The plaintiff further answering paragraph ........ of the cross-bill, says that the said Celestine and Elginas Boissonneault at the time of the purchase of said lands did not pay their one-half interest in full and that they are indebted to the plaintiff in the sum of two hundred and fifty dollars and the interest on said sum from the date of said contract exhibited herein as part of the plaintiff's bill of complaint.

The plaintiff denies that the defendant is entitled to any relief against him by reason of anything in said cross-bill contained, and prays that the same may be dismissed with his costs in this behalf sustained.

Dated January 14, 1919.

John J. O'Hara,

Attorney for plaintiff. Business address: Menominee, Mich.

(g) Decree.-(Caption.) At a session of said court held at the court house in the City of Menominee on the 7th day of August, 1919.

Present: Hon. Richard C. Flannigan, Circuit Judge.

Appearances: John J. O'Hara, attorney for plaintiff; N. C. Spencer, attorney for defendant.

This cause having come on to be heard in open court upon the bill of complaint, the amendments thereto, and the answer and cross-bill of the defendants, and the court having heard the arguments of counsel of the respective parties, does find that the material allegations of said bill of complaint as amended have been sustained by clear and convincing proof; and it appearing to the court that the land contract heretofore on the 26th day of November, 1913, executed by the plaintiff to Celestine and Elginas Boissonneault, as described in said bill of complaint, was intended as security that the said plaintiff would pay to John

Gasman the remaining portion of the purchase price of said lands, and that the plaintiff would convey an undivided one-half of said lands to said Celestine and Elgines Boissonneault; it further appearing to the court that the plaintiff has paid to the said John Gasman the remaining portion of the purchase price of said lands, and that the said lands have been by the said John Gasman duly conveyed to the plaintiff, and it also appearing that the defendant Menazip Perron is purchaser and owner of all the right, title and interest at any time had or possessed by said Celestine and Elginas Boissonneault in and to said lands thereupon.

On motion of John J. O'Hara, attorney for plaintiff, it is ordered, adjudged and decreed that the plaintiff and the defendant Menazip Perron, are tenants in common of the lands and premises described in said bill of complaint, and said contract, and that said tenancy in common is an undivided one-half interest in the plaintiff and an undivided one-half interest in the defendant, Menazip Perron, and dates from and after the 26th day of August, A. D. 1918, the date upon which Celestine Boissonneault and Elginas Boissonneault conveyed their one-half interest In said lands by quit-claim deed to said Menazip Perron; and it further ordered, adjudged and decreed that the plaintiff do convey an undivided one-half of said lands to the said defendant Menazip Perron which said conveyance, however, shall be without prejudice to the right of the plaintiff to recover for one-half the value of any timber heretofore cut or taken from said lands by the said defendant; and it is ordered that in default of such conveyance on the part of the plaintiff to the said defendant; then that this decree shall be held to operate as such conveyance and leave is granted to record this decree in the office of the Register of Deeds of Menominee County, where said lands are situated.

And the attorneys for the respective parties stipulating in open court that the recent acts and doings of the defendant, Menazip Perron, in relation to the lands described in said bill of complaint are such that a partition and accounting could be more advantageously had and more equitably adjusted between the parties, by the plaintiff, if he elect so to do, filing and commencing a new suit setting forth such new matters and recent happenings, all occurring subsequent to the present suit, and the plaintiff being content to have partition of the said lands deferred to and left for determination in a subsequent suit to be commenced thereupon the plaintiff's prayer for partition in the present suit is denied without prejudice.

And it is further ordered, adjudged and decreed that the defendant, Menazip Perron, pay to the plaintiff or his attorney, the costs in this suit to be taxed, and that the plaintiff have execution for the same.

Richard C. Flannigan,

Circuit Judge.

Examined, countersigned and entered by me: Carl A. Anderson, Clerk of court.

(h) Authorities Cited by Plaintiff. Brief for Plaintiff.-1. Parol evidence is not admissible to vary or contradict terms of a written instrument, Adair v. Adair, 5 Mich. 203, and mistake as to the legal effect of an instrument constitutes no ground for relief. Martin v. Hamlin, 18 Mich. 353; White v. Smith, 37 Mich. 290, where parties, in unambiguous language, declare in a written instrument itself, the purpose of an agreement, and neither fraud nor mistake is claimed in the pleadings, it cannot be varied by parol. Baker v. Baird, 79 Mich. 255; Price v. Martin, 122 Mich. 655; Crane v. Bayley, 126 Mich. 323.

Evidence is not admissible which, conceding the existence and delivery of the contract or obligation, and that it was at one time effective, seeks to nullify, modify or change the character of the obligation itself, by showing that it is to cease to be effective or is to have an, effect different from that stated therein, upon certain conditions or contingencies, for this does vary or contradict the terms of the writing. Smith v. Mathis, 114 Mich. 262; Ogooshevitz v. Arnold, 197 Mich. 203.

In the last cited case the trial court found that the actual contract between the parties was not embodied in the written instrument. This court said:

"The contract being complete in itself, unambiguous, certain in its terms, no fraud or mistake being alleged in the pleadings, it was error to receive evidence contradicting its provisions, or tending to show that it did not embody the agreements of the parties."