was fraudulent as to his creditors. The court, however, refused to permit the attorneys for the defendant to go into such inquiry. We do not think that the court erred in excluding this testimony. The creditors of Stephen Collar are not before the court, or making any complaint of the conveyance by Stephen Collar to Jacob Thorne, and we do not think that the inquiry is material to the issue before the court. It appears in the case that a creditor of Stephen Collar proceeded by attachment against him, and levied upon his interest in the lands in question, and obtained a judgment against him in the State of New York, and levied upon and sold his interest in said lands at public auction, by which the judgment was fully satisfied, the judgment creditor being Joseph S. Secor. The land was bid off at the sheriff's sale by one Isaac Secor, and in due time he received the sheriff's deed therefor. It appears also that the proceedings in the attachment suit, so far as service upon the defendant, Stephen Collar, was concerned, was a substituted service, no personal service upon the defendant having been acquired in the State of New York, and it was claimed on the part of the defendant in this suit that the sheriff's deed conveyed to Isaac Secor all the interest which the plaintiff, Stephen Collar, had in such land. The deed of the sheriff bears date the 29th day of December, 1870, being prior in time to the deed of Stephen Collar to Jacob Thorne; and therefore the defendant in this suit claims that, at the time of the execution of the deed to Thorne, Stephen Collar had no interest whatever to convey, and conveyed nothing whatever by such deed. It appears, further, that Sylvester Collar acquired the interest of Isaac Secor under the sheriffs' deed by purchase and conveyance from him to Sylvester dated the 25th day of April, 1877. He also obtained a deed from Thorne and wife dated December 6, 1876. Stephen Collar contends that the court in the State of New York obtained no jurisdiction in the suit, and that the sheriffs' deed is invalid, and did not extinguish his title to the land. The circuit judge charged the jury that he was of opinion that the sheriff's deed did extinguish the title of Stephen Collar to the land, but further instructed the jury that, if he insisted that he had a claim upon the land after the sheriff's deed, even after he had conveyed to Thorne and he to Sylvester Collar, such claim would constitute a good consideration for the promise of Hamblin D. Collar to pay him the sum of $225 for such interest. We held, when the case was here before, that where lands were conveyed under a parol trust to sell and convert into money, and divide the proceeds, and the trust had been so far executed by the trustee as to sell the land and receive the money, and such trust had been recognized by him, an action for money had and received would lie to recover such money by the person entitled thereto. Collar v. Collar, 75 Mich. 414. And in Bitely v. Bitely, 85 Mich. 227 (at the April Term of this court) we held also that parol evidence was admissible to prove that land was conveyed to sell and divide the proceeds among the heirs. In White v. Cleaver, 75 Mich. 17, we held that such a trust was not within the provisions of the Statute of Frauds. Such testimony was admitted upon the trial of this case, but upon this trial it appeared, upon the examination of the plaintiff, that there was a writing having reference to four of the conveyances by the heirs to Sylvester Collar which the plaintiff signed, and that it was sent by Henry to the heirs in Kent County; that this writing was for the purpose of fixing up and to sell the place so as to divide the money with the four heirs, namely, Hamblin, Cameron, Mary, and himself. When this fact appeared, such writing was the best evidence. It defined the trust, and all parol evidence respecting the trust, upon which Sylvester obtained the deeds from such heir, should have been excluded. There was no sufficient showing of the loss of such writing as to permit the introduction of parol evidence of its contents. Such parol evidence, when introduced, was objected to, and when it appeared later that there existed