2. Evidence that, a short time after the exchange of the stoves, the plaintiff was informed that the stove received of defendant was worthless,-"worth not to exceed three dollars,"-does not establish a case of worthless property, so as to excuse a return of the stove, within the decision in Sheldon Axle Co. v. Scofield, 85 Mich. 177.

Error to Clinton. (Daboll, J.) Submitted on briefs November 17, 1893. Decided November 24, 1893.

GRANT, J. The parties to this suit were neighbors in the same village. Plaintiff owned a coal stove, and defendant a wood stove. They made an exchange, defendant paying plaintiff two dollars additional. Plaintiff went to defendant's house, and examined the stove, before the contract was made. Defendant agreed to, and did, deliver the stove at plaintiff's house, paid the two dollars, and took away the coal stove. Plaintiff retained the stove several weeks, when, claiming that she had been defrauded, she sought to rescind the contract. She caused a demand to be made for the return of the stove she had sold defendant, who refused to return it.

She thereupon brought
The defendant

this action of replevin in justice's court. prevailed in both the justice's and circuit courts. Plaintiff's evidence tended to show that her stove was worth about $22. The court directed a verdict for the defendant.

The instruction was correct. Plaintiff had not tendered the property back, or offered to return it, or informed defendant that she might go to her house and take it. She had not, therefore, placed, or offered to place, the defendant in statu quo, which it was her clear duty to do

before she was entitled to the return of her own property. A Mr. Flynn went to defendant, at the request of one of plaintiff's attorneys, told her that he had come there for Mr. Patterson; that he requested him to make a demand on her that she return the stove to Mrs. Johnson,-and tendered her the two dollars. Defendant refused to return

the stove or to accept the money. This is all the plaint

iff did to rescind the sale.

Her counsel seek to bring the case within Sheldon Axle Co. v. Scofield, 85 Mich. 177, where it was held that the law does not require the tender or surrender of worthless property. But the property, in this case, was not worthless. The only statement in the record upon this point is that, "in a short time after the transaction, plaintiff was informed that the stove left by defendant was worthless; worth not to exceed three dollars." This does not establish a case of worthless property. Judgment affirmed.

The other Justices concurred.

THE DETROIT & BIRMINGHAM PLANK ROAD COMPANY V. THE DETROIT CITIZENS' STREET RAILWAY

COMPANY ET AL.

Injunction-Contempt-Street railways.

1. Where, in contempt proceedings for the alleged violation of an injunction, the injunction is not made a part of the record, it will not be assumed to have been broader than the prayer of the bill.

2. An injunction restraining a street-railway company from entering upon a street occupied by a plank-road company for the

purpose of constructing an electric railway track or incumbrance of any kind upon said street, or in any way preparing to lay such track, cannot be said to cover the operation or repair of a track theretofore built and used, although repairs in paving the street had required the temporary removal of a portion of the track.

Complainant applied for a mandamus to compel Judge Frazer, of the Wayne circuit, to vacate an order dissolving a temporary injunction obtained against defendants. An order to show cause was granted October 25, 1891, together with a restraining order pending the hearing on the application. Relator subsequently applied for an order of contempt for the violation of said restraining order. Argued November 24, 1893. Respondents discharged upon the hearing.

Frank B. Leland, for relator.

Russel & Campbell, for respondents.

PER CURIAM. The order heretofore made in this cause, for an alleged violation of which an order to show cause has been issued, if not in terms a continuation of the injunction as originally issued, was substantially so. As that injunction is not made a part of the record, we cannot assume that it was broader than the prayer of the bill. The petition in this cause alleges that it followed such prayer. The prayer asks that "an injunction issue restraining the defendants from entering upon said road for the purpose of constructing an electric railway track or incumbrance of any kind upon said road, or in any way preparing to lay such track."

If, as contended by the relator, this should be construed to apply to the entire line of road, it cannot be said to cover the operation or repair of a track heretofore built and used, although repairs in paving the street had required the temporary removal of a portion of the same.

We

think that respondents were justified in so construing it, and that the acts complained of were in replacing the track temporarily removed, and not in constructing, or preparing to construct, a new road in a place not heretofore occupied by said road.

We therefore conclude and adjudge that the defendants. were not in contempt as alleged, and they are hereby discharged, with their costs to be taxed.

Taxes-Void title-Lien of holder-Enforcement-Jurisdiction- d136 360

Statute of limitations.

97

585

138

8

138

9

12

138

How. Stat. § 1167, which provides that, if any tax deed made by
the Auditor General shall prove to be invalid for any cause 138
not enumerated in the preceding section, the lien of the State
for all lawful taxes shall remain in full force, and be trans-
ferred to the grantee, his heirs and assigns, who may recover
from the owner of the land such taxes, and all subsequent
taxes paid by them, with 25 per cent. interest thereon from
the dates of payment, and in case judgment is rendered against
them for the recovery of the land, in any action of ejectment
or other action, either at law or in equity, the court shall
ascertain the amount due to the holder of such tax deed, for
principal and interest, and for all improvements made on the
land, and shall decree the payment thereof, and, in default of
such payment, shall decree that the land be sold therefor, is
constitutional, and is construed as follows:

a-The language of the section is broad enough to include the holders of tax titles purchased of the State.

b-The proceeding to enforce the lien of the holder of the tax deed is ancillary to the judgment adjudging its invalidity, and must be instituted on the equity side of the court, and the

20

amount of such lien must be ascertained and determined in such proceeding; citing Weimer v. Porter, 42 Mich. 569; Ellsworth v. Freeman, 43 Id. 488.

c-The statute of limitations does not apply to actions under this provision, which clearly means that, at any time when a plaintiff has recovered in an action of ejectment, the defendant may still have a lien upon the lands for the legal taxes. d-The rights acquired under this section were not divested by the tax law of 1882 (Act No. 11).

Mandamus. Argued November 14, 1893. Granted November 28, 1893.

Relator applied for mandamus to compel the respondent to vacate an order fixing a time for hearing a motion to ascertain the amount due a defendant in an action of ejectment for taxes and improvements, the tax deed under which he claimed the land having been adjudged invalid in said action. The facts are stated in the opinion.

G. W. Davis, for relator.

L. T. Durand, for respondent.

GRANT, J. William L. Webber obtained a tax title from the State of Michigan upon certain lands for taxes levied in 1874, 1876 to 1880, inclusive. Relator, who was the owner of the original title, brought an action of ejectment against Webber, in which, on appeal to this Court, the tax title was held invalid. Tillotson v. Webber, 96 Mich. 144. After the determination of that case, Mr. Webber made a special motion in the circuit court to ascertain the amount due him for legal taxes included in his tax deed, and for taxes paid, and for money expended in improvements by him. The court granted the order, fixing a time for the hearing and the production of the

1 See Shaw v. Morley, 89 Mich. 313, holding that section 1167 relates to titles acquired after its passage, and to taxes paid after the acquirement of such titles.