Wells, his widow, and John Coak, Jane E. Pitt, George Coak and Mary Ann Coak, his children and heirs at law, living at the time of his death. In 1861 the widow married the defendant Alfred Wells. It appears that in 1867 the widow and heirs made or agreed upon a division of the inheritance setting off parcels to each. No dower had ever been assigned. By this agreement, which is very general in its terms but sufficiently definite to identify the several parcels, the eight acres in dispute were designated as the portion which the defendant Eleanor Wells was to have. A deed was introduced dated June 1, 1867, and acknowledged September 6, of the same year, by which Eleanor Wells, John W. Coak, Jane E. Pitts and George Coak, in consideration of one dollar, quitclaimed to Mary A. Coak eighteen acres of land, which it is conceded includes the eight acres involved in this suit. Notwithstanding this deed the defendants went into possession of the eight acres and used and cultivated the same, and have held exclusive possession thereof ever since, and have exercised acts of ownership over the land, such as building a house and fencing the premises off from the other land in accordance with the division agreed upon and a survey thereof made soon after the deed was executed. The chain of title comes to this plaintiff through mesne conveyances from Mary A. Coak, but the proof is clear that each and all of the intermediate grantees have recognized their possession and have taken no steps to oust them until plaintiff commenced proceedings against them. On the trial defendants claimed the land by adverse possession. The circuit judge refused to submit the facts testified to, tending to prove adverse possession, to the jury, and directed a verdict for the plaintiff. The circuit judge regarded the case as governed by the cases of Bloomer v. Henderson 8 Mich. 395 and Dawson v. Danbury Bank 15 Mich. 489. In this we think he erred. The facts proved brought this case within the principles enunciated in Bower v. Earl 18 Mich. 367, in which the two former cases are distinguished and it is needless to repeat what was there said. The testimony should have been submitted to the jury to determine whether the defense of title by adverse possession had been made out. The judgment must be reversed and a new trial granted. The other Justices concurred. GATES P. NOYES ET AL. v. GEORGE W. SOUTHWORTH. Wills-Revocation by marriage. A woman's will is not revoked by her subsequent marriage so long, at least, as no children are born. Error to Branch. (Pealer, J.) Oct. 14.-Oct. 22. Proceedings for probate of will. Affirmed. Contestant brings error. C. N. Legg and John B. Shipman for appellant. Marriage revokes a will: Shepard v. Shepard 7 John. Ch. 57; Tyler v. Tyler 19 Ill. 151; American Board v. Nelson 72 Ill. 564; In re Tuller 79 Ill. 99; Duryea v. Duryea 85 Ill. 41. Charles Upson for appellees. CAMPBELL, J. This is a contest over the will of Cynthia Southworth, made while she was a widow, before her marriage with appellant, and never revoked. Appellant contests it on the sole ground that her subsequent marriage to him was a revocation in law. The will was made July 27, 1881, she being childless, and all the estate of which she was possessed at her death was owned before she married contestant. They were married February 21, 1882, and she died without children September 28, 1882. Both the probate and circuit courts of Branch county, where she had resided, sustained the will. Laying aside such decisions as are made under statutes, the only foundation which has been suggested for holding a woman's marriage to operate as an implied revocation is the common-law rule to that effect, which was based on the effect of marriage on a woman's property and testamentary capacity. By marriage her personalty devolved on her husband, and left nothing for a will to operate on, unless, possibly, such rights in action as should not be reduced to possession during coverture. So it was further held that she could make no testamentary provision during coverture relating to her own property without her husband's concurrence, and this would prevent a revocation, as well as any other testamentary act; and a will cannot be recognized which is not subject to revocation by the testator. These were reasons enough to maintian the common-law doctrine. And the exceptions show that these were the only reasons, for they only extended to wills under powers of appointment, and devises which were suspended during coverture and revived by the husband's death. These doctrines are elementary, and a general reference to the authorities cited on the argument will suffice. See especially for the old doctrine, Forse & Hembling's Case 4 Coke 61 and notes to modern editions, and the reference to Plowden 343; also 4 Kent's Comm. 523-527. Our Constitution has done away with all the disabilities of coverture on this head, and expressly authorized every married woman to make wills of her estate as if she were sole. This leaves her case to be governed by the same rule which would apply to any one else on change of condition. Apart from some decisions based on statutory or peculiar local usages, the doctrine is quite uniform that marriage alone, without birth of issue, will not revoke a man's will. It may be doubtful whether, under our statutes concerning children born subsequently, the birth of issue would have the same significance. That question is not before us. But there is no sound reason that we can perceive why, in the absence of statute, implied revocations should be extended, or should be differently treated as between men and women, when the property rights of married women have ceased to be hampered by marriage. We do not think the case calls for the discussion of any doctrines which are not based on the rules and reasons of the common law, and which, when we depart from these, would lead into conjectural and uncertain results. We think the will was not revoked, and the judgments below to that effect must be affirmed, with costs against contestant. The other Justices concurred. WILLIAM H. SHIER V. GEORGE H. PRENTIS ET AL. 1. A foreclosure sale is illegal if made without notice to defendants before the date fixed by the decree for the payment, in default of which sale may be made. 2. The right of defendant in foreclosure to all the time the decree allows him for making payment, cannot be presumed waived in order to sustain a sale prematurely made without notice to him. Appeal from Wayne. (Speed, J.) Oct 15.-Oct. 22. Petition to require payment of deficiency on foreclosure. Complainant appeals. Affirmed. J. G. Dickinson for complainant. Henry M. Cheever for defendant Prentis. Both advertisement and sale on foreclosure must follow the service of subpœna by a full year: Chan. Rule 92; Detroit F. & M. Ins. Co. v. Rentz 33 Mich. 298; Culver v. McKeown 43 Mich. 324; Burt v. Thomas 49 Mich. 464. CAMPBELL, J. Under a foreclosure decree in this case, it was provided that defendant should pay the sum due by March 15, 1883, and in default of payment that the premises. might be thereafter sold. Instead of pursuing this decree, the circuit court commissioner advertised on the 21st of December, 1882, and sold on February 3, 1883, and an order nisi was entered February 23, 1883. No notice of any of these matters was given defendants. The commissioner reported a deficiency. On application for execution these facts appeared, and the court below refused to grant it, and complainant appeals. The sale was premature and illegal, and defendants cannot be deemed to have waived any right, when they were not bound to suppose any sale could be had or report filed prematurely. The case is too plain to bear discussion. The order must be affirmed with costs. The other Justices concurred. 55 176 68 421 55 176 77 155 176 HENRY E. PARKER V. ADDISON ARMSTRONG, ARTHUR B S20NW 892 55 130 1180 155 176 145 2635 ARMSTRONG AND LUMAN CASE. Pleading-Declaration-Cause of action-Variance-False pretenses. 1. A declaration must be fatally defective that sets up no sufficient cause of action. 2. Testimony that is not within the averments of the pleading is objectionable. 3. A declaration for false pretenses must show (1) what they were; (2) Error to Genesee. (Newton, J.) Oct. 15.-Oct. 22. Reversed. Long & Gold and Geer & Williams for appellants. As to the form of the declaration referred to: Stoflet v. Marker 34 Mich. 314; and as to the gist of the action on false pretenses: Marsh v. Falker 40 N. Y. 562; McKown v. Furga |