such writing, such objections became effective. It appears that such writing did not include or provide for all the heirs, but it did include the plaintiff, and measured the rights of those who were parties to it and Sylvester Collar. The plaintiff also testified that at his talk with the defendant on May 18, 1886, he represented these same four heirs, and wanted to settle only for those four interests. It is very important that it should appear what agreement Sylvester had with those four heirs, and the writing is the best evidence of that. The parol testimony tended to show that the trust which Sylvester assumed was not a trust in land, but a trust arising out of the disposition of land conveyed to him for a specific purpose. It was a trust arising out of the confidence reposed in him by the heirs in conveying their interest to him, without any other consideration to them than that he should dispose of the land, and divide the proceeds pro rata among them. The agreement was executory and contemplated action on the part of Sylvester. He was to acquire the interests of all the heirs, and sell and convert the real estate into money, and pay over to each his pro rata share. So far as the agreement relating to the purchase and disposition of real estate rested in parol, it was void under the Statute of Frauds. Wright v. King, Harr. Ch. 12; Bernard v. Bougard, Id. 130; Trask v. Green, 9 Mich. 358; Newton v. Sly, 15 Mich. 391; Cobb v. Cook, 49 Mich. 11; Pulford v. Morton, 62 Mich. 25; Shafter v. Huntington, 53 Mich. 310. It was only after Sylvester had proceeded in the execution of the parol agreement, and had obtained title of all the heirs, and converted the real estate into money, that the trust would arise, founded upon equity and good conscience, to pay over the proceeds; and, before such trust could be enforced at law, some new promise must have been made, and his duty to pay over must have been disclosed by this record. It is not shown that the defendant acquired conveyances from Sylvester's heirs for the same purpose as Sylvester had obtained deeds from the heirs; nor is it shown that he recognized the rights of all the other heirs to a share of the proceeds of sale of the land. On the contrary, it now appears that the agreement under which Stephen Collar claims an interest through Sylvester was in writing, defining the purposes for which Sylvester received the conveyances entered into between four of the heirs, including the plaintiff, and it was with reference to these same four heirs that the original promise to pay $225 was made on May 18, 1886. The judgment must be reversed, and a new trial ordered. The other Justices concurred. Alice B. CANFIELD, Appt., v. Great Camp of the KNIGHTS OF MACCA- (........Mich.........) A benefit society may lawfully provide that death claims shall be finally deNOTE.-Mutual benefit associations; binding effect of their judiciary decisions. Where private beneficial associations adopt laws affirmatively recognized before an action | interest in his hands." Such is not the case could be maintained. Calder v. Moran, 49 Mich. 17. But what becomes of the remedy of the heirs so deeding, if the grantee dies before performance on his part of those provisions which are void by the Statute of Frauds, and before the property is converted into person alty, so that a trust can attach? At such time it is not such a trust as equity will lay hold of, and appoint a new trustee to carry out the parol trusts which are void by the Statute of Frauds. The most that can be said in such a case is that the parties have voluntarily conveyed away their interest in the real estate, and placed it beyond recall. They would have been in the same predicament as if Sylvester Collar, after having obtained the absolute deeds of conveyances from all the heirs, had refused to sell or convey the land, or further perform the parol agreement. The heirs could not have compelled a specific performance, because the parol agreement is void under the Statute of Frauds. Sylvester Collar died before the parol trust attached, and the rights of the heirs to have a performance died with him. It was said by Mr. Justice Campbell in Bulen v. Granger, 