whatever. He avers that he had loaned to Charles Blass, defendant, said sum of $450, and that Olive Blass, defendant, was owing Charles, and, in consideration thereof, secured said loan from defendant to said Charles Blass by giving the mortgage to him; that the same is now wholly due and unpaid, and remains so except as the foreclosure has paid and satisfied the same. He avers that, at the time of the foreclos ure sale, one Peter D. Blass held and asserted against the 38-acre parcel of land two tax-titles or deeds from the auditor general of the state of Michigan, dated the 15th day of November, 1882, and the 1st day of February, 1883, for the unpaid taxes for the years 1879 and 1877; and that the deed of November 15th also conveyed to Peter D. Blass the 34-acre parcel in question in this suit; and that, since the date of said mortgage sale, the defendant has purchased and holds all the right, title, and interest of Peter D. Blass to said premises by virtue of said tax-deeds, or otherwise. He avers that he is ready to come to a full and fair accounting of the amount due on said mortgage with the complainant or any person entitled to the same, but he denies complainant's right thereto, and he denies his right to redeem therefrom, and denies that complainant has a right to the assignment thereof, or to be subrogated to the defendant's rights, and asks, under the supreme court rule providing for the same, that he may have the benefit of his answer as a cross-bill and affirmative relief given him, the same as if A cross-bill were filed by defendant. The case was heard upon proofs taken in open court, before the Honorable R. M. MONTGOMERY, circuit judge, who entered a decree dismissing complainant's bill, and giving relief to defendant upon his crossbill, from which decree complainant has appealed to this court.

a

Complainant's proofs fail to make out any case for equitable relief. He has He has shown by the testimony of Robert Hunter, Jr., that the deed of parcel No. 1 was placed in his hands in escrow, and upon condition that it should not be delivered until after evidence was furnished to him showing that all the debts allowed by the commissioners against the estate of Alpheus Burch had been paid, and that he should then deliver the deed to Olive Blass; that he has not delivered the deed because evidence of the payment of the debts against the estate has not been furnished to him; that the deed has been in his custody all the time, subject to these conditions. The testimony conclusively shows that the debts have been paid only partially, and those by the administrator; that Robert Hunter, Jr., is still the administrator of the estate; and that he has Inventoried the lands described in parcel No. 1 as the property of the estate. The testimony shows that the deed from Alpheus Burch to Noah Burch was made in consideration of an agreement that Noah Burch should support and maintain his father, Alpheus, and his mother, Elizabeth, so long as they lived; and that, after going upon the lands described in the deed, and discharging his part of the agreement for a short time, a dispute between

| him and his father arose, and it was mutually agreed that the transaction in which the deed originated should be con sidered at an end; and that he thereupon surrendered the deed of the premises to his father, and made no claim under the deed since that time; and that, after he was appointed administrator, he found the deed among his father's papers, and it was then unrecorded; and that he (Noah Burch) does not know who placed it upon record. It is unnecessary to pass upon the validity of the arrangement made between Noah Burch and Charles and Olive Blass with reference to the payment of the debts by the latter. The conveyance was not intended to be absolute. Neither was the agreement absolute to pay the debts. If they had paid up every debt in full, then the deed was to be delivered; otherwise, not. Without deciding whether, under such an agreement as this, the creditors of the estate could maintain an action against Charles and Olive Blass to recover the amount due them, it is clear that such creditors would have no lien upon the land by virtue of such agreement to secure therefor such debts against the estate. Had the deed from Noah Burch to Olive Blass been delivered absolutely, under an agreement that she should pay all the debts proved against the estate of Alpheus Burch, the case would have presented some different features from those it now possesses. Then the question would have been presented whether a trust had been created in Olive Blass for the benefit of the creditors which they could enforce in equity. But the title never passed to her clothed with a trust, but it remains in her grantor unaffected by the mortgage she subsequently gave to Smith Blass. The testimony shows that the claims against the estate of Alpheus Burch allowed in favor of Parker and Weatherwax and Hunt and Hunter were both paid by Noah Burch, administrator,-the former in June, 1874, and the latter, August, 1873. This fact was conceded by complainant's solicitor upon the introduction of the testimony in open court. His claim, therefore, that he is a creditor of the estate by virtue of having purchased these claims falls to the ground, and all claims of an equitable lien upon parcel No. 1 falls with it The title of parcel No. 1 may be soclouded by the conveyances from Alpheus Burch to Noah, and from him to Olive Blass, as to seriously affect the sale of such real estate by the administrator. Indeed, the testimony shows that the administrator has obtained license to sell it and has been hitherto unable to do so. In such case it would be his duty, either of his own motion, or upon the motion of some creditor under the statute, to take the proper proceeding to clear the cloud from the title, and to set aside and cancel the two deeds, if the parties claiming through them, or in whose name the legal title stands, should refuse on request to quitclaim their interests. When this is done, the land appears to be of sufficient value to pay all claims against the estate. But a creditor cannot institute such suit, unless by leave of court after the administrator has refused. The complainant,

