lection. They became alarmed, and, in the afternoon of that day, consulted with Mr. Mills as to what was the best course to pursue, and the probable effect of the filing of the mortgages upon their credit. An assignment was talked of, and they were advised that it would be necessary to call a meeting of the directors to authorize such assignment. They, however, left the office without coming to any conclusion. A meeting of the directors was, however, held that evening, and the assignment authorized. On Tuesday morning, June 6th, they again went to the office of Osborn & Mills, where the assignment was prepared by Mr. Mills, executed by the president and secretary of the corporation, and filed by Mr. Mills at noon of that day. The mortgages were filed at 11:40 p. m., June 5th.

It is urged that this is a circumstance showing a concerted action, and connecting the execution of the mortgages with the assignment. Mr. Osborn, however, says that he took charge of the mortgages after their execution; that he was very busy during the day; that, being mayor of the city and president of the council, he went to the council that evening; that the city clerk was clerk of the council; that, when he arrived at the council chamber, he told the clerk that he had some papers to file, and wished to be reminded of the fact at the adjournment of the council; that, immediately after the adjournment of the council, the papers were filed. Wagner, Merrill, and Osborn all testify positively that there was no talk concerning an assignment, and that they had no knowledge that an assignment was contemplated, until after the execution and delivery of the mortgages. Winans testified that the assignment was not contemplated or thought of until after the execution and delivery of the mortgages. Mills says that nothing was said about au assignment until Monday afternoon, after the execution and delivery of the mortgages, and that, so far as he

knew, the assignment was not determined upon until Tuesday morning.

It is more than probable that the relationship between Winans and Pratt and Wagner and Merrill may have induced both Wagner and Merrill to extend a line of credit to the corporation beyond what they would have done in the absence of that relationship, and to place more reliance upon the representations made by the officers of the corporation as to its financial status than they otherwise would have done, and there is testimony tending to show fraudulent conduct on the part of the officers of the corporation with respect to the annual reports. filed in January, 1892, and January, 1893; but the testimony does not warrant the inference that either Wagner or Merrill was a party to any scheme to defraud the creditors of the corporation. Fraud or guilty knowledge is not to be presumed from the mere fact of relationship. It cannot be said upon this record that the execution of the mortgages and the assignment were one collusive transaction, so as to constitute the same an assignment with preferences. It has repeatedly been held that it is lawful for even a creditor who has knowledge of the intention of a debtor to make an assignment to attempt to secure his debt before the execution of the assignment, and the further knowledge on his part that such action will postpone or perhaps cut off the claims of other creditors will not make a mortgage taken as such security fraudulent, even though the creditor also knows that the debtor consents to give it because of an expectation on his part that it will shield him, so long as there is no collusive assistance rendered by the creditor with that object in view. Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329; National Bank of Oshkosh v. First National Bank of Ironwood, 100 Mich. 485; Austin v. First National Bank of Kalamazoo, Id. 613.

The chattel mortgages were executed by the president and secretary of the corporation, and with the knowl

edge and consent of all the stockholders. Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332.

The question of the validity of the assignment is not involved here.

The decree is affirmed, with costs to defendants.

LONG, GRANT, and MONTGOMERY, JJ., concurred. HOOKER, J., did not sit.

CRAWFORD v. SCHNEIDER.

BUILDING CONTRACT-SPECIFIC PERFORMANCE-CONVEYANCE AS SE-
CURITY.

Complainant, being the owner of a land contract, entered into
a written agreement with defendant's assignor whereby the
latter was to erect a building upon the premises for a
specified sum, pay the balance of the purchase price to the
vendor, take a conveyance from him, and convey to com-
plainant upon repayment of these amounts. The land was
deeded to the defendant, who executed a mortgage thereon
pursuant to authority conferred by the agreement, and con-
structed a building which did not conform to the require-
ments of the contract, and could not be made to do so
without the practical destruction of the building. Upon a
bill setting forth the facts, and praying for specific per-
formance and for general relief, the court decreed that de-
fendant cause the mortgage to be discharged; that he
remove the building from the premises, and restore them to
their former condition; and that he deed the same to com-
plainant upon repayment of the amount paid upon the land
contract; or, instead, that he accept a compromise proposi-
tion tendered by complainant. Held:

(1) That complainant could not be required to accept the building.

