time of the death of the respective parties a number of the lots were unsold, and no accounting had been had between them. Complainant thereupon filed a bill for an accounting by defendants for the moneys received by their testator, and for a sale of the remainder of the lots, and an equal division of the net proceeds arising from such sale. And it is held that the trust was a continuing one, and that the rights of the parties cannot be properly adjusted except in a court of equity; following Nester v. Ross Estate, 98 Mich. 200. Appeal from Grand Traverse. (Ramsdell, J.) Submitted on briefs January 2, 1894. Decided February 12, 1894. Bill for an accounting. Defendants Barnes and Hatch appeal from an order overruling a demurrer. Decree affirmed, and defendants given 20 days in which to answer. The facts are stated in the opinion. Umlor & Pulcipher, for complainant. Hatch & Wilson, for appellants, contended: 1. The probate court has exclusive jurisdiction of the matter sought to be litigated in this case, and hence the bill will not lie; citing People v. Circuit Court, 11 Mich. 393; Patton v. Bostwick, 39 Id. 218; Shurbun v. Hooper, 40 Id. 503; Dickinson v. Seaver, 44 Id. 624; Patrick v. Howard, 47 Id. 40; Aldrich v. Annin, 54 Id. 230; Lafferty v. Bank, 76 Id. 35, 68; and the remedy in probate court is ample; citing In re Estate of Rathbone, 44 Mich. 57; Shelden v. Walbridge, Id. 251. LONG, J. The bill filed in this cause sets forth a contract between Smith Barnes and Wolcott F. Griffin, by the terms of which said Griffin was to plat and sell a certain tract of land, known and platted as the "Second Fernwood Addition to the City of Traverse City;" all moneys, including the purchase money and incidental expenses, to be furnished by said Barnes, he to be reimbursed by the moneys received from the first sales of lots, after which the parties were to divide the proceeds, share and share alike. It further alleges that said Griffin platted said addition, and sold a number of lots nearly sufficient to reimburse said Barnes for all moneys expended, and that said Griffin was afterwards debarred from a participation in the management of said business, which was thereafter controlled by said Barnes while living, and by his estate since his death. This bill was filed for the purpose of compelling the executors of the estate of said Barnes to come to an accounting for the proceeds derived from the sale of said real estate,-which, it is claimed, are held in trust for the complainant,-and to secure a sale by order of the court of the portions of said property remaining unsold, and to make a division of the proceeds. A general demurrer to the bill was filed by defendants Barnes and Hatch, and was overruled by the court below. From this order, defendants Barnes and Hatch appeal. It appears from the bill that, after the execution of this contract, and its partial performance by Griffin, Smith Barnes himself took, or pretended to take, the management of this property out of the hands of said Griffin, and himself sold several parcels or lots, taking the moneys therefor, but that no accounting has been had between the parties. It also appears that some 19 lots remain unsold. The contention of the defendants is that these matters can properly be adjusted in the probate court, and that complainant's claim should have been presented there, and that, therefore, it is not a case calling for the interposition of a court of equity. It seems, however, that the trust is a continuing one, and we think the rights of the parties cannot be properly adjusted except in a court of equity. A quantity of property remains yet unsold, according to the statements contained in the bill; and certainly the probate court, with its limited jurisdiction, would not be the proper forum to adjust the equities between the parties as to that part of the trust. We think the case is governed by Nester v. Ross Estate, 98 Mich. 200. The order of the court below must be affirmed, with costs. The defendants will have 20 days to answer the bill after notice of the entry of decree here. The other Justices concurred. JACOB FLOERSHEIM V. WILLIAM W. VOSBURGH. Statute of limitations-Payment—Evidence. In a suit upon an open account, against which the statute of limitations had run unless a payment had been made as testified by the plaintiff, a letter written by the defendant to the plaintiff about two years after the time the payment is claimed to have been made, asking for a statement of defendant's account, and stating that plaintiff knew that defendant had paid some on it, is admissible as bearing upon the question of such payment. Error to St. Joseph. (Loveridge, J.) Submitted on briefs January 2, 1894. Decided February 12, 1894. Assumpsit. Defendant brings error. Affirmed. The facts are stated in the opinion. S. M. Constantine, for appellant. Howell, Carr & Barnard, for plaintiff. LONG, J. This action was brought in justice's court, and, on appeal to the circuit, plaintiff had verdict and judg ment. The account, as claimed by the plaintiff, consisted of two items, one of September 25, 1882, for $128.94; and the other of December 8, 1882, for $63.75. A credit of $14.62 is given in December, 1882. Defendant did not admit any of the claims, but, his books having been burned, he was not able to state what the account was. He pleaded the statute of limitations. Plaintiff, to bring the case out of the statute, claimed on the trial that there was paid to him by defendant on October 23, 1885, the sum of $10 on this account. He offered in evidence a letter from defendant of October 29, 1887, as follows: "Messrs. J. FLOERSHEIM & Co. "Gentlemen: Will you please send me a statement of my account? You know I have paid some of it, and would like a statement." Plaintiff claimed that this letter showed an amount due him on this account, and that the statement in the letter related, not only to credits given in the year 1882, but also to the $10 credit of 1885. This question was submitted to the jury, and they were instructed substantially that they could consider this with other evidence, and, if they found that the defendant made the payment to plaintiff of the $10, October 23, 1885, to apply on the account, such payment would keep the account alive, and entitle plaintiff to recover. This raised the principal question in the case. We think the court was not in error in letting the jury consider this letter with the other evidence, as bearing upon the question of credits. Plaintiff testified positively to the payment of the $10 as of that date. Defendant denied the payment, and it was a question for the jury to determine whether it was made or not. The letter had some bearing upon that subject. Some other questions are raised, which we do not deem it important to discuss. We have examined the record carefully, and find no error, and it would not be profitable to discuss all the errors assigned upon the admission and rejection of evidence. Judgment must be affirmed. The other Justices concurred. JOSEPH W. FREESE V. OTIS ARNOLD. Landlord and tenant-Division of crops-Mistake—Replevin. 1. Where a written lease provides for the division of grain grown upon shares by a certain method, which is not followed, it is competent for the tenant to show, in a suit to recover an alleged excess of grain received by the landlord, that the landlord assented to the division as made. 2. Where, in the division of grain grown upon shares, the landlord, by mistake, receives more than his share, the tenant may, upon his refusal to deliver the excess, replevy the same. Error to St. Joseph. briefs January 2, 1894. (Loveridge, J.) Submitted on Decided February 12, 1894. Replevin. Defendant brings error. Affirmed. The facts are stated in the opinion. S. M. Constantine, for appellant. Howell, Carr & Barnard, for plaintiff. HOOKER, J. The plaintiff was a cropper of defendant's land. By the terms of his written contract, the wheat was to be divided at the machine, the defendant to receive alternate half bushels. Ten hundred and fifty-six bushels of wheat was divided. By mutual assent this provision was not followed, and a division was made in another way, by which the plaintiff claims that the defendant received 50 bushels, machine measure, more than his share. He demanded 25 bushels, and was refused, whereupon he brought replevin. It was proper to admit testimony tending to show the method of dividing the wheat, and that it was done by the assent of the defendant. He had a right to insist upon |