by the State for five years. It has been decided many times by this Court that these were improper charges against the counties, and the collection could not be enforced. Auditor General v. Monroe Co., 36 Mich. 76; Auditor General v. Saginaw Co., 62 Id. 579; Auditor General v. Ottawa Co., 76 Id. 295; Auditor General v. Shiawassee Co., 74 Id. 536. To avoid this claim, however, it is insisted by counsel for the Auditor General that settlements have been had from year to year, for many years, up to and including the year 1883, by which the county is now estopped from setting up the claim that these illegal items enter into the account. Claim is also made by counsel in their brief that these items are no part of the account presented, but that respondent seeks to set them up by way of set-off or counter-claim. The answer negatives this position. The only question for consideration then presented is the validity of these claimed settlements, or whether the county is estopped by the dealings had between it and the State from making claim that these items enter into the account. It has been held in the cases above cited that this is an amount which the State had no right to charge up to the county. The account has been carried along by the State for years, with these items included in it. No question has been raised, until this proceeding was commenced, but that the account was properly made up, and of legal items. It does now for the first time appear just what the account is made up from, and, when the board of supervisors ascertained that it included these losses on the five-year list, they refused to apportion or assess the taxes for those amounts, and we think very properly. The figures taken from the books of the Auditor General's office and from the county treasurer's office are presented in this record, running through a period of nearly 20 years. We do not feel called upon to go over them in detail or to state them here. The claimed settlement does not show such an accounting, in our view of the case, as should estop the county from asking that illegal items should be stricken from the account. 1 With the losses charged to the county arising from the sale of the five-year list of lands stricken from the account, and the county given credit, if it has not been given it, for interest on redemptions made at the Auditor General's office where the county has been charged interest on such taxes for the year, the balance of the account should be recognized by the county of Midland, and apportioned as provided by the act of 1885. The writ of mandamus must be denied. CHAMPLIN, C. J., MORSE and GRANT, JJ., concurred with LONG, J. The pressure of business, CAHILL, J., (dissenting). incident to my retirement from this Court, has made it impossible for me to investigate this case as fully as I would like, but, from the examination I have made, I cannot concur in the result reached by my brethren. It seems to me that the conclusion reached allows the respondent to set off its claim, arising under the invalid law of 1869, against the valid claim of the State. This we held could not be done in Auditor General v. Grand Traverse Co., 73 Mich. 182. See, also, Ambler v. Auditor General, 38 Id. 736. It appears clear to me that the unsettled matters of account were settled in 1883, and the claim of the State in this proceeding is for State taxes apportioned to the county since that time. allow the county to defend against this claim by asserting a counter-claim growing out of the other matter is, it seems to me, the same in effect as to allow a suit to be brought against the State for such counter-claim. To 84 128 108 676 84 128 j136 204 84 128 d152 260 j153 433 HENRY H. APLIN, AUDITOR GENERAL, V. OLIVE B. FISHER. Municipal corporations-Public improvements-Petition by property- 1. Parol testimony is admissible to show that joint grantees are husband and wife where the fact of such relationship is not stated in the deed. Dowling v. Salliotte, 83 Mich. 131. 2. The fact whether or not the requisite number of persons have signed a petition for the improvement of a street, when the power to make it depends upon the signatures to the petition of a given number or proportion of the property-holders to be affected, can be inquired into, and the want of such number of signatures shown as a defense, in an action to collect the assessment, if the statute governing the proceeding does not provide that the determination of the proper municipal board shall be conclusive on the subject. 3. Neither a guardian nor an administrator has authority to bind the estate by signing a petition for the improvement of a highway presented to a township board under a statute requiring such petition to be signed by a majority of the resident property-holders upon such highway; nor can a husband, who occupies land under a contract running to himself and wife jointly, be counted as such resident property-holder, unless the petition is also signed by his wife. Appeal from Kent. (Grove, J.) Argued November 12, 1890. Decided December 24, 1890. Petition for sale of lands delinquent for taxes, under Act No. 195, Laws of 1889. Petitioner appeals. Affirmed. The facts are stated in the opinion. Smiley & Earle, for petitioner, contended: 1. The township board acts as a judicial body in considering matters presented to it; citing Wall v. Trumbull, 16 Mich. 228. 2. The township board is given jurisdiction over the subject-matter of street improvements by the statute, it being necessary, however, before that jurisdiction is called into exercise in any particular case, that the property-holders set it in motion by filing a petition. In this case the board investigated the question as to sufficiency of the number of signers, and adjudicated and determined that the requisite number had signed, which determination is conclusive against all collateral attacks, and can only be reviewed in some direct proceeding to attack the same; citing Stoddard v. Johnson, 75 Ind. 20; Montgomery v. Wasem, 116 Id. 343; Elliott, Roads, 383. C. H. Gleason, for defendant, contended for the doctrine stated in the opinion. MORSE, J. This case arises from a proceeding in the circuit court for the county of Kent, in chancery, by the Auditor General, under the general tax laws, to obtain a decree for the sale of certain lands for the non-payment of a tax assessed thereon in the year 1887. The lands are situated in the township of Grand Rapids, on what is known as "Fisher's Second Addition to the City of Grand Rapids," and upon the east side of East street, which street separates the city from the township. In 1887, the township and city authorities. caused said East street to be graded and and improved between Cherry street on the north, and Hall street on the south. This improvement was attempted to be made under Act No. 313, Local Acts of 1875, as amended by Act No. 353, Local Acts of 1877. Under these acts, the township board attempted to unite with the board of public works of the city for the joint improvement of this street, the center line of which is the boundary line between the city and township. In this case we have only to deal with the proceedings of the township board. It appears that two petitions were presented to the township board for the grading of East street. The first one was filed with the township clerk, June 12, 1887. June 18, same year, the township board met, and this 84 MICH.-9. petition was laid on the table indefinitely. July 16, 188, at another meeting of the board, it was resolved "that a new petition, with a majority of the resident propertyholders, will be considered." July 23, 1887, a second petition was presented, and a motion made and carried that the petition be placed on file, and "that the prayer of the petitioners be granted." In the record of this meeting, the petition is set out in full, as is also the determination of the township board that a majority of the resident property-owners favored the proposed improvement. A resolution was also passed declaring the same a necessary public improvement. At a meeting held August 5, 1887, it was resolved that the petition be re-presented, and the action of July 23, 1887, was canceled, and so marked on the records of that meeting. August 22, 1887, a petition identical in words and signatures with the one of July 23, 1887, was received and filed by the township board. Acting upon this, the board determined that it was signed by a majority of the resident property-holders, and proceeded to make the improvement. The township board established a district deemed to be benefited by the proposed improvement, and upon which the cost thereof should be assessed, and let the contract under which the township's share of the work was done, and commissioners were appointed, who made an assessment roll containing the descriptions of the lands, the names of the owners thereof, and the tax assessed upon the same. The defendant refused to pay the taxes assessed upon her lands for this improvement, and such lands were returned as delinquent, and included in the petition of the Auditor General in this proceeding, which was commenced by the filing of petition January 14, 1890. The defendant appeared and answered, filing her written |