show by a fair preponderance of the evidence that it believed and had good reason to believe that its security was in danger of being impaired. The infirmity in this instruction is exactly that pointed out in the case of Woods v. Gaar, Scott & Co., 93 Mich. 143 (53 N. W. 14). The other assignments of error need not be considered as they are not likely to arise upon another trial.

The judgment is reversed, and a new trial ordered.

MOORE, C. J., and STEERE, MCALVAY, BLAIR, STONE, and OSTRANDER, JJ., concurred. BIRD, J., did not sit.

CRAIG v. BROWN.

ATTACHMENT-FOREST PRODUCTS-LOGS AND LOGGING-PROCESSSUBSTITUTED SERVICE.

Under the statute creating and enforcing liens upon logs and other forest products, 3 Comp. Laws, § 10761, service must be made upon the owner of forest products seized under attachment; and on a showing that the owner, one of the defendants, was at his usual place of residence during 17 days before the return day and after the officer had served the writ upon his agent in charge of the defendant's office, the attachment was properly dissolved. Reynolds v. Marquette Circuit Judge, 125 Mich. 445 (84 N. W. 628).

Error to Chippewa; Steere, J. Submitted January 23, 1912. (Docket No. 148.) Decided March 12, 1912.

Attachment by Archie Brown, Stephen Craig, and others under the log-lien act against Eugene Brown and another. The writ was levied on certain property claimed

169 MICH.-11.

by Millard D. Olds who intervened. Upon motion of said intervener to dissolve the writ the property was released, and plaintiff brings error. Affirmed.

John A. McMahon and L. C. Holden, for appellant. C. S. Reilley, for appellees.

BROOKE, J. This case is here on writ of error, the purpose of which is to review the action of the circuit judge in entering an order dissolving the writ of attachment, releasing the forest products seized thereunder, and discharging the bond given by Millard D. Olds, inter

vener.

The reason for the making of said order is set out therein as follows:

"It appearing to the court that no proper service of said writ had been made upon said Millard D. Olds, owner of the forest products, one of the defendants."

The statute governing the matter is section 10761, 3 Comp. Laws, and provides:

"The attachment shall require the sheriff, or other proper officer, to attach and safely keep the property or products described in the writ, or so much thereof as is necessary to satisfy the claim of the plaintiff, with all costs and disbursements, charges and expenses, and said attachment shall also require the said sheriff, or other proper officer, to summon the defendant therein named to appear before said court at the time and place therein specified, the same as ordinary writs of attachment in circuit and justices' courts; and any such attachment or other process issued out of said courts of this State in pursuance of the provisions of this act, may be served in any county of this State, and if the defendant in said attachment is not the owner of the property or products described in said writ, then the officer executing said writ shall serve or cause to be served a copy of said attachment on or before the return day mentioned in said writ upon the owner of said products, or any of them, their proper agent or attorney, if such owner, agent or attorney be known to him, and residing in this State."

It appears that defendant Olds is a resident of the city of Cheboygan, where he is engaged in the manufacture of lumber. On July 1, 1910, Olds was absent from Cheboygan, but returned on July 3d. Service of the writ herein was made on July 1st, upon one Edgar O. Hugill, described in the affidavit of service as "the agent, bookkeeper, and man in charge of the lumber office of Millard D. Olds." The return day of the writ was July 20th. The affidavit of Olds, in support of his application to dismiss the writ, shows that he was at home in the city of Cheboygan all the time between July 3 and July 20, 1910. This statement of facts is identical with that considered by this court in Reynolds v. Marquette Circuit Judge, 125 Mich. 445 (84 N. W. 628), where it was held that the service was bad.

Plaintiff insists, however, that we should overrule our holding in that case; it being his claim that the question of service under the log-lien law (section 10761, 3 Comp. Laws) was confused with the service provided for under the general attachment law (sections 730 and 731, 1 Comp. Laws).

We find the decision in Reynolds v. Marquette Circuit Judge, supra, is based in part upon the case of White v. Prior, 88 Mich. 647 (50 N. W. 655), where Mr. Justice GRANT, in construing this statute, said:

"Substituted service is only permitted in case the defendant cannot be found."

Again, in the case of Pepin v. Nault, 149 Mich. 180 (112 N. W. 959), the statute was under consideration, and, though there are two opinions, and the Reynolds Case is discussed in both, no doubt is cast upon the correctness of that decision.

The contention of plaintiff that section 10761, 3 Comp. Laws, provides for one method of service upon the defendantand another method of service upon the owner of the forest products, and that the authority to serve "their proper agent or attorney" should be construed as having refer

ence to primary, not substituted, service, is not without force. We find, upon examining the briefs and records in the Reynolds Case, that this view was there urged and rejected.

Upon a consideration of the whole matter, a question of practice only being involved, we have concluded that the judgment of the court should be affirmed.

MOORE, C. J., and MCALVAY, BLAIR, STONE, and OSTRANDER, JJ., concurred. STEERE and BIRD, JJ., did not sit.

MERRITT v. MERRITT.

1. REFORMATION OF INSTRUMENTS-DEEDS - MISTAKE-CANCELLATION-LIFE ESTATE.

Where an aged woman deeded to her nephew a farm of 54 acres of land, both parties intending to reserve to her, support and maintenance during her life, and for that purpose executing a cotemporaneous writing which failed to provide for the grantor in case of the death of the grantee, before her decease, the finding of the lower court that no fraud or undue influence appeared, and correcting the deed so as to carry out the intent of both parties, was justified.

2. SAME.

But instead of ordering that complainant should have a lease for life on the farm, the court should have decreed a lien upon the premises to secure the performance of defendant's contract, and provided for the recording of the decree.

Appeal from Calhoun; North, J. Submitted January 23, 1912. (Docket No. 150.) Decided March 12, 1912.

Bill by Mary Jane Merritt against Frank L. Merritt

and Nora J. Merritt for the cancellation of a deed. From a decree of reformation so as to carry out the mutual intention of the parties, complainant appeals. Modified and affirmed.

Stewart & Jacobs, for complainant.

Weeks & Cooper, for defendants.

BLAIR, J. The bill of complaint in this case is filed to cancel and annul a deed executed by complainant to the defendant Frank L. Merritt, on the ground that such deed was obtained by fraud and undue influence.

The defendant was a nephew of complainant's deceased husband, and had lived in the family substantially as a son nearly all of his life. After his uncle's death, he took charge of and conducted the farm, which contained 54.96 acres of land. The deed in question was executed June 24, 1907, at which time complainant was about 74 years of age. Cotemporaneous with the execution of the deed, the parties executed an agreement, which, after reciting the deed, provided as follows:

"Now, therefore, it is mutually agreed by and between the aforesaid parties in consideration of the premises that said party of the first part shall continue to reside on said premises as long as she shall live and further that said party of the second part shall care for, support and maintain said party of the first part on said premises in health and sickness so long as she shall live, well and faithful, and furnish her with all the necessities of life, medical attention and care at all times and in case of her death to pay all funeral charges and expenses."

On September 2, 1908, the defendants executed a mortgage upon the farm for $1,000, without complainant's knowledge, and the defendant Frank listed the farm for sale with real estate men.

After hearing the proofs in open court, including the testimony of the parties, the circuit judge found that complainant was mentally competent to make the deed, and the same was not the result of fraud or undue influence.