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Counsel for plaintiff cites a large number of cases from other States in which deeds of incompetents have been set aside in actions of ejectment. But as said by this court in Harrett v. Kinney, 44 Mich. 457: "The common-law rule, which excludes all defenses in ejectment which are not legal, has been abrogated in many parts of the Union. The courts of the United States, however, still adhere to it. Fenn v. Holme, 21 How. 481; Hooper v. Scheimer, 23 How. 235; Smith v. McCann, 24 How. 398; Johnston v. Jones, 1 Black, 209; Foster v. Mora, 98 U. S. 425." It was further said in that case: "And it also remains in force in this State;" and that "a defendant in ejectment cannot interpose to the action at law the merely equitable defense that the plaintiff's title was fraudulently obtained." It appeared that the deed was collusively given in execution of a land con tract, possession of which was surreptitiously obtained in the absence of the party holding it. It was held that this deed "is not absolutely void in law as for fraud, as it passes the legal title to the grantee named; and the con tract purchaser cannot cause it to inure to himself, except by showing his equitable right and title as against the grantee, and this showing cannot be made in an action of ejectment."

In Michigan Land & Iron Co. v. Thoney, 89 Mich. 231, it was said that—

"Nothing is better settled in this State than that in an action of ejectment an equitable title cannot be set up as a defense against a legal title."

In Paldi v. Paldi, 95 Mich. 410, it was said:

"It is claimed that Justin L. Paldi obtained the deed from the mother of defendant by fraudulent representations. This defense could not be made in an action of ejectment. Upon the execution and delivery of the deed from Angelo Paldi and his wife to Justin L. Paldi, the legal title passed to Justin L. Paldi, and the plaintiff claims under a deed from Justin L. This traces the legal title to the plaintiff."

In the present case the deed passed the legal title to Hendrie. It cannot therefore be attacked in ejectment. If the plaintiff has the right to set the deed aside by reason of his incompetency at the time of its execution, he must proceed in a court where the rights of the parties can be fully adjudicated. This cannot be done except in equity.

The judgment of the court below must be affirmed.

The other Justices concurred.

DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO. v. CITY OF GRAND RAPIDS.

1. RAILROAD COMPANIES-SALE OF PROPERTY FOR LOCAL ASSESSMENT.

Property of a railroad company which is necessary to the enjoyment of its franchise, such as a portion of the roadbed, cannot be sold under proceedings to collect an assessment levied thereon for a municipal improvement. Lake Shore & M. S. R. Co. v. City of Grand Rapids, 102 Mich. 374, followed.

2. RAILROAD COMPANIES-PUBLIC IMPROVEMENTS—ASSESSMENT AS FOR BENEFITS.

A section of the right of way of a railroad company, occupied by its tracks and used for no other purpose, cannot be assessed for the expense of improving a street which crosses it, under a city charter requiring such assessments to be made according to benefits received. MCGRATH, C. J., and HOOKER, J., dissenting, on the ground that the determination by the local authorities upon the question of benefits should be final.

Appeal from superior court of Grand Rapids; Burlingame, J. Submitted May 7, 1895. Decided July 2,

Bill to restrain the collection of a local assessment. Complainant appeals from a decree dismissing the bill. Reversed.

L. C. Stanley, for complainant.

William Wisner Taylor, for defendant.

GRANT, J. The defendant city opened North Lafayette street across the complainant's right of way. The railroad bed, which is 100 feet wide, crosses the street at an angle of less than 45 degrees. An assessment district was established by the common council, on which was assessed the cost of the improvement, under a charter requiring assessments according to benefits received. The defendant included in this district the complainant's right of way to the distance of 100 feet on each side of the street. It divided this into three parcels, fixing the values at $1,000, $180, and $600, respectively. More than one-twentieth of the entire cost was assessed to complainant. The assessment on the $1,000 piece was $569; on the $480 piece, $373; and on the $600 piece, $63. It thus appears that on one piece nearly 80 per cent. of its entire value was assessed as benefits, and on another piece more than 50 per cent.