Parcel, No. 2 never belonged to the estate of Alpheus Burch. The bill alleges it to have belonged to Elizabeth Burch in her life-time. No question is made of the validity of the conveyance from the administrator of Elizabeth Burch to Olive Blass. The mortgage from Olive Blass to Smith Blass was executed in June, 1876, and was promptly recorded. The levy in favor of the Lowell National Bank was made April 27, 1881. It would therefore appear upon the face of the papers that the complainant's rights under the levy to parcel No. 2 are subject to the mortgage debt. Complainant claims that the mortgage was made for the purpose of cheating and defrauding the creditors of Alpheus Burch's estate. This charge is made upon information and belief, and the only support it has in the proof consists in the fact that on September 30, 1875, a note was made by Charles and Olive Blass to Sprague Bros., a part of the consideration for which the note was given being a part of the claim against the estate of Alpheus Burch allowed in favor of one Alburn Rolf; that a suit was brought on this note June 7, 1876, and the mortgage was executed June 17, 1876; and the attorney who drew the mortgage testified that he saw no money pass from Smith Blass to the mortgagors upon that occasion. From this testi. mony, we are asked, not only to infer fraud, but to find that this mortgage is wholly void, as made with intent to cheat and defraud the creditors of Burch's estate. The testimony will not warrant us in coming to that conclusion. It fails to show either fraud in fact, or a fraudulent intent. Moreover, it has repeatedly been held by this court that under such charge the complainant's bill should have been filed in aid of execution before sale. He cannot be permitted to sell the property under the execution with apparently a valid lien upon it, by which its marketable value is affected, and then afterwards proceed to set aside the incumbrance as a fraud upon his rights. There is no charge that the foreclosure by advertisement was not in all respects regular and valid. Subsequent incumbrancers in such case should redeem in accordance with the statutory provisions, and are not entitled to file a bill in chancery simply for the purpose of redeeming. It is true that complainant charged that the amount claimed in the notice of foreclosure sale was not due and owing upon the mortgage. This was denied by the answer, and the complainant has failed to substantiate his charge by proofs. From a consideration of the whole case, we think the decree of the circuit court should be affirmed, with costs; and it is so ordered. The other justices concurred.

(82 Mich. 532)

state, and no others shall be used or circulated. Booths must be constructed so that voters must pass through them on their way to the polls, and while in them be concealed from the view of all. One voter only may enter a booth at a time, and he is allowed sufficient time to select and prepare his ballot, after which he must deliver it to the chairman of the inspectors af election, in full view of all present. No one can be followed inside the railing containing the booths, except a gate-keeper and one challenger for each political party. The inspectors of election must keep the booths supplied with tickets of all political parties, and pasters or slips of candidates, if requested and furnished by them. Held, there is nothing in the law to prevent persons who are blind or otherwise disabled from receiving assistance in preparing their ballots outside the railing, nor, when unable to go alone, from being conducted to the polls by others. It will therefore not deprive any one of his constitutional right to vote, and is valid.

2. The provisions of the law are capable of being carried into effect by the exercise of common sense and reason in the selection of proper instrumentalities by the comptroller, (upon whom that duty is imposed,) and mandamus will issue to compel him to make the attempt.

3. The fact that the act is silent as to payment of the expense incurred in constructing the booths, etc., does not affect its validity, since the imposition of an active duty upon a municipal officer carries with it an obligation on the part of the municipality to bear the expense and provide for its payment.

off

Mandamus.

B. W. Huston, Atty. Gen., (Alfred Russell and Don M. Dickinson, of counsel,) for relatur. C. S. McDonald and Edward Minock, for respondent.

GRANT, J. The common council passed a resolution, requiring the respondent to take the necessary action to carry into effect the election law of 1889 (Act No. 263) at the coming election. He refused, alleging two grounds therefor: (1) That the act is unconstitutional and void; (2) that the booths and railings will cost a large sum of money, and no provision has been made by the law for paying the expense. Petition for mandamus is filed to compel action upon the part of respondent. The act is entitled "An act to prescribe the manner of conducting, and to prevent fraud and deception at, general elections in this state. Its validity is the only question involved. The provisions of the act do not apply to municipalities whose elections are governed by special enactment, except in so far as they relate to the ballot and booths to be used, as provided in sections 8, 9, 10, 11, 20, and 21. These provisions are therefore the only ones in controversy here. They read as follows: "Sec. 8. At every general or special election held in this state, after the passage of this act, each elector shall vote by ballot, and shall, in full view, deliver to the chairman of the inspectors of election a single ballot or ticket, on which shall be written or printed, or partly written and partly printed, the names of the persons voted

V. RUSH.

(Supreme Court of Michigan. Oct. 14, 1890.) CONSTITUTIONAL LAW-ELECTIONS-METHOD OF

BALLOTING-MANDAMUS.

