as a defense in a suit to quiet title brought by the holder of the tax deed, entry of decree was deferred, and defendant given a reasonable time within which to avail himself of the statute.

Appeal from Grand Traverse; Corbett, J. Submitted June 9, 1898. Decided July 18, 1898.

Bill by Fred A. Kneeland and John H. Cole against Herman Hyman to quiet title. From a decree dismissing the bill, complainants appeal. Reversed.

Complainants are the owners of a tax title to the land described in the bill of complaint, under a decree duly entered for the delinquent taxes of 1893 and the sale thereunder, having obtained the tax deed March 10, 1897. Defendant was the original owner. The land is wild and unoccupied. The bill sets up the deed under which the defendant derived his title, alleges that it is a cloud upon complainants' title, and prays for a decree that the title of complainants be declared paramount to that of the defendant. The answer alleges payment of the tax in due time. The court found that the taxes were not paid, but that defendant, in March, 1895, applied to the county treasurer to pay all the delinquent taxes upon the land; that the treasurer informed him that there were no taxes due for the year 1893; that the taxes were unpaid for 1894; and that defendant paid them. The payment of the 1894 tax is conceded. The court, upon the hearing, permitted defendant to amend his answer by setting up the latter defense.

Tweddle & Cross, for complainants.

Pratt & Davis, for defendant.

GRANT, C. J. (after stating the facts). We pointed out in Kneeland v. Wood, 117 Mich. 174, the two remedies provided by the statute in case of payment, or where the owner has been misled by the statement of the col

lector. That was an action of ejectment, and we held that a collateral attack upon a decree rendered in a tax suit could not be made, but that the owner must resort to one of these two remedies. If he could not make a collateral attack at law, for the same reason he cannot make it in equity. Defendant should have availed himself of one of the above remedies.

Instead of resorting to the action of ejectment, complainants have chosen to go into a court of equity. It is the province of that court to protect the rights of all parties, and do justice between them, when it can be done. It is not only inequitable, but unjust, that a person should lose his land when he has made an honest effort to pay the tax, and has been misled by the statement of the officer, on which he had the right to rely. The law does not contemplate such a result. The case of Kneeland v. Wood had not been decided when this suit was heard. Undoubtedly counsel advised that the defense could be made in this suit. We think it equitable and just that the defendant should be given an opportunity to avail himself of either of the above remedies, should he see fit to do so.

The decree will therefore be reversed, and the case remanded, and 90 days given to the defendant within which to avail himself of the statute. The complainants will recover the costs of both courts.

The other Justices concurred.

PEOPLE v. HOTCHKISS.

1. ORDINANCES-HAWKERS AND PEDDLERS-LICENSE FEE-REASON

ABLENESS.

A city ordinance requiring hawkers and peddlers to pay an annual license fee of $5 for peddling on foot or from a stand, of $25 for peddling from a hand-cart or from a conveyance drawn by one horse or other animal, and of $50 where more than one animal is used, the licenses to be issued for one year from June 1st, or such portion of the year as intervenes between the issuance and June 1st ensuing, is not unreasonable.

2. SAME-DISCRIMINATION-RESTRAINT OF TRADE.

Such an ordinance is not void as discriminatory and in restraint of trade.

3. SAME-UNIFORMITY.

Such ordinance is uniform, in that it provides for a license by the year or part of the year.

Error to Wayne; Hosmer, J. Submitted June 15, 1898. Decided July 18, 1898.

Charles Hotchkiss was convicted, in the recorder's court of Detroit, of peddling without a license, contrary to the provisions of an ordinance. Upon certiorari to the circuit court, the conviction was set aside, and the people bring error. Reversed.

Charles Flowers, for appellant.

E. H. Hinckley, F. Hinckley, and E. S. Grece (J. J. Speed, of counsel), for appellee.

LONG, J. The charter of the city of Detroit provides that "the said council may also license and regulate auctioneers, hawkers, peddlers, newsboys," etc. Charter & Laws for City of Detroit (Ed. 1893), § 139. The ordinances of the city of Detroit provide (Rev. Ord. 1895), by section 1, chap. 105, that "no person shall follow the busi

ness or occupation of a hawker and peddler within the limits of the city of Detroit without a license from the mayor." By section 2 the mayor is given power to issue licenses. All licenses are to be for one year from June 1st, or such portion of the year as may intervene between the date of the granting of the license and the 1st day of June next ensuing. Section 3, as amended in 1897, provides:

"Any person soliciting a license shall pay therefor as follows: For hawking or peddling while traveling on foot, the sum of five dollars; for peddling from hand-carts, the sum of twenty-five dollars, and stands in the public streets, the sum of five dollars; for peddling from any conveyance with one horse or other animal, the sum of twentyfive dollars; for peddling from any conveyance drawn by two or more horses or other animals, the sum of fifty dollars."

Respondent was convicted in the recorder's court of the city of Detroit for peddling produce without a license, and the case was removed to the Wayne circuit by certiorari, where the conviction was set aside. The case comes to this court by writ of error.

It is contended by counsel for respondent:

1. That the ordinance is unreasonable and excessive. 2. That it is in restraint of trade, and discriminates, favoring some and injuring others in the same business. 3. That it changes the amount during the term for which the license is granted, and is not uniform.

The first point is governed by People v. Baker, 115 Mich. 199, and cases there cited. In that case an ordinance of the city of Ionia provided for a license to hawkers and peddlers of five dollars per week, and it was held not unreasonable.

The second point falls directly within the ruling of this court in People v. Sawyer, 106 Mich. 428. That case was brought under the same ordinance of the city of Detroit as the present. The question was raised there that the ordinance was in restraint of trade, and the question settled against the contention.

The other questions need not be discussed. The ordinance is uniform, in that it provides for a license by the year or part of the year.

The order of the circuit court setting aside the conviction must be reversed, and the order of the recorder's court affirmed.

The other Justices concurred.

OTIS v. SPRAGUE.

1. DEEDS-FAILURE TO RECORD-EXECUTION LEVY.

An unrecorded deed is good as against an execution levy, in the absence of fraud.

2. SAME-QUALIFIED CONVEYANCE EVIDENCE.

The facts that a deed from husband to wife was executed during the former's illness, that it was withheld from record until shortly before the maturity of an obligation incurred by the husband after the execution of the deed, and that he in the meantime effected insurance upon the premises in his own name, and retained their management, are not conclusive that it was a qualified conveyance, to take effect only in case the wife survived him, where a prior promise to convey to the wife absolutely in consideration of her caring for his mother, and the rendition of the service contemplated, are clearly shown.

Appeal from Ionia; Davis, J. Submitted June 14, 1898. Decided July 18, 1898.

Bill in aid of execution by Amos E. Otis against Alexander Sprague and Sarah M. Sprague. From a decree for complainant, defendants appeal. Reversed.

R. A. Hawley, for complainant.

McGarry & Nichols (Allen B. Morse, of counsel), for defendants.