56 Mich. 208: “As our statutes have abolished the old doctrine of resulting trusts, a person who deliberately conveys land to a wife or other relative stands in no better condition as to enforcing such a trust than anyone else." The plaintiff could not have maintained this action against the heirs of Sylvester Collar, even though they had sold the fifty-five acres for $3,000 and received the money. The land was incumbered by no trust when it descended to them. It does not become subject to any trust in the hands of the purchaser from them, nor does such purchaser owe to the heirs any duty arising out of the original parol agreement between Sylvester and the heirs. But, if there was an express trust evidence in writing, other considerations obtain, and what the rights and remedies of the parties would be in such a case depends entirely upon the writing; and, until that is produced or established with sufficient certainty, it is impossible to determine whether the present action could be maintained or not. When the case was here before, the opinion was based upon the statement that "in 1880 Sylvester Collar died, not having executed the trust or conveyed said lands, and afterwards the defendant, Hamblin D. Collar, obtained a conveyance of said lands from the heirs of Sylvester Collar, deceased, which included the interest of the plaintiff which had been conveyed to Thorne, and afterwards to Sylvester for the same purpose. It was also proposed to be shown that the defendant obtained the whole title to this land from the heirs of Sylvester, and that he knew his brother had taken the title to the land for the purpose of thus distributing the proceeds, and that, although he had recognized the rights of all the other heirs, and paid them on the basis of the agreement made with the plaintiff, of May 18, 1886, he had not paid the plaintiff, and refused to recognize his rights in any funds, though he has the funds representing that for their government to be administered by themselves, to which everyone who joins them consents, the decisions of their tribunals under such laws are binding upon the courts of the State. Osceola Tribe, No. 11 I. O. of R. M. v. Schmidt, 57 Md. 98. See Black & White Smith's Soc. v. Vandyke, 2 Whart. 309; Logan Tribe, I. O. of R. M. v. Schwartz, 19 Md. 565. If a by-law is reasonable and valid, not oppressive or against public policy, it forms part of the contract and the member is bound by its terms. See Allnutt v. Subsidiary High Court of U. S. A. O. of F. 62 Mich. 110. With voluntary associations, the court, before it will interfere, must see that it is under obligations to act, and that it can effectually act in the premises. Ellison v. Bignold, 2 Jac. & W. 503. Where there are no property rights the court will not interfere at all. Rigby v. Connol, 28 Week. Rep. 650. Courts should not as a general rule interfere with the contentions of voluntary associations so ministered; the remedy for grievances should be long as the government is fairly and honestly adsought in the first instance in their rules and regulations. Lafond v. Deems, 81 N. Y. 507; Fischer v. Raab, 57 How. Pr. 87. The officers of a medical society, as to the question of expulsion of a member, are to that extent a court, and chancery is not the proper tribunal to correct their errors and irregularities. Gregg v. Massachusetts Med. Soc. 111 Mass. 185. But courts are not bound by decisions made by such officials concerning the force and effect of contracts of the association. Manson v. Grand Lodge A. O. U. W. 30 Minn. 509. Power of benevolent associations to make bylaws. See note to Supreme Lodge, K. of P. v. Knight (Ind.) 3 L. R. A. 409. Death claims of deceased members. See note to Lawler v. Murphy (Conn.) 8 L. R. A. 113. APPEAL by plaintiff, on a case made from a judgment of the Circuit Court for Macomb County, in favor of defendant in an action brought to recover the amount alleged to be due on a benefit certificate issued to plaintiff's husband for her benefit. Affirmed. The facts sufficiently appear in the opinion. Messrs. Eldredge & Spier, for appellant: A by-law or constitutional provision which undertakes to make the decision of a