1. The first question is settled by the case of Lake Shore & M. S. R. Co. v. City of Grand Rapids, 102 Mich. 374, which holds that railroad property cannot be sold for these assessments.

2. The right of way so assessed contains the main track and one side track. It has nothing else upon it, and is used for no other purpose. It has already been dedicated to a public use, and the question is presented whether a railroad right of way can be assessed by municipal corporations for public improvements. So far from being any benefit, it is established by the evidence that the opening and paving of the street were a damage to the complainant. A right of way cannot be benefited by the opening and paving of a street across it. None

of the buildings of the complainant are within two blocks of this crossing. We can see no benefits, immediate or prospective, to the complainant. The division of the right of way into three parcels was arbitrary, as were also the valuations and supposed benefits. The point is so clearly and concisely stated by the supreme court of Pennsylvania that we quote the opinion in City of Philadelphia v. Railroad Co., 33 Pa. St. 43:

"The municipal authorities paved the Gray's Ferry road for a considerable distance, at a place where it lies side by side with the defendant's railroad, and now seek to charge them with half of the cost of it; but they cannot do it. Their claim has no foundation either in the letter of the law or in its spirit, nor in the form of the remedy. Not in the letter, because the defendants do not own the land sought to be charged, and have only their right of way over it. Not in the spirit, because the paving laws are means of compulsory contribution among the common sharers in a common benefit, and as a railroad cannot, from its very nature, derive any benefit from the paving, while all the rest of the neighborhood may, we cannot presume that the compulsion was intended to be applied to them. Not in the form of the remedy, because the execution for this sort of claim is levari facias, a writ not commonly allowed against corporations, and which would hardly produce much when directed against a public right of way. It would be strange legislation that would authorize the soil of one public road to be taxed, in order to raise funds to make or improve a neighboring one."

The same doctrine is held in Junction R. Co. v. City of Philadelphia, 88 Pa. St. 424; State v. City of Elizabeth, 37 N. J. Law, 331; New York & H. R. Co. v. Town of Morrisania, 7 Hun, 652; City of Bloomington v. Railroad Co., 134 Ill. 451; City of Bridgeport v. Railroad Co., 36 Conn. 255; South Park Com'rs v. Railroad Co., 107 Ill. 105; New York & N. H. R. Co. v. City of New Haven, 42 Conn. 279. Decree is reversed, and decree entered in this court

for complainant in accordance with the prayer, with the costs of both courts.

LONG and MONTGOMERY, JJ., concurred with GRANT, J.

HOOKER, J. (dissenting). The city of Grand Rapids caused an assessment for grading a street to be made upon two pieces of land forming a portion of the complainant's roadbed, and the bill in this cause was filed to restrain a sale of the parcels for such assessment. The complainant's right of way crosses the street, and 100 feet in length of said right of way on each side of the street was included in the assessment district. The bill was dismissed, and the complainant has appealed.

The decision in the recent case of Lake Shore & M. S. R. Co. v. City of Grand Rapids, 102 Mich. 374, is conclusive of this case to the extent that the premises assessed cannot be sold upon proceedings to collect the amount of said assessment.

It is insisted that the complainant's land is not subject to assessment for the improvement, and that for that reason also the complainant is entitled to the relief asked. The case of Lake Shore & M. S. R. Co. v. City of Grand Rapids holds that the premises involved in that case were subject to assessment for a street improvement. The difference between that case and this is that in that the lands adjoining the street improved were used for depot purposes, while in this they were used for no purpose but the roadbed, consisting of the main track and one siding, and, while the benefits to the former are apparent, it is said to be equally apparent that there are none in the latter.

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The charter of the city of Grand Rapids provides for local assessment of the cost of street improvements. The council determines the amount to be assessed and the assessment district, and the board of review act as commissioners to make the assessment. Charter 1891, tit. 6, §§ 4-6. Notice of the assessment by publication is

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