*1 Bump. Newman they thought the title to the land between could hold edge. line and the water’s Neither of the meander any investigation to have made as seems them They legal mistaken as were parties where both circumstances, law. Under knowledge no mis- notice contracted plain- alleged proven, representation or fraud relief. not entitled tiff is correct think court was the trial decree

We costs. affirmed, with should J., and Wxest, Fellows, JJ., concurred. v. POWERS-TYSON CO. ELECTROTYPE RAPIDS GRAND CORPORATION. Mortgages Sales Contracts —Contradic- —Conditional Chattel tory Provisions. . retaining machinery, title sale of

A contract giving option of two remedies for, and it the paid seller credit repossess the default, one to in ease use, wear, and and the other made by obtaining and sale vendor’s foreclose latter a chattel by reason of the passed at retained and mortgage, title cannot be since unrecorded, is void as to creditors time, where same buyer. (Major L.), Sub- Appeal Kent; Dunham from (Docket January No. 58, Calendar 1929. mitted Rehearing 34,134.) March Decided No. 20, 1929. June denied Rapids Electrotype Company

Bill tbe Grand against, tbe ap- *2 pointment of a receiver and the sale of certain ma- chinery. The inter- claiming machinery. vened title to said Prom an dismissing petition, appeals. intervener Affirmed.

Gallagher, appellant. Shulman S Abrams, Nor Convin, Cook, cross <& for defendant. Rapids Electrotype The Grand Com- Potter, corporation, pany, Michigan general a a creditor of Powers-Tyson Corporation, corpora- a Delaware Powers-Tyson against Corpora- a bill filed tion, appointed claiming to a receiver should be tion manage settle collect business, the defendant’s The to defendant. over the balance bills, its foreign cor- for a dissolution not ask bill did plaintiff poration; awas not claim did .proceedings receiver were for a creditor; any ancillary against other suit defendant. not consenting to a re- filed an answer The defendant appointed a receiver and the ceiver, Ostrander-Sey- Powers-Tyson Corporation. The sought Company recover intervened mour machinery by the receiver Corporation, claimed title. which intervener re- not entitled to intervener is contends receiver though contract there is a clause because cover purporting title in the to retain mortgage, ais the instrument statute, having in accordance filed been Company voidable, general only creditor. a Corp. Co. People, In1. ex rel. Port Huron, etc., R. Judge,

St. Clair Circuit management directors other board of corporation having general authority manage a concerns, vested law with the discre- tionary power carry that can exist in one to corporate management the not be business; and such can- chancery, assumed court of vested receiver; a except neither can be taken from board, proceedings instituted wind corporation Comp. under the statutes. Laws chaps. -207. 206 and ‘‘ appointment, parte, ex a receiver to man- corporate granting an business, injunction in like manner on an ex *3 parte application, whereby the control of the busi- ness is taken from the directors, are more than irregular, the be entirely beyond and are void, as power may of court; are such an abuse as

required to be corrected mandamus. nullity attempts rights by of such to divest parte and ex orders was somewhat con People sidered in Salling v. Simonson, 10 Mich. Barry v. 25 Johnson, Mich. 489. See, also, Briggs, 22 v. Mich. 201.” complaint jurisdiction

The bill conferred no appoint the court to a receiver.

Many jurisdictions cases from other cited to show the consent of the jurisdiction

was effective to confer on the court appoint a receiver. If the* forth in the bill facts set complaint jurisdiction do not confer on appoint receiver, defendant’s consent something ar- confer it. A court more than an by agreement parties. can bitrator chosen judicially only jurisdiction of the act when it has

672 245 subject-matter controversy; otherwise it acts prejudicially. subject-matter Jurisdiction of the given by especially cannot be consent, where the Carpenter, law has withheld it. Allen v. (35 Rep.

25; v. Hoxie, Kirkwood Mich. 62 Am. St. 549); Savings Peninsular Bank Ward, 118 Mich. 87; Hull, Hull v. 149 Mich. 500; v. Brad Bradfield n (129 Rep. 468); Am. field, 154 Mich. St. Masle People Anderson, Meloche, Mich. 536. appoint proceedings to a receiver of the Corporation jurisdic- were without void.

tion and between 2. The contract Corporation pro- Company and the : vided “Upon of either default notes said

said successors same upon may commence suit waiver Ostrander- not be a which shall Company’s and and Seymour title to the said may this contract be retaken the same judgment is obtained said satisfy property may be sold to notes when said said any deficiency and if there be such same shall be valid claim undersigned; against give the intention of this said, of *4 property and credit remedies, two one to take the prop- payment in full and tear of said use, for wear erty, to foreclose a vendor’s other, obtaining property. judgment and sale of the * * * expressly “it understood and agreed that under the title to the said shall the circumstances remain in said its successors or until all of said in- notes are cancelled and delivered and said paid in full.” debtedness Powers-Tyson Corp. Co. v. passed “Title cannot be retained and at the same Spacing time.” Thomas Machine Co. Central Burroughs Trust 223 Mich. 164, 169. See, also, Adding Wieselberg, Machine Co. Apartment Co., Mich.

In re Parkstone Viergiver, In Nelson may reserve to the “A sale contract conditional may give him It inconsistent

seller two election to sue retalce or to property. possession how- cannot, He property, If he to retake the ever, do both. elects any part of the he cannot recover con- so, price brings if he hand, tract suit. On the other cannot thereafter him, suit to recover debt due he possession. right cannot He his to retake assert recover a price title to while the yet thing in him.” sold remains Wieselberg, Adding Burroughs Machine Co. v. In supra, said: pay- right retain retake compute dam-

ments estimate wear made, agreed deficiency buyer for look to the price instru- with remedies is consonant security providing of a in nature ments security mortgage; a case the for in such due from aof debt but an incident buyer to the seller.” dismissing intervener’s that the follows petition affirmed, with costs. must second I the result concur

Sharpe, reason stated. J., Fellows, Wiest, JJ., concurred J..