tribunal, created of its own members, and therefore interested, conclusive upon a claim of a beneficiary, made pursuant to a certificate, in the nature of a policy of insurance upon the life of a member, is unreasonable, against public policy, and void. Austin v. Searing, 16 N. Y. 112-123; Bauer v. Samson Lodge, K. of P. 102 Ind. 262. Such restrictive provisions are repugnant to art. 6 of the Constitution of this State. The judicial power is vested in certain courts, and consists of the power to hear and determine controversies between adverse parties, and questions in litigation. Story, Const. § 1640 et seq. This power can only be conferred upon courts. Re Buddington, 29 Mich. 472-474; Rowe v. Rowe, 28 Mich. 353; Risser v. Hoyt, 53 Mich. 185-193; Underwood v. McDuffee, 15 Mich. 361. In Home Ins. Co. of New York v. Morse, 87 U. S. 20 Wall. 445, 22 L. ed. 365, even the statute of a State, aimed to restrict the right of insurance companies of other States to remove suits against it to the United States courts, was held unconstitutional and void. The effect of these restrictive provisions of defendant, if held valid, would be to deprive the claimant of property of the right to a jury trial. A statute having that effect cannot be sustained. Edwards v. Symons, 8 West. Rep. 784, 65 Mich. 348-354, and cases cited; Wood v. Humphrey, 114 Mass. 184-186. It is not in the power of the parties to a contract (by a general arbitration clause) to oust the courts of their jurisdiction. Mentz v. Armenia F. Ins. Co. 79 Pa. 478, 21 Am. Rep. 80. land St. V. De P. Soc. 6 West. Rep. 132, 63 Mich. 378; Arthur v. Oddfellows Ben. Asso. of Columbus, 29 Ohio St. 557, 560; Osceola Tribe No. 11, 1. O. of R. M. v. Schmidt, 57 Md. 106. to be paid any part of the fund provided for The rights of a member or his beneficiary the benefit of the widow and orphan is governed entirely by his benefit certificate and the constitution, laws, and regulations of the order. The parties are bound by just such contracts as they make which are free from fraud or illegality. Courts cannot make contracts for parties or render a party liable on a different basis from that upon which his liability is mutually stipulated for. Lorscher v. Supreme Lodge K. of H. 2 L. R. A. 206, 72 Mich. 326. Where one has a claim against an association like defendant, under its laws, which has been disputed and decided adversely by the proper tribunal acting under the laws of the order, a court of law has no jurisdiction as he is concluded by the forum of his choice. Anacosta Tribe No 12, 1. O. of R. M. v. Murbach, 13 Md. 91; Osceola Tribe No. 11, 1. O. of R. M. v. Schmidt, 57 Md. 98; Yoram v. Howard Ben. Asso. 4 Pa. 519; Poultney v. Bachman, 31 Hun, 49; Lafond v. Deems, 81 N. Y. 507; Harrington v. Workingmen's Ben. Asso. 70 Ga. 340, 27 Alb. L. J. 438; Black & White Smith's Soc. v. Van Dyke, 2 Whart. 309; Sperry's App. 116 Pa. 391; McAlees v. Supreme Sitting Order of Iron Hall (Pa.) 12 Cent. Rep. 415; Woolsey v. Independent O. of 0. F. Lodge No. 23, 61 Iowa,492; Harrison v. Hoyle, 24Ohio St. 254; Van Poucke v. Netherland St. V. De P. Soc. supra; Elliott v. Royal Exch. Assur. Co. L. R. 2 Exch. 237; Dawson v. Fitzgerald, L. R. 1 Exch. Div. 257. The exact point at issue was before the court in Rood v. Railway Pass. & Freight C. Mut. Ben. Asso. 31 Fed. Rep. 62, where the court said it was certainly competent for the members of this association to agree among themselves that the action of their board of directors in reference to any claim presented against the association should be final. This view has been practically adopted by our court. Van Poucke v. Netherland St. V. De P. Soc. supra, Lorscher v. Supreme Lodge K. of H. 2 L. R. A. 206, 76 Mich. 326. Plaintiff not being a member of the order cannot assail this law, as she can recover only under the provisions regulating the membership of her deceased husband. This attack cannot be sustained, because if it was admitted that the rule of the association is bad as a bylaw, it may be good as a contract. Ang. & A. Corp. par. 342; Austin v. SearThe rule we contend for is enforced in Kist-ing, 16 N. Y. 112; Goddard v. St. Louis Merler v. Indianapolis & St. L. R. Co. 88 Ind. chants Exch, 78 Mo. 609. 