pied the lot between those lines for four years. Plaintiff offered other testimony tending to show that Collins, who then owned the land, some 21 or 22 years ago built a board fence on the line contended for by plaintiff herein; that the said fence was built with reference to a survey made at that time by one Bartlett, and on a line with stakes then standing; that the fence was maintained for 10 or 12 years; that the posts of said fence marked said line when plaintiff purchased, in 1885; that the west post of said fence is still standing; that, soon after said fence was built, a row of cherry trees was planted on a line about three feet north of said fence; that some of said trees were standing at the date of the trespass; and that lot 10 had been continuously occupied to the line of said fence since said fence was built. It further appeared that Tecumseh street was an old highway, originally four rods in width; that the fence along the northerly line of the land here platted had encroached upon said highway, and, when this plat was made, stood upon the line indicated by the dotted line; and that a stone stake, referred to in said plat, stood in said line at the west line of South street.

Defendant insists that the plat must control the description given in the declaration; that what plaintiff's evidence tends to show is that he has by adverse possession acquired title to a portion of lot 12, and under his declaration and disclaimer he cannot recover, in view of the rule in Twogood v. Hoyt, 42 Mich. 609, 613. It clearly appears, however, that the north line of the plat was not the old fence line in Tecumseh street, but the actual southern boundary of the highway; that the removal of that fence was contemplated; and it is evident that the measurements made by Bartlett were from the north line of the plat. The lots were sold from north to south. Pusey, as lots 8 and 10 were sold, assisted in locating the boundaries. He, as each was located, owned the lots south of the boundaries so fixed. The question in the present case is, what is the southern boundary of lot No.

10? and that is to be determined from the actual establishment of that line upon the ground, agreed upon by the adjacent proprietors, and long acquiesced in, rather than from a recent survey, dependent upon a different construction of the plat. In Twogood v. Hoyt, supra, the court say:

"The evidence offered upon this point would, however, be admissible as tending to show the location of the lands described in the declaration."

In Diehl v. Zanger, 39 Mich. 601, it was held that a resurvey, made after the monuments of the original survey have disappeared, is for the purpose of determining where they were, and not where they ought to have been; that a long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the disappearance of original monuments; and that long practical acquiescence in a boundary be tween the parties concerned may constitute such an agree ment on it as to be conclusive, even if it had been erroneously located. In Flynn v. Glenny, 51 Mich. 580, it was held that resurveys cannot be allowed to unsettle the lines of town lots after the lot owners have established such lines in accordance with stakes found planted, and in reliance on which they have purchased. The rule is well settled in this State that when parties by mutual agreement, and for that express purpose, meet and fix a boundary line, and thereafter acquiesce in the line so established, such line will be considered the true line, although the period of acquiescence fall short of the time fixed by the statute of limitations for gaining title by adverse possession. Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Mich. 332; Stewart v. Carleton, 31 Mich. 270; Burns v. Martin, 45 Mich. 22; Jones v. Pashby, 67 Mich. 459; Wilmarth v. Woodcock, 66 Mich. 331.

A number of assignments of error are predicated upon the theory that there was no testimony tending to show that Bartlett ever made a survey with reference to determining the location of lot 10, or that Collins ever

built a fence on the line of such survey. The witness La Longe testified that some 21 or 22 years ago Collins built a fence on the south side of lot 10, and that the fence was built with reference to Bartlett's survey, made at that time, and in line with stakes set. The competency of the witness does not seem to have been questioned. Another witness testified to the existence of stakes on the north line of lot 10.

Defendant moved for a new trial on the ground of newly-discovered evidence. The court denied the motion, and it is claimed that therein the court abused its discretion. The testimony suggested by the affidavits is principally cumulative. It was not claimed that Collins procured the Bartlett survey; on the contrary, the testimony tended to show that the survey had been made before Snyder bought. Collins says in his affidavit that in building the fence he was guided by stakes that he found standing. The testimony suggested is that of former owners of lot 10. We discover no abuse of discretion in the denial of the motion.

The judgment is affirmed.

The other Justices concurred.

TUDHOPE v. AVERY.

GUARDIAN AND WARD-ACCOUNTING.

A guardian who has kept no account of the expense of clothing and maintaining his ward, not having been called upon by the probate court to render annual accounts, may nevertheless be allowed a reasonable sum for such expendi tures, if acting in good faith.

Appeal from St. Clair; Vance, J. Submitted June 13, 1895. Decided July 2, 1895.

Bill by Nettie I. Tudhope against Lewis Potts, as surety upon the bond of complainant's deceased guardian, for an accounting in the matter of the guardianship. Defendant died pending a hearing, and the cause was revived in the name of his administrator, Joseph W. Avery. From a decree dismissing the bill, complainant appeals. Affirmed.

W. M. Cline, for complainant.

A. R. Avery and J. W. Avery, for defendant.

GRANT, J. After the decision in Tudhope v. Potts, 91 Mich. 490, in which we held that complainant could not maintain a suit at law against the surety until an accounting was had before a proper tribunal, she instituted this suit in equity for such accounting. The case was heard in open court, and decree entered that the guardian received $775, for which she was bound to account; that the expense of clothing and maintenance of her ward was $75 per year, of which onethird was furnished by the ward's grandmother and two-thirds by the guardian; that the guardian was entitled to credit at the rate of $50 per year for such expense; that annual rests be made, charging interest at 7 per cent. per annum until the guardian's death in 1886, and 4 per cent. after that, on account of the benefit accruing to the ward from the occupation of the premises; that she had received $542.90 from the estate of her guardian; that upon this basis the entire trust fund was exhausted, the complainant in debt to her guardian's estate, and that therefore her bill be dismissed.

We think the decree is fully justified by the proofs, which it would be profitless to state in this opinion. This is one of those cases where the guardian kept no account, and was not called upon by the probate court, as she should have been, to render annual accounts. But the

guardian acted in good faith, and $50 per year was a just and reasonable allowance.

Decree affirmed, with costs.

The other Justices concurred.

GLOBE CASKET MANUFACTURING CO. v. WOLCOTT.

1. FRAUDULENT CONVEYANCES-BILL OF SALE AS SECURITY-RIGHTS OF CREDITORS.

K. executed a bill of sale of his stock in trade to B. to secure him against loss on indorsements, with the understanding that B. should conduct the business until sufficient should be realized to satisfy the indebtedness upon which he was liable, and should then turn the stock over to K., or to the one then entitled thereto. B. having died, his administrator continued the business in the usual way for a time, and then gave a bill of sale of all his right, title, and interest in the stock to W., another creditor of K., in consideration of the payment by W. of the obligations upon which B. was liable and of the debts incurred in the conduct of the business. Held, that if the transfer to W. was intended to pass an absolute title, and the consideration paid was a fair one, other creditors of K. could maintain no right to the property, as such a sale was authorized under the bill of sale to B.

2. GARNISHMENT-COSTS.

The "costs and charges" to which a garnishee is entitled by the terms of 2 How. Stat. § 8098, upon his discharge, are such as may be fixed in the circuit court upon motion.

Error to Lenawee; Lane, J. Submitted June 14, 1895. Decided July 2, 1895.

Garnishment proceedings by the Globe Casket Manufacturing Company against Isaac C. Wolcott, as garnishee of John S. Kinney. From a judgment for the garnishee defendant, plaintiff brings error. Affirmed.

106 151 107 268