Collins v. Lamotte

• Decision Date: 24 October 1928
• Docket Number: No. 8.,8.
• Parties: COLLINS v. LAMOTTE. COLLINS et al. v. SAME.
• Court: Michigan Supreme Court

244 Mich. 504

221 N.W. 635

COLLINS

v.LAMOTTE.

COLLINS et al.

v.SAME.

No. 8.

Supreme Court of Michigan.

Oct. 24, 1928.

Appeal from Circuit Court, Wayne County, in Chancery; Harry J. Dingeman, Judge.

Bills by Alice D. Collins, by her guardian, George W. Bycroft, and by Frank E. Collins and another, against Esther E. Lamotte. From the decree, plaintiffs appeal. Decree vacated, and a new one ordered, with directions.

Argued before the Entire Bench.Frank D. Andrus and Samuel Shimans, both of Detroit, for appellants.

Prentis, Pugh, Fitch & Carpenter, of Detroit, for appellee.

FEAD, C. J.

These actions, heard together, are primarily to set aside a deed executed by Elmer E. Collins to defendant, with accounting for dower rights of his widow.

Elmer E. Collins was a policeman. In 1893, his wife, plaintiff Alice D. Collins, became insane, and was committed to a state hospital, where she remained until her death on April 7, 1927, after appeal herein. Plaintiffs Frank E. Collins and Ethel Collins Drew are their children and only heirs.

On November 7, 1901, at Toledo, Ohio, Elmer E. Collins went through a form of marriage ceremony with defendant. They lived together in Detroit until his sudden death on May 21, 1916. She testified she then first learned that their marriage was invalid. In the probate of his estate, she presented a claim for services as his housekeeper, and was awarded $4,952.

Four days after the Toledo ceremony, Collins had a deed to property, which he had been buying on contract, taken in defendant's maiden name. This property was sold in August, 1907, and the proceeds deposited in a bank account established by him in 1903 and afterward made joint with defendant. In 1903, when Collins was absent for three months, he left the property in charge of his son.

On January 4, 1905, the lot at bar was deeded to defendant in her name of Esther E. Lamotte, and she gave back a purchase-money mortgage for part of the consideration. The next day she executed a deed of the premises to Collins, signing ‘Miss Esther E. Lamotte.’ This deed was not recorded until October 11, 1909. On the latter date, Collins recorded the instrument and executed to defendant, in the name of Esther E. Lamotte, a warranty deed of the premises. This deed was recorded by defendant ten days after Collins' death. On December 4, 1907, defendant, as ‘Esther E. Lamotte,’ executed a $2,400 mortgage on the lot. A duplex dwelling house was erected within the next year, costing between $5,000 and $6,000. Since Collins' death, defendant has lived in the building, has collected the rents, and expended about $3,000 in repairs and improvements.

These actions were commenced December 22, 1925. Plaintiffs seek to set aside the deed of October 11, 1909, from Collins to defendant on the grounds that it was without consideration and was never delivered to her. By way of cross-bill, defendant asks that her deed of January 5, 1905, to Collins be declared void for want of delivery and also for fraud of Collins in concealing the fact of his former subsisting marriage.

Considerable testimony, incompetent because equally within the knowledge of the deceased, was received by the chancellor for return to this court under 3 Comp. Laws 1915, § 12493. Plaintiffs' counsel cross-examined defendant upon the testimony so taken. They confined themselves closely to the matters brought out on direct examination. Such cross-examination was not a waiver of the statute. Counsel did not announce that the cross-examination was for return. The safer practice is to make the purpose clear on the record both as to examination and cross-examination. Otherwise waiver may occur.

[3] Delivery of a deed will be presumed from its possession by the grantee, Dawson v. Hall, 2 Mich. 390;Wilbur v. Grover, 140 Mich. 187, 103 N. W. 583, or from the fact that the deed has been recorded, Murphey v. Township of Lee, 239 Mich. 551, 214 N. W. 957, even though it be recorded after grantor's death. Barras v. Barras, 192 Mich. 584, 159 N. W. 147. The presumption is rebuttable, and, where assailed by adverse evidence. the burden of proof is ordinarily on the person relying on the deed. Barras v. Barras, supra.

Eliminating the incompetent testimony, delivery of the deeds was not shown by any direct evidence. At the hearing on her claim against Collins' estate, defendant testified that she had found the deed from him to her among his papers, and that she did not know of it until after he died. This declaration of defendant rebutted the presumption of delivery from the recording. When the surrounding circumstances are taken into consideration, it is evident that it was Collins' purpose to hold title in himself during his lifetime and to make testamentary disposition of the property to defendant. Defendant has not sustained the burden of proof of delivery.

Delivery of the deed from defendant to Collins and...