Error to Chippewa; Steere, J. Submitted October 22, 1909. (Docket No. 160.) Decided November 5, 1909.

Assumpsit by James L. Lipsett and others against Andrew Hassard upon a promissory note. A judgment for defendant is reviewed by plaintiffs on writ of error. Reversed.

Sharpe & Handy, for appellants.

M. M. Larmonth, for appellee.

Plaintiffs, defendant, and several others were stockholders in the Soo Milling Company, a limited copartnership organized in 1901 for the purpose of operating a flouring mill in the city of Sault Ste. Marie. The business was a losing venture, and it was necessary to borrow money to carry on the business. The company borrowed money, and the plaintiffs, defendant, and others, seven in all, indorsed the notes here involved, amounting to $6,000, and borrowed money on other notes which were indorsed by the plaintiff and others, but upon which Mr. Hassard was not an indorser. To secure the indorsers on all the notes, the company in December, 1904, executed a mortgage on all its real and personal property for an indebtedness not to exceed $15,000. All the notes specified in the mortgage, amounted to $14,000.

At a special meeting of the company, duly called on February 7, 1905, at which plaintiffs and defendant were present, the following resolution was unanimously adopted:

"Resolved, that a committee consisting of J. L. Lipsett, R. G. Ferguson, M. N. Hunt, and E. J. Swart be and are hereby appointed to dispose of the entire stock of merchandise now on hand as quickly as possible at the best prices obtainable and that the mill be shut down as soon as the grain now on hand is ground and that the manager proceed to collect all outstanding accounts and reduce the indebtedness as much as possible."

This committee proceeded to sell the personal property,

on which they realized $12,502.80. Subsequently a receiver was appointed. The mortgage on the real estate was foreclosed, and a further sum was realized. The committee applied this $12,503.80 upon the indebtedness of the company other than the notes here involved. The amount realized upon the foreclosure of the mortgage was applied upon these notes, after which there remained still unpaid thereon $3,411.77. Plaintiffs paid these notes to the bank, which held them and sued the defendant for his share, one-seventh of the amount. The defendant interposed two defenses: First, that there was an understanding at the time of passing the resolution of February 7th, that the receipts of the sale should be applied in payment of these notes; and, second, that the bank had released the defendant from liability thereon. The case was submitted to the jury upon these two defenses, and verdict rendered in his favor.

GRANT, J. (after stating the facts). 1. There is no ambiguity in the resolution under which this committee as trustees acted. Parol evidence of what was said by the stockholders at the meeting or the defendant's understanding of how the proceeds were to be applied is inadmissible. 17 Cyc. p. 588; Ten Eyck v. Railroad Co., 74 Mich. 226 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Kalamazoo Novelty Manfg. Works v. Macalister, 40 Mich. 84; Oswold v. Minneapolis Times Co., 65 Minn. 249 (68 N. W. 15); Dennis v. Joslin Manfg. Co., 19 R. I. 666 (36 Atl. 129, 61 Am. St. Rep. 805); Peterborough Railroad v. Wood, 61 N. H. 418. This testimony was inadmissible.

2. Defendant bases his release upon his claim that he went to Mr. Fowle, the president of the bank,

"To get these notes collected as I did not want them hanging onto me, and he said: "Never mind these notes. You have nothing to do with them. They will be taken care of;' and I went back to Mead (the cashier), and I says: 'You remember now that I do not want

these hanging onto me.' And he says: 'Mr. Fowle told you the notes were all right;' and so I went out with that."

In fact, the defendant and other indorsers were joint makers. If the language amounted to a promise to release, there was no consideration for it. Promissory notes cannot thus be changed by parol. Bishop on Contracts (2d Ed.), § 770.

3. It was the legal duty of these trustees to apply the proceeds of this sale pro rata upon all the indebtedness secured by the mortgage. The resolution did not authorize them to pay unsecured indebtedness and such of the notes secured by the mortgage as they might see fit. The obligations of the parties were fixed by the mortgage, and all the notes secured thereby should have been treated alike. There was no proof of any waiver on the part of the defendant. It was therefore the duty of the circuit court to instruct the jury to ascertain the total amount of the debts thus secured, the total amount of receipts from the sales of property, to apply these receipts pro rata upon the secured debts, and to render a verdict for the plaintiffs for defendant's share of the notes, provided there was not sufficient to pay them all.

Judgment reversed, and a new trial ordered.

MONTGOMERY, OSTRANDER, MOORE, and MCALVAY, JJ., concurred.

DUFF v. HALL.

FORCIBLE ENTRY AND DETAINER-TAXATION-SUMMARY PROCEEDINGS-TAX HOMESTEAD LANDS-EJECTMENT.

Summary proceedings before the circuit court commissioner will not lie to dispossess the original owner peaceably in possession of tax homestead lands, purchased under Act No. 206, Pub. Acts 1893, as amended by Act No. 141, Pub. Acts 1901; the remedy being ejectment.

Error to Muskegon; Sessions, J. Submitted October 14, 1909. (Docket No. 90.) Decided November 5, 1909.

Summary proceedings by Eva M. Duff against William Hall for the possession of certain real estate. A judgment for defendant is reviewed by complainant on writ of error. Affirmed.

James E. Sullivan, for appellant.

Turner & Turner, for appellee.

Complainant obtained from the commissioner of the State land office a deed of the lot in question under section 131, Act No. 206, Pub. Acts 1893, as amended by Act No. 141, Pub. Acts 1901. Her deed was obtained September 20, 1907. Mr. Sullivan called upon defendant, and informed him that complainant owned the property by virtue of the State homestead deed, and asked him to surrender possession. The defendant then stated that he had not paid the taxes, had no further rights in the premises, and agreed to vacate and surrender possession thereof within a week. On July 6, 1908, without having served any written or other notice to quit, complainant instituted this suit before a circuit court commissioner, under the

158 MICH.-88.

statute to recover possession of the land. The case was contested before the commissioner, who rendered judgment for the complainant. Defendant appealed to the circuit court. Upon the trial in that court complainant made her case by the testimony of Mr. Sullivan, as above stated, and the introduction of her deed. As soon as the deed was offered, the attorney for defendant objected to its introduction, claiming that the deed was void, and that the land commissioner had issued the deed without authority, giving his reason therefor, which it is unnecessary to mention. The court thereupon entered judgment for the defendant, dismissing the complaint for four reasons:

(1) Because a question of title was raised which cannot be tried before a circuit court commissioner or upon appeal to the circuit court.

(2) No force was used by defendant, either in entering upon or in detaining the premises. Therefore complainant could not recover under "forcible entry and detainer act" (3 Comp. Laws, § 11154).

(3) No contract relations existed between complainant and defendant, and therefore defendant is not entitled under the "summary proceedings statute" (3 Comp. Laws, 11164).

(4) Because, if any contract relation did exist between them, the defendant was at least a tenant by sufferance and entitled to the statutory notice to quit.

GRANT, J. (after stating the facts). Counsel for complainant concedes that, if the title to the land in question is involved, the circuit judge reached the correct conclusion. Defendant was the owner of the original title, and was peacefully and rightfully in possession of the land. He neither obtained nor retained possession by force. He therefore does not bring his case within the statute of forcible entry and detainer. 3 Comp. Laws, §11154. Defendant did not hold possession of this land under any of the conditions specified in section 11164, which would entitle plaintiff to maintain a summary proceeding to recover possession. Defendant was not hold