1. Acts Mich. 1889, No. 263, regulating the method of conducting elections, provides that all

which he or they may be intended to fill. No ballot or ticket shall bear upon the outside thereof any impression, device, color, or thing, designed or liable to distinguish such ballot or ticket from other legal ballots or tickets, whereby the same

may be known or designated. No ticket | shall be used at any such election or circulated on the day of such election, unless furnished by the secretary of state for such purpose; and it is hereby made the duty of the secretary of state to procure and furnish, on application and payment to him of the actual cost, with ten per cent. added thereto by the state central committee, county or other managing committee of any political party or organization in this state, such quantity or amount of ballots to be used at such approaching elections as may be deemed necessary or convenient. All ballots to be of the same width and length. Sec. 9. It shall hereafter be the duty of the state central committee, county committee, or other managing committee of any political party or organization in this state, before each election in this state, to prepare and adopt by engraving or otherwise, a ticket vignette or heading, with an appropriate inscription, to be printed at the top of the ticket of the party, on the inside thereof, as a distinctive and characteristic heading thereto. Such vignette or heading shall not be more than two inches high by four and one half inches wide, and, in addition to the device adopted, shall set forth legibly the fact that the ticket is the regular ticket of the party with the name thereof. It shall also show the congressional, senatorial, and representative districts, and county where such ticket may be lawfully voted. Sec. 10. When such vignette and inscription shall have been adopted and prepared, an impression of the same, followed by the regular ticket of such party, printed so as to constitute a lawful election ballot, and sealed up in an envelope, shall be filed with the county clerk of the county where such election is to be held, at least ten days before the opening of the polls at such election. Such ballot shall be kept by such clerk on deposit, and from the time of said filing it shall be unlawful for any person to imitate, copy, or in any manner counterfeit the same. Any person violating the foregoing provision shall, upon conviction thereof, he punished by a fine not exceeding one thousand dollars, or by imprisonment in the state-prison for the term not exceeding one year, or both, in the discretion of the court. Sec. 11. Any person who shall knowingly print, circulate, distribute, or cause to be distributed, any ticket or tickets, ballot or ballots, having thereon the vignette, or any imitation of the vignette, or inscription of any ballot or ticket so filed with the county clerk, but containing the name or names of any candidate or candidates other or different from the name or names upon the ballot or ticket of such party so filed or deposited with said clerk, or who shall intentionally destroy or carry away any ballot or ballots, except for his own usein voting, which shall have been furnished by the inspectors of election for such purpose, shall, upon conviction thereof, be punished by a fine not exceeding one thousand dollars, or by imprisonment in the state-prison not exceeding one year, or by both such fine and imprisonment at the discretion of the court: provided, that nothing in this act

shall be construed to interfere with the right of any elector to erase or insert any name or names upon such ticket, if done in writing, or by printed slips by the elector himself." "Sec. 20. In all townships containing one hundred or more electors, and in all voting precincts in cities and villages, the township board of each township, and the various officers whose duty it may be to designate and prescribe the place or places of holding general elections in the several cities, wards, election districts, and voting precincts throughout the state, shall, and in all townships having less than one hundred electors may, provide for, and cause to be erected in the room where elections are to be held, a railing or fence four feet in height, which railing or fence shall be placed through and across the center of the room, and shall cause a gate to be erected in said railing, and said gate shall be in charge of a gate-keeper appointed at the opening of the polls by the board of inspectors, and no person shall be allowed to be inside of said railing exccpt to vote, and, as soon as the elector has voted, he shall retire without, and shall not again be admitted within, the railing, and only as many electors as there are booths shall be allowed within the railing at one and the same time, and the electors shall be admitted in the order in which they shall apply. The entrance gate shall be erected or placed at one side of the room, and on the inside of the said gate a booth or temporary room shall be erected. At least one such booth shall be provided at each polling place, and not less than one for each hundred persons entitled to vote thereat, and one booth additional for any additional number of voters less than one hundred and more than twenty-five, with walls not less than six feet high, and in such a manner that, as the elector passes in at the gate to the room where the ballots or tickets are taken by the inspectors of election, he shall pass through said booth or temporary room, and be concealed from the view of the inspectors of election and those without the said railing while passing through said booth. Said railing shall also contain an exit gate at a convenient place for voters to pass out. Sec. 21. Before the opening of the polls of any elec tion within the provisions of this act, the inspectors of election shall cause to be hung up or deposited within the booth in the polling place, and in towns where no booths are provided, by placing on a table or desk near the polling place, in separate packages, tickets of all political parties, and pasters or slips for the several candidates, if desired and furnished by them, to be voted at sald election, for the use of electors, and the inspectors of election shall cause said tickets to be replaced when used, so that tickets chall be so hung up or on deposit during the entire time that the polls are open. The constitution of Michigan contains three provisions upon the subject,-sections 1, 2, and 6 of article 7. Section 1 provides who shall be an elector, and that the legislature may provide the way in which his vote shall be cast. Section 2 provides that all votes shall be by ballot. Section 6 provides