(2) That the provision of the decree relative to the removal of the building was inserted for the benefit of defendant, and might be waived, and the building continue to be a part of the realty.

(3) That, the enforcement of specific performance being impracticable, and the defendant manifesting no purpose of performing the contract according to its terms, the relief granted was proper, and was justified under the pleadings.

Appeal from Wayne; Hosmer, J. Submitted May 2, 1895. Decided July 9, 1895.

Bill by Sarah Crawford against Emanuel Schneider and others for specific performance of contract. From a decree for complainant, defendant Schneider appeals. Affirmed.

Lemuel H. Foster, for complainant:

Specific performance of a building contract will be enforced where there is no other adequate remedy. Dester v. Ross, 85 Mich. 370; Stuyvesant v. New York, 11 Paige, 414; Birchett v. Bolling, 5 Munf. 442; McCorkle v. Brown, 9 Smedes & M. 167; Voorhees v. De Meyer, 2 Barb. 37; Shaw v. Livermore, 2 G. Greene, 338; Leicester Piano Co. v. Improvement Co., 5 C. C. A. 68.

Moores & Goff, for appellant:

Under a prayer for specific performance, the decree entered was unauthorized. Converse v. Blumrich, 14 Mich. 110; Hubbard v. Winsor, 15 Mich. 146; Payne v. Avery, 21 Mich. 524; Harwood v. Underwood, 28 Mich. 427; Rudd v. Rudd, 33 Mich. 101.

A court of equity will not enter into the execution of construction contracts. Beck v. Allison, 56 N. Y. 366; Railway Co. v. Rust, 17 Fed. Rep. 275; Oregonian R. Co. v. Oregon R. & N. Co, 37 Fed. Rep. 733; Blanchard v. Railroad Co., 31 Mich. 43.

MONTGOMERY, J. The complainant was the owner of a land contract made by one James S. Goodrich, covering a lot situated at the south-east corner of Seventh and Irving streets, in Detroit. After the purchase, she made improvements upon the lot and a dwelling house standing on the rear of the lot, facing on Irving street, so that the lot and improvements were worth $2,500 to $3,000; and there remained unpaid on the purchase price $784.

On the 12th of November, 1892, she entered into a contract with George W. Myers, of Detroit, an architect and builder, whereby he agreed to erect on the front portion of the lot, fronting Seventh street, a double frame house, built according to certain plans and specifications, for the sum of $3,850, to be paid in monthly installments. beginning at the time when it was expected the house would be finished. It was agreed that Myers should pay off the $784, and take a deed from Goodrich of the premises, and give complainant a contract for the conveyance of the same to her upon payment of the contract price for the house and the amount paid on the contract. On the 15th of November, 1892, she entered into a contract with Myers whereby he agreed, for a consideration of $4,628, which was the contract price of the house and the balance due on the Goodrich contract, to be paid in monthly installments, according to the terms of the contract, to convey the premises to her. The contract contained a clause authorizing Myers to mortgage the premises. Myers did not build the house, but assigned the contract to defendant Emmanuel Schneider, the appellant, and on December 21, 1892, the premises were conveyed to Schneider, who, in turn, mortgaged them for $2,500, Schneider undertaking the performance of the contract for the building of the house made between complainant and Myers.

There is no pretense that the house which was constructed corresponded in all respects to the house provided for in the specifications and contract between complainant and Myers. On the contrary, the circuit judge found that the departures from the contract were so great, both in the quality and size of the timbers and materials used, and in the quality of the workmanship, that the house cannot be made to comply with the specifications without the practical destruction of the building. This finding is amply supported by the testimony. The joists throughout the house are two inches narrower than specified. The rafters are two by four instead of