460. Messrs. Markey & Hall, for appellee: The laws, by-laws, rules, regulations and constitution of the order are binding upon the members. Grant, J., delivered the opinion of the court: This case was tried by the court, and the finding contains the following material facts; Niblack, Mut. Ben. Soc. par. 12; Bacon, Defendant is a mutual benefit association inBen. Soc. & Life Ins. pars. 69, 79, 81; Hirschl, corporated under Act 89, Pub. Acts 1883, for Law of Fraternities & Societies, p. 33; Mora- the improvement morally, socially, and intelwetz, Priv. Corp. par. 491; May, Ins. par. 426; lectually of its members, and for the purpose Union Mut. Aid Asso. v. Montgomery, 14 West. of establishing a benefit fund, from which shall Rep. 877, 70 Mich. 586; Van Poucke v. Nether-be paid a certain sum to the member, or his 1891. LILLIBRIDGE V. LACKAWANNA COAL CO. widow, or certain other relatives, as he may the grand camp, which also disallowed the It is claimed on behalf of plaintiff that the The other Justices concurred. A grantor in fee of coal underlying his NOTE.-Conveyance of mineral beneath surface of The minerals beneath the surface of land may be A demise of coal under the surface of a specified piece of land is a sale of the coal. Fairchild v. Fairchild (Pa.) 7 Cent. Rep. 873. The grant of a right to mine coal in the land of the lessor and remove it therefrom is a grant of an interest in the land itself, and not a mere license to take the coal. Hope's App. (Pa.) 2 Cent. Rep. 43. same cannot, at least before the vein has been ex- (Sterrett, McCollum and Mitchell, JJ., dissent., (October 5, 1891,) Where grantee contracted to pay a specified price per ton, the instrument was a sale of the coal notwithstanding the parties contracted as "lessor and lessee." Delaware, L. & W. R. Co. v. Sanderson, 109 Pa. 583, 1 Cent. Rep. 102. Such interest of the lessee is property liable to sale on judgment and execution, as real estate. ed. 1009. Hyatt v. Vincennes Nat. Bank, 113 U. S. 408, 28 L. A sale of coal to be mined with houses, shops, shutes, drums, etc., and other appurtenances, with no covenant to repair or return such appurtenances, carries title to such articles. Montooth v. Gamble, 123 Pa. 240. APPEAL by Pleas for Lack of PPEAL by complainants from a decree of wanna County in favor of defendant in a suit brought to enjoin the use of tunnels under complainants' land for the mining of coal underlying lands adjoining those of complainants. Affirmed. The facts are stated in the opinion. The great rule of interpretation, with respect to deeds and contracts, is to put such a construction upon them as will effectuate the intention of the parties, if such intention be consistent with the principles of law. Hollingsworth v. Fry, 4 U. S. 4 Dall. 345, 1 L. ed. 860; Stæver v. Stæver, 9 Serg. & R. 450; Doe v. Burt, 1 T. R. 701. As the coal was mined out and removed, there resulted an "open way" a "space,' or a chamber," through, under and across the plaintiff's property. The roof above, the floor below, the "chamber" between, each and all were real estate. One may own a chamber even in a house as his separate real estate. Doe v. Burt, supra; Loring v. Bacon, 4 Mass. 575; South Cong. Meeting House Proprs. v. Lowell, 1 Met. 541; Cheeseborough v. Green, 10 Conn. 318. Plaintiffs were the owners of this real estate. It cannot be said that they conveyed it away when they executed the so-called lease. If the plaintiffs were reversioners of the "chamber," they certainly could maintain an action for the violation of any of their rights in connection with it. The degree of damage was wholly immaterial. Ripka v. Sergeant, 7 Watts & S. 9; Pastorius v. Fisher, 1 Rawle, 27; Seneca R. Co. v. Auburn & Rochester R. Co. 5 Hill, 170. A grant of a part of an owner's premises, as of the coal under the surface, or a mine, will carry with it and create such easements as may Under an absolute sale of coal for a gross sum, and to enable purchasers to mine and remove the coal and leasing a few acres till the coal is exhausted, grantees and their assigns have the whole term to mine and remove the coal. Consolidated Coal Co. v. Schmisseur, 135 Ill. 371. matter