provided for, and the council hears appeals. Id. §§ 8-10. (Local Acts 1877, pp. 158-160; Local Acts 1891, pp. 526, 527.) Apparently all proceedings in this case were reg ular, and complainant's right to relief depends upon the jurisdiction of the board of review and council to act in the premises upon its land. It is said that there is no jurisdiction in cases where the land is occupied for railway purposes and is used only for tracks. In other words, where the premises will not be benefited, the proceedings are said to be void for want of jurisdiction. If we could say, as a legal proposition, that all railroad lands are exempt from assessments, or that all such lands except depot grounds are exempt, then we might say that this land should have been excluded from the assessment district by the council as not subject to assessment. But we have held that railroad lands are subject to local burdens where benefited, and whether benefited or not, and how much, are questions of fact. The owner has the right to a hearing upon appeal when he feels aggrieved at the assessment, but, unless we are to say that all persons who think that their property is not benefited may ask the court of chancery to review the decision of the commissioners and council upon the facts, the determination of the council must be considered final upon the subject. To hold that there is no jurisdiction where there are no benefits would make the jurisdiction of the board depend upon whether a court of chancery could be induced, under different proofs, to dif fer from the board in its opinion as to benefits. This land was determined to be a part of the assessment district by the council. It was their province to determine that question. The board determined that it would be benefited. This was within their prescribed duties, and was subject to an appeal, which complainant did not avail itself of. If it was a fact that the premises were benefited, complainant's land should be assessed; if not, 106 MICH.-2. it should not have been. The decision of this question by the tribunal to which it was confided should be final. South Park Com'rs v. Railroad Co., 107 Ill. 105; Brown v. City of Grand Rapids, 83 Mich. 107. The decree of the superior court should be reversed, and a decree entered here perpetually restraining the sale of the premises named in the bill of complaint. MCGRATH, C. J., concurred with HOOKER, J. GARDNER v. GARDNER. 1. DEED-CONSIDERATION-SUIT FOR PURCHASE PRICE. The consideration recited in a deed is not conclusive in an action by the vendor for the purchase price. 2. VENDOR AND VENDEE-PUBLIC SALE-PRIOR AGREEMENT AS TO PURCHASE PRICE-STATUTE OF FRAUDS-INTEREST OF INFANT. Plaintiff and her minor daughter owned certain land. Proceedings having been taken in chancery to sell the minor's interest, plaintiff agreed with defendant that, if he should purchase at the sale, at which a complete title was to be offered, he could have the land for a specified sum, regardless of the amount of his bid, plaintiff's share to be computed accordingly. Held: (1) That plaintiff, having conveyed to defendant, who bid in the premises at a price in excess of that agreed upon, could not, in an action for the purchase price, recover upon the basis of the sum bid, on the ground that the agreement, being verbal, was void under the statute of frauds. (2) That, as the minor's share was to be computed upon the amount bid, the agreement tended to defraud no one, and was binding upon the plaintiff. Error to St. Clair; Eldredge, J., presiding. Submitted May 8, 1895. Decided July 2, 1895. Assumpsit by Jennie Gardner against John W. Gardner for the puchase price of land sold and conveyed. From a judgment for defendant, plaintiff brings error. Affirmed. Atkinson & Wolcott, for appellant. Avery Bros. & Walsh, for appellee. LONG, J. Plaintiff and her daughter, a minor, were the owners in fee of 80 acres of land. Proceedings were taken in the circuit court in chancery of St. Clair county to sell the minor's interest. The lands were offered for sale, and sold, and bid in by William Gardner at either $2,900 or $3,000. Some dissatisfaction seems to have arisen over the amount of the bid. John W. Gardner was desirous of purchasing the land. He and William Gardner, the first purchaser, were brothers; and Jennie Gardner, the plaintiff here, is the widow of their deceased brother, James. Plaintiff claims that John W. Gardner came to her, and wanted the first sale set aside, as he wanted to purchase the land, and that an agreement was then entered into between them that he was to have the place at $3,200, on condition that he would let his brother William have the old place, which he had bought of William, at $3,200. The defendant claimed that the price agreed upon was $3,100, and that he was to have it for that price, whatever he might bid it in for at the public sale. There seems to have been ill-feeling between the two brothers, and at the sale they each bid until it was struck off to the defendant at the sum of $3,600. Defendant contends that under the agreement the minor's interest was to be paid in full in accordance with the bid, but the amount going to the plaintiff was to be computed upon the sum of $3,100. There was a mortgage on the farm of $1,706.96. After this was deducted, it appears that there was paid to the guardian of the minor her full share, computed upon the bid of $3,600. The amount which defendant claimed was going to the widow was computed upon the basis of $3,100, and paid. The court charged the jury that there was an agreement made by which the defendant was to have the land at either $3,100 or $3,200, and that such agreement was binding upon the plaintiff, and that "You should first determine whether the price to be paid was $3,100 or $3,200, and you will deduct from the price agreed upon, as you shall find it, the sum required to pay the mortgage, which is practically conceded to be $1,706.96. From the sum left after such deduction you will deduct the sum fixed as the share in the sum bid belonging to the minor, to wit, $941.24. From the sum still remaining you will further deduct such sums as the evidence satisfies you have been paid by the defendant to Mr. Jenks for the plaintiff, or to plaintiff herself, as payments on the land. And if you find, after these deductions, that the defendant has paid the full sum agreed upon as the sum to be paid in gross for the land, your verdict should be for the defendant. If he has not paid the full sum, then your verdict should be for the balance found due, with interest." The jury returned a verdict in favor of defendant. 1. Counsel for plaintiff contend that there was no price agreed upon between the parties, and that, therefore, the plaintiff was entitled to recover upon the basis of the bid of $3,600. There was evidence of an agreement, the defendant contended, at $3,100; the plaintiff, at $3,200. The jury found with the defendant. 2. It is claimed that the plaintiff agreed to the price only upon condition that the defendant should sell his farm to his brother William for $3,200, and that, such condition not being fulfilled, the defendant cannot now have advantage of the price stipulated. This was not a condition which would inure to the plaintiff's benefit, and the only evidence offered to show that it was not fulfilled was in asking the plaintiff if she knew whether the defendant had made the deed to William. No further. offer was made; and we regard it as wholly immaterial, if there had been, as no such claim is made in the declaration. 3. It is contended further that the oral agreement was void, under the statute of frauds, and that, therefore, plaintiff was not estopped from asserting her right to the full consideration recited in her deed. The consideration recited in a deed is not conclusive, but can afterwards be inquired into. Mowrey v. Vandling, 9 Mich. 39; Shotwell v. Harrison, 22 Mich. 410. The case does not fall within the statute of frauds. The conveyance has been made. It is not a suit upon an oral contract for the sale of land, but an action for the purchase price. 4. It is further contended that the defendant's position is a fraud upon the guardian, upon the court confirming the sale, and upon William Gardner, who bid $3,550. We can hardly understand how such an arrangement tended to defraud any one. The lands were to be put up at public auction. The highest bidder would take the premises. By the agreement with plaintiff the defendant was at liberty to bid any amount he chose. The more he bid, the more the minor would receive for her share. The agreement related to the plaintiff's interest only. This she had the right to sell at any amount she might agree upon. We find no error in the record. Judgment affirmed. The other Justices concurred. WALKER 1. CADY. 106 21 106 21 1. FRAUDULENT CONVEYANCES-BILL BY ADMINISTRATOR OF GRANTOR d119 195 -SUFFICIENCY. Where a bill to set aside a conveyance as in fraud of the 106 21 125 549 |