to in section 10, but the legislature of 1851, on which the duty had been laid of bringing the statutes into harmony with the constitution, gave this article a practical construction in the same direction." And, after reviewing this legislation, Justice Campbell proceeded: "The subject of purchasing or erecting public buildings is outside their [the auditor's] jurisdiction. The powers sought to be restricted are within the exclusive grant to the board of supervisors, and the auditors have no control over them." It is contended that this language was held not alone with reference to the constitutional provisions, but with reference to the statute, but we think the intention was to rest the decision upon the constitutional provision. In Clegg v. Board of Auditors, 96 Mich. 191, 55 N. W. 621, in referring to the case of Attorney General v. Board of Auditors, in distinguishing the case, Justice Grant said: "It must be remembered that in that case the board of auditors were assuming power over a subject which was expressly conferred by constitution upon the board of supervisors." It must be held that this legislation, so far as it attempts to deprive the board of supervisors of the control of this subject, is in conflict with section 9 of article 10. The writ will be denied. The other justices concurred.

JENKS v. HORTON et al. (Supreme Court of Michigan. July 16, 1897.) CREDITORS' BILL-WHEN LIES.

A bill will not lie to subject equitable assets to the payment of a claim which has not been reduced to judgment, and which is against a resident.

Appeal from circuit court, St. Clair county, in chancery; James B. Eldredge, Judge.

Bill by William L. Jenks against Rebecca Horton and others. From a judgment for defendants, plaintiff appeals. Affirmed.

P. H. Phillips, for appellant. Chadwick & Mellwain, for appellees.

HOOKER, J. Rebecca Horton was the owner of a life estate in certain lands, and it was a duty that she owed to the reversioner to pay the taxes during her occupancy. This she failed to do, and, for his own protection, the reversioner paid them, and, upon a bill filed by him, it was decreed by this court, on appeal, that the amount of such taxes constituted a lien upon the premises, and that the same be sold to pay them, unless paid within 60 days. See Jenks v. Horton, 96 Mich. 15, 55 N. W. 372. Subsequently her estate in the premises was sold, under the decree, and brought the sum of $50. This was followed by a petition for an execution for the deficiency. In answer to this petition, it is said that Mrs. Horton averred that the complainant received and accepted, as satisfaction for said claim, a deed of said premises. Her answer does not appear in the printed record, but the statement in the brief is not disputed, and is corroborated by the replication filed. The replication denies her averment as to such adjustment. The circuit court, in chancery, dismissed the petition, upon a full hearing upon pleadings and proofs, by an order couched in the following language: "The petition of the above-named complainant for execution for deficiency in the above cause coming on to be heard on the pleadings filed therein, and testimony taken before me, and after hearing Phillips & Jenks, for complainant, and A. E. Chadwick, for defendant, and it appearing to the court that there is no provision of law authorizing the issuance of execution by this court, for the deficiency arising from the sale of premises under the decree rendered in said cause, it is hereby ordered, adjudged, and decreed that the above-named petition is hereby dismissed, with costs to defendant." From this order no appeal was taken. Previous to the entry and filing of the order (but five days after the date thereof), the bill in the present cause was sworn to. The date of Its filing does not appear, and is of no consequence upon this record. This bill alleges the complainant's claim and the proceedings in the former cause, up to and including the sale under the decree of this court, and states that upward of $400 is still due to the complainant upon the decree, and that Rebecca Horton refuses to pay, and has no property which can be reached by execution, but that she is possessed of rights, under a decree of this court, against one Henry Howard, to the annual payment of $280, and by the terms of which the sum of $280 becomes due and payable on October 15, 1894, from the executors of Henry Howard, he being dead. It was further alleged by the bill that said claim was by said decree made a lien upon certain

real estate in Port Huron. It makes Rebecca Horton and the executors of Howard parties defendant, and prays that the latter be required to pay to the complainant the sum due from said estate to the said Horton, and that her interest in said estate be sold to satisfy the complainant's claim. The defendants all appeared, and answered, denying the jurisdiction of the court in the premises, and Rebecca Horton alleged a former adjudication of the question, and asserted the settlement and satisfaction of the decree. Upon a hearing, on pleadings and proofs taken in open court, the court found, as evidenced by the decree, that "the bill is without equity, and complainant is not entitled to decree thereunder"; and the bill was dismissed, "without prejudice to any existing right in the complainant to his action at law, this decree, however, not being construed as authorizing any action at law."

The decree of the circuit court in the original case is not before us, and we cannot therefore determine that it adjudged the defendant was indebted to the complainants. If it did, we see no obstacle to further proceedings to obtain execution to collect the amount, if the property sold proved inadequate. How. Ann. St. § 6653, gives to courts of chancery authority to issue execution to enforce decrees. If, however, it merely gave relief to the extent of subjecting her life estate to the payIment of the debt that was a lien upon it, it would follow that the complainant has no judgment or decree that will support an exe cution; and this would seem to have been the view of the circuit judge, who denied the application for execution, upon the ground "that there is no provision of law authorizing the issuance of execution by this court for the deficiency arising from the sale of premises under the decree rendered in this cause." That this was his view is indicated by his dismissal of the bill in this cause without prejudice. Having no judgment, and no execution having issued, the complainant is proceeding to subject equitable interests, which are beyond the reach of executions, to the payment of his claim.