of the grant; thus a grant of coal in a be necessary for the attainment of the subject place creates an easement of entrance and mining and carrying away. Ewing v. Sandoval C. & Min. Co. 110 Ill. 290; Marvin v. Brewster Iron Min. Co. 55 N. Y. 538. But an easement in, over, or through land, must be restricted to the purpose for which it was granted; and ownership of the easement will not justify the use of the land, in, or through which it exists, for other purposes. Kaler v. Beaman, 49 Me. 207; Noyes ▼. Hemphill, 58 N. H. 536; Valley Falls Co. v. Dolan, 9 R. I. 489. And the burden of a servient tenement must not be increased by new or extended methods of use not strictly deducible from the grant. Washb. Real Prop. bk. 2, p. 280; Chestnut Hill Spring House Turnp. Co. v. Piper, 77 Pa. 432; Richardson v. Clements, 89 Pa. 503. If one who has a way for one purpose makes use of it for another, he becomes a trespasser as much as though he had no easement at all in the land. Cowling v. Higginson, 4 Mees. & W. 245 Ballard v. Dyson, 1 Taunt. 279. Where one who was the owner of a two-acre mowing lot, and had a right of way across another's land adjoining it, for the purpose of bringing away hay, purchased another lot adjoining the last, from which he carried hay over the land of the other also, though mixed with hay from his two-acre lot, he was held to be a trespasser. Howell v. King, 1 Mod. 190; Davenport v. Lamson, 21 Pick. 72. See Garritt v. Sharp, 3 Ad. & El. 325. Where Miller, by writing, sold all the coal under a tract of land, with privilege to the vendee to use the railroad, tenements and other improvements of Miller, McCloskey, the vendee, to remove the coal in forty years; at the estate will be subject to the law of descent, devise, and conveyance. Kincaid v. McGowan, 88 Ky, 91. The right to minerals, timber, and a mill-site, reserved to the grantor in conveyance of certain parcels of land, will not pass by his subsequent conveyance of the whole tract, expressly except Under a contract of sale of coal binding a pur-ing the parcels previously conveyed. lbid. chaser to mine and remove a certain quantity yearly "or pay for the same as though mined after proving that a certain quantity was mined plaintiff must prove that it was shipped and not sold at the mines. Bestwick v. Ormsby Coal Co. 129 Pa. 592. Liability of owner of surface land, and of the min One having the exclusive right to mine coal upon a tract of land has the right of possession, even as against the owner of the soil, so far as is necessary to carry on his mining operations. Benavides v. Hunt, 79 Tex. 383. A purchaser under a contract, who has delivered up a deed of release, is liable for the coal mined thereon according to the contract so long as he remains in possession. Bestwick v. Ormsby Coal Co. supra. Rights of owner of surface and of mineral. The owner of the surface has a right to actual support for his soil, and the owner of the coal has a right to take out the coal in any way he pleases, so that he supports the surface in its ancient condition. Gumbert v. Kilgore (Pa.) 6 Cent. Rep. 406. A grantor of the fee of the surface of land may reserve an estate in fee in the minerals, and each eral. Where the surface is owned by one person and the coal by another, the former is liable in trespass for mining without a license. Ashman v. Wigton (Pa.) 9 Cent. Rep. 629. The lessors of coal lands are liable for taxes assessed on the unmined coal as well as on the surface lands, under a clause in the lease that they "shall pay all taxes on lands hereby leased," the lessees to pay taxes on the coal after it is mined. Miles v. Delaware & H. Canal Co. 140 Pa. 623. Where the lessors engage to pay all the taxes imposed upon coal in the ground, this obligation is not affected by a subsequent deed of a part of the surface of the ground to the lessee, or by the fact that the courts subsequently held that the lease was in effect a sale of the coal. Woodward v. Delaware, L. & W. R. Co. (Pa.) 22 W. N. C. 292. The owner of the coal is liable to the owner of the surface, if a spring is ruined through his failure to properly support the surface. Gumbert v. Kilgore (Pa.) 6 Cent. Rep. 406. |