had come to Daniel and the defendant and had separated them. Before leaving defendant, Daniel conveyed the premises to her by quitclaim deed. Subsequently, for the purpose of promoting a reconciliation between them, defendant caused the premises to be conveyed to herself and Daniel as an entirety. The peace pact was soon broken by dissension, and Daniel again left defendant. She then sought a decree of divorce, which was granted, and with it the title to the entire premises. A few days after the divorce was granted, she changed her name by marriage to Butler. After the divorce was granted, defendant, aided by her son, paid the balance due upon the mortgage, amounting to $585, the major portion of which came from the avails of the farm. In August, 1908, complainant had reached the age of 72 years, and, feeling that she could no longer work as she had done, she demanded of the defendant that from then on she must have the income which was reserved to her by the agreement. The defendant professed not to have any knowledge that any such agreement was ever made, and refused to comply with complainant's demand, whereupon this bill was filed to enforce her rights under the agreement. After a hearing in the cause was had, the trial court denied her the relief prayed, and held that:

"Upon a consideration of the entire case as it appears to me from the proof, I am of the opinion that complainant has no legal rights in the land in question and that it would be inequitable and unjust to burden the land with such a lien as complainant claims. The contract under which she asserts her claims is a personal one as against her son Daniel O., and cannot be enforced against the land, or against the defendant. There is no proof showing knowledge on the part of the defendant of the existence of the contract under which complainant claims and I am satisfied she had no knowledge of it. It is very probable that, had she known it, she would not have paid the Allen mortgage and had it discharged. It seems to me it would be inequitable, after the long silence of the complainant as to her claims and rights, permitting the payment and discharge of the mortgage, in ignorance of

her claim, to further burden the land with the claimed accumulated yearly lien upon the land for all these years, and with the further burden of an annual incumbrance on the same equal to one-third of all crops and proceeds raised on the same. I not only feel that this would be inequitable and unjust, but further than that, I do not think she has a legal claim under her contract with her son as against this land, or the defendant."

While the agreement which Daniel gave to his mother was a personal one and did not in terms provide for a lien, it was one in which a court of equity might have very properly ordered an accounting and made the amount found due thereon a lien on the premises while they were owned by Daniel or any subsequent purchaser who had notice of the agreement. Baker v. Baker, 157 Mich. 76

(121 N. W. 287).

Complainant does not ask for an accounting for the time that she was away, but only from the time of her demand in August, 1908. We think she is entitled to this relief. Complainant surrendered her interest in the estate to enable Daniel to raise money to purchase the interest of his brother George, and we think the mortgage and agreement were executed under such circumstances that defendant could not have been ignorant of the agreement. Such readjustments of property rights in families are usually preceded by much discussion, and the testimony of James would indicate that this case was no exception. He testified that the agreement was discussed by members of the family in defendant's presence. Defendant claims that she thought the $50 paid to complainant for her share in the personal property was in payment of her interest in the estate. If she was sincere in this claim, she must have been very curious afterward to know by what right complainant continued to occupy and keep possession of her apartment in the dwelling. Complainant never surrendered the possession of her apartment in the dwelling. This was notice to defendant that complainant had some rights there, and it was then her duty to learn what they

were.

But aside from this question, defendant was not a bona fide purchaser. The conveyance was a voluntary one. And as she paid nothing for it, she would take the premises subject to the outstanding equities against it. Peters v. Cartier, 80 Mich. 124 (45 N. W. 73, 20 Am. St. Rep. 508); Otis v. Kennedy, 107 Mich. 312 (65 N. W. 219); Hoffman v. Simpson, 121 Mich. 501 (80 N. W. 1133); Zeigler v. Coal Co., 150 Mich. 82 (113 N. W. 775, 13 Am. & Eng. Ann. Cas. 90).

We conclude that defendant has no equities which ought to be preferred to those of complainant. Complainant is entitled to have her rights under the agreement enforced. If the parties are unable to agree as to the value of one-third the crops raised since complainant's demand in 1908, an accounting thereof will be taken under the direction of the trial court, and, when determined by the court or by an agreement, the amount will be made a lien on the premises until paid.

