CAMPBELL, J. I agree in affirming the judgment, but I do not think it was right to refuse the juror an opportunity to explain. As it appears that he coincided in the verdict, there was no harm done. In concurring in affirmance, I do so only on the errors assigned, with no suggestions beyond them.

LONG, J., did not sit.

FREDERICA ABELE ET AL. V. SAMUEL MCGUIGAN,

AND

SAMUEL MCGUIGAN V. FREDERICA ABELE ET AL.

Eguity-Cotemporaneous instruments-Construction--Life-lease--Mortgage-Bona fide holder-Mortgage notes subject to equities before due, when-Foreclosure.

1. The purchaser of several notes, and of the accompanying mortgage, one of which notes is then dishonored, is put upon inquiry as to all of the notes, and takes them subject to existing equities, the notes and mortgage being one transaction between the same parties.

2. In this case a father conveyed his farm to his son by an unconditional deed, and the son mortgaged the same to his father to secure $1,400, payable in eight annual payments of $175 each, and at the same time executed to his father and mother a lease of the premises at a nominal rental of one dollar, the object of which lease was declared to be to secure to the lessees $175 per annum for eight years, until the sum of $1,400 was paid. The lease also contained an agreement that the father and mother should have the use of the farm, and as a home for them, during their natural lives. The son went into possession and supported his father and mother on the premises until his death, when his father ejected his daughter-in-law, claiming the right to the exclusive possession of the farm, under said agreement, during his natural life; and it is held

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that the instruments must all be construed together, and that the lease was intended as an additional security for the payment of the mortgage debt, and that the clause giving the parents the use of the farm during their lives was intended to insure to them a home on the farm while they lived. Questions of waste by the father, etc., are involved, and an examination of the opinion is essential to a full understanding of the case.

Appeal from Berrien. (O'Hara, J.) Argued October 24, 1889. Decided December 28, 1889.

Amount found

Original bill to restrain foreclosure of mortgage, and for accounting of rents and profits had by mortgagee. Cross-bill for foreclosure of mortgage, etc. Original complainants appeal from decree for foreclosure. due by circuit judge reduced, and decree entered for such reduced amount. The facts are stated in the opinion.

David E. Hinman and Edward Bacon, for complainants in original suit.

Lawrence E. Fyfe, for defendants in original suit.

MORSE, J. In March, 1869, Jonathan Rose, now deceased, was the owner of 80 acres of land in the township of Benton and county of Berrien, in this State. On the 3d day of that month he and his wife, Amelia Rose (now dead), executed and delivered to William J. Rose a warranty deed, without any conditions in said deed. William J. Rose was a son of Jonathan and Amelia, the husband of the complainant Frederica Abele, and the father of the complainants Rose. On the same day, William J. Rose and his wife gave back to Jonathan a mortgage upon the land to secure eight notes for $175 each, with 7 per cent. interest, payable annually. Each year thereafter one of these notes became due. The last one became due March 3, 1877. At the same time

William J. and wife also executed to Jonathan and wife a life-lease, which provided that the first parties granted, demised, and farm let the said land to the parties of the second part "for and during the natural life of Jonathan Rose and Amelia Rose, his wife," the parties of the second part yielding and paying unto the parties of the first part the sum of one dollar, and the first parties to pay all taxes and assessments upon the property, and further providing as follows:

"Now, the object of this lease is to secure to the parties of the second part the payment of $175 per annum for eight years, until the sum of $1,400 has been paid. And it is also agreed between the said parties that the said Jonathan Rose and Amelia Rose shall have the use of the farm, and as a home for them, during their

natural lives."

Immediately after the making of these papers, William J. Rose and family moved upon the farm, and William managed it as his own property, and supported his father and mother until he died, on March 21, 1871. Jonathan Rose then took the possession of the farm, as he claimed, under the life-lease, and ordered the widow of William from the premises, and she went. During this time some payments had been made on the mortgage,

and some

of the notes taken up.

March 4, 1874, Jona

than Rose assigned the mortgage and the remaining notes to Samuel McGuigan. In that year McGuigan began a foreclosure, by advertisement, of this mortgage.

July 30, 1874, the complainants, Frederica Abele and the children of William J. Rose, filed a bill in chancery in the circuit court for the county of Berrien, against Samuel McGuigan and Jonathan Rose, to enjoin said

foreclosure.

This is the first suit, entitled as above.

Jonathan Rose died in 1877, leaving McGuigan sole defendant. This action was still pending when, June 25,

78 MICH-27.

1881, McGuigan filed his bill in chancery to foreclose the mortgage. September 15, 1888, he filed an amended bill in the same suit, making Silas S. Davis and his wife, Jane Davis, parties thereto; alleging that they were in possession of the premises; claiming some rights therein. This amendment was made by stipulation of the parties, and in the same stipulation it was agreed that McGuigan's bill, as amended, should be considered as a crossbill in the first-entitled suit; and that the bill of complaint in that case should stand as the answer of the complainants in that cause to the cross-bill of said McGuigan; and that all claims and controversies between the parties should be finally ended and disposed of in the two suits as one suit; and that any competent court, in such suit, might decree affirmative relief to any party or parties entitled thereto.

Upon the pleadings, and under the proofs taken, the circuit court for the county of Berrien, in chancery, decreed, January 31, 1889, in favor of McGuigan. Said court found due upon the notes and mortgage the sum of $1,733, and decreed that the same be paid on or before May 1, 1889, together with the interest and costs, or the mortgaged premises be sold in the usual manner under foreclosures in chancery. The complainants appeal. The claim of Mrs. Abele and the Rose children, in their bill of complaint and in the testimony of Mrs. Abele, was that at the time these papers were executed Jonathan and Amelia Rose were aged and infirm, and desired to have William J. Rose and his wife come and reside on this land, and take care of them; that Jonathan agreed that if they would do so he would execute a complete conveyance of the land to William, for which the latter should pay him $1,600,-$200 down, and $1,400 in eight equal annual payments,-it being also the intent and agreement that William should manage and carry on

the farm as his own; that said papers were executed in pursuance of such agreement, and the $200 was paid down; that the farm was worth over $3,000, but that it was so deeded for the price of $1,600 because Jonathan had formerly been possessed of more land and property, which he had given to his other children, while he had given William nothing before this time; that the lease was not intended to give Jonathan or his wife possession. of the farm, and if, by its terms, it did so, it was a mistake; that the lease was intended for no other purpose than to secure the payment to them of $175 per year for eight years, and that it was intended that the full possession and use of the premises should vest in William J. and his heirs, and this was the understanding; that William J. Rose and family immediately moved upon the place, leaving a farm of his own in another township, and managed the farm, and took care of his father and mother, until his death; that it was supposed by all, until after his death, that he had the right to 80 use and control the farm.

About two weeks after his death, while the appraisers were there to inventory the property of William J. Rose, one of them called the attention of Jonathan Rose, his wife being then dead, to the peculiar phraseology of the life-lease as to the use of the farm. Until that time he had never made any claim to such use; but he then said that he should take control of the farm, and manage it while he lived. It is shown by the appraisers and others that he acknowledged the personal property, stock, and crops on the farm to be William's; and they were inventoried at first, and taken by the administratrix, his widow, as a part of his estate.

The bill of complaint alleges that the rental value of the farm when the writings were executed, and while William lived upon it, was worth more than $175 per