It is a rule both of common law and by statute that before the aid of equity can be invoked to subject equitable assets, not liable to execution, to the payment of a debt, all legal remedies shall be exhausted; and, where the defendant is a resident, it must appear that a judgment at law has been obtained, execution issued, and returned unsatisfied. We are not prepared to say that a decree of a court of equity, upon which execution had issued, and been returned unsatisfied, would not be sufficient to justify filing a creditors' bill, or a bill in aid of execution; but in the absence of a personal judgment or decree, and return of execution nulla bona, a bill does not ordinarily lie. While holding that return of execution is not prerequisite to the filing by a creditor of a bill to redeem equitable interests from a mortgage. the United States su

preme court said, in Trust Co. v. Earle, 110 U. S. 715, 4 Sup. Ct. 229: "But in other cases, when the object of the bill is to obtain satisfaction of the judgment, by a sale of the equitable estate, it must be alleged that execution has been issued. This is not supposed to be necessary wholly on the ground of showing that the judgment creditor has exhausted his remedy at law; for, if so, it would be necessary to show a return of the execution unsatisfied, which, however, is not essential. Lewin, Trusts, 513. But the execution must be sued out; for if the estate sought to be subjected is a legal estate, and subject to be taken in execution, the ground of the jurisdiction in equity is merely to aid the legal right by removing obstacles in the way of its enforcement at law. Jones v. Green, 1 Wall. 330. And if the estate is equitable merely, and therefore not subject to be levied on by an execution at law, the judgment creditor is bound, nevertheless, to put himself in the same position as if the estate were legal, because the action of the court converts the estate, so as to make it subject to an execution, as if it were legal. The ground of the jurisdiction, therefore, is not that of a lien or charge arising by virtue of the judgment itself, but of an equity to enforce satisfaction of the judgment by means of an equitable execution. And this it effects by a sale of the debtor's interest, subject to prior incumbrances, or according to circumstances, of the whole estate, for distribution of the proceeds of sale among all the incumbrancers, according to the order in which they may be entitled to participate. Sharpe v. Earl of Scarborough, 4 Ves. 538. It is to be noted, therefore, that the proceeding is one instituted by the judgment creditor for his own interest alone, unless he elects to file the bill also for others in a like situation, with whom he

third persons, or to reach property not accessible to an execution, that a legal preference is acquired which a court of chancery will enforce.' This is in strict accordance with the analogy of the law, as it was recognized that the judgmeut creditor who first extends the land by elegit is thereby entitled to be first satisfied out of it. It is the execution first begun to be executed, unless otherwise regulated by statute, which is entitled to priority. Rockhill v. Hanna, 15 How. 189, 195; Payne v. Drewe, 4 East, 523. The filing of the bill in cases of equitable execution is the beginning of executing it." The case of Earle v. Grove, 92 Mich. 285, 52 N. W. 615, is cited in support of the practice in this case. But there was a showing in that case that the defendant was a nonresident, and had no property subject to execution in this state, while the complainant had an uncollected judgment against him in New York. An amendment

alleging the issue and return unsatisfied of execution upon the New York judgment was permitted, and the judge's order permitting the amendment was sustained. We think this case does not support the proposition that a bill might be filed to reach equitable assets, not only before execution issued, but before judgment. We think the holding of the learned circuit judge was right, and his decree is affirmed. The other justices concurred.

1. Where a drain was constructed by a drain commissioner after notice in accordance with the statutory requirements, a landowner who stood by and saw the improvements made, and took no steps to impeach their validity, is estopped to question the same when called upon to pay for improvements.

specific lien arises by virtue of the judgment and execution alone, the right to obtain satisfaction out of the specific property sought to be subjected to sale for that purpose dates from the filing of the bill. The creditor,' says Chancellor Walworth, in Edmeston v. Lyde, 1 Paige, 637-640, 'whose legal diligence has pursued the property into this court, is entitled to a preference as the reward of his vigilance;' and it would seem unjust that the creditor who has sustained all the risk and expense of bringing his suit to a successful termination should in the end be obliged to divide the avails thereof with those who have slept upon their rights, or who have intentionally kept back that they might profit by his exertions when there could no longer be any risk in becoming parties to the suit.' As his lien begins with the filing of the bill, it is subject to all existing incumbrances, but is superior to all of subsequent date. As was said by this court in Day v. Washburn, 24 How. 352: 'It is only when he has obtained a judgment and execution in seeking to subject the property of his debtor in the hands of

2.

the citizens of two counties, and a township in another county was mentioned in the petition, but no freeholders of that county signed it, and the proposed drain did not run through any part of it, the inclusion of the name of the commissioner of such county in the petition did not invalidate the proceeding.

3.3 How. Ann. St. § 1740d8, providing that after the drain was proposed the commissioners should divide it into convenient sections for letting the work, is directory only, and, where the drain is more conveniently let as a whole, failure to divide into sections is immaterial.

4. The fact that a drain is a running stream, and is created by deepening and widening it, does not render the work an internal improvement, within prohibition of the constitution.

5. Drain act (Acts 1885, p. 309), providing for local improvements for the public health to be paid for by persons and townships benefited, is not unconstitutional.

6. In an action to recover a tax paid under a drainage assessment, plaintiff cannot show that his land was so remote that it was not benefited by the drain.

Error to circuit court, Lapeer county; George W. Smith, Judge.

Action by Nathaniel Smith against Lyman Carlow, township treasurer. Judgment for plaintiff. Defendant appeals. Reversed.