The decree of the lower court will be reversed, with costs to complainant of both courts.

MCALVAY, BROOKE, STONE, and OSTRANDER, JJ., concurred.

HOUSER v. CARMODY.

1. DAMAGES-PLEADING-BREACH OF PROMISE OF MARRIAGE. General allegations of damage are sufficient to warrant a recovery for physical and mental suffering resulting from breach of promise of marriage.

2. APPEAL AND ERROR-EXCEPTIONS-SAVING QUESTIONS FOR RE

VIEW.

An exception to the ruling of the trial court in passing on the admissibility of evidence is necessary on error.

3. EVIDENCE-WITNESSES-IMPEACHMENT-DEPOSITION. Testimony tending to show unusual or suspicious conduct of a witness whose testimony was taken by deposition was properly received in evidence, in an action for breach of promise, as affecting the credibility of the witness; since he was not present in court and his conduct could not be observed by the jury.

4. SAME.

Where the witness claimed to have been unduly intimate with plaintiff, and on his cross-examination a foundation was laid for impeachment by asking witness if he had bought a ring for plaintiff of a jeweler to whom he made disrespectful remarks concerning plaintiff, the jeweler was correctly permitted to give testimony in contradiction of the witness' denial, and plaintiff to show that she had been notified about the remarks made by the witness and had asked for an explanation and ceased to associate with him afterwards.

5. BREACH OF MARRIAGE PROMISE

SEDUCTION.

INSTRUCTIONS TO JURY

In an action for breach of promise of marriage and seduction, wherein it was claimed by defendant that plaintiff had been unchaste after the marriage contract was alleged to have been made, defendant denying making such a promise, the court properly refused to charge, as requested, that such conduct constituted a defense to the action, if proved, and rightly instructed the jury that it could only be considered in mitigation of damages.

6. SAME.

Error was not committed by the trial court in further charging, as requested by defendant, that the claimed misconduct of plaintiff would be an excuse for breach of the contract only if defendant learned of the misconduct of plaintiff and because of it refused to marry her, but where, on being advised by defendant's counsel that he did not make any such contention, the court corrected the inadvertence and left the evidence to be considered in mitigation of damages only.

7. SAME.

The court was also correct in charging the jury and was supported in the same by her testimony, that if the jury found after an admitted lapse from virtue she had retrieved her

character and led a correct life until defendant seduced her under promise of marriage, she could recover.1

8. SAME-CHARGE.

An erroneous assumption of the court made in charging the jury, corrected at the instance of defendant's counsel and again made, but passed unnoticed, held, not to have misled the jury.

9. SAME-NEW TRIAL.

A new trial is only authorized on the ground of newly discovered evidence if the moving party exercised due diligence in attempting to secure it.

10. SAME TRIAL-CONDUot of Counsel.

Alleged objectionable and impassioned argument is not ground for reversal, unless it clearly appears that the argument was unwarranted by the evidence and probably contributed to the result: plaintiff's attorneys were entitled to comment on defendant's income, and amount of property and on plaintiff's loss of social position, luxuries, etc.

Error to Berrien; Des Voignes, J. Submitted April 5, 1911. (Docket No. 18.) Decided December 17, 1912.

Assumpsit by Mary Houser against Thomas Carmody for breach of promise of marriage. Judgment for plaintiff. Defendant brings error. Affirmed.

Gore & Harvey, for appellant.

Cady & Andrews (Chas. E. Sweet, of counsel), for appellee.

MCALVAY, J. This was an action for damages for breach of promise to marry and seduction, in which plaintiff recovered a substantial judgment. The case is before us for review upon writ of error.

The proofs show without dispute that plaintiff was an unmarried woman about 27 years old, employed as a telephone operator at Watervliet, Berrien county, and lived

'As to evidence of character for chastity in action for breach of promise, see note in 14 L. R. A. (N. S.) 748.

On the question of aggravation of damages in breach of promise case by seduction, see notes in 4 L. R. A. (N. S.) 616; 36 L. R. A. (N. S.) 388.

For necessity of averring seduction in order to recover therefor, see note in 33 L. R. A. (N. S.) 702.