Detroit & Sec. Trust Co. v. Gitre

• Decision Date: 07 April 1931
• Docket Number: 162.,Nos. 136,s. 136
• Citation: 235 N.W. 884,254 Mich. 66
• Court: Michigan Supreme Court
• Parties: DETROIT & SECURITY TRUST CO. et al. v. GITRE et al. (two cases).

254 Mich. 66

235 N.W. 884

DETROIT & SECURITY TRUST CO. et al.

v.GITRE et al. (two cases).

Nos. 136, 162.

Supreme Court of Michigan.

April 7, 1931.

Appeal from Circuit Court, Wayne County, in Chancery; Maurice H. McMahon, Judge.

Certiorari to Circuit Court, Wayne County; Maurice H. McMahon, Judge.

Bill by the Detroit & Security Trust Company and others against Lester Gitre and others. From a decree dismissing the bill and an order dissolving an attachment, plaintiffs appeal and bring certiorari.

Affirmed in part and reversed and rendered in part, and order dissolving attachment set aside.

Argued before the Entire Bench. Wurzer & Wurzer, of Detroit (John T. Higgins and Alfred N. Slaggert, both of Detroit, of counsel), for appellants.

Louis Starfield Cohane and Regene Freund Cohane, both of Detroit (Abbott & Coulter and Arthur J. Abbott, all of Detroit, of counsel), for appellee Stanley A. Gitre.

Henry Fischer and Ray V. Richards, both of Detroit (Sempliner, Dewey, Stanton & Bushnell, of Detroit, of counsel), for appellees George and Delos Gitre.

FEAD, J.

This is a bill, filed February 25, 1930, in aid of execution. The court accepted defendants' testimony, which was substantially undisputed, and dismissed the bill.

On July 9, 1929, plaintiffs brought suit against Lester Gitre for rent due on a lease expiring in 1932. About October 11th the attorneys, Lester Gitre, and his son Stanley had a conference, in which Lester proposed surrender of the lease and his own discharge from further liability on it. The offer was refused, plaintiffs' attorney insisting on the obligations of the lease, pointing out that Lester was financially responsible through ownership of a large number of lots in Gitre Park subdivision in Detroit, and that plaintiffs would look to the lots for satisfaction of the rent due and to become due.

On November 5th, Lester conveyed, partly to Stanley and partly to his nephew Delos, the Gitre Park lots and other property in Michigan, California, and Canada. There was some indefinite testimony of his retaining a piece of land near Niles, Mich., which he later sold; but the property was not identified as to character, value, or time of sale sufficiently to warrant its consideration here in mitigation of the effect of the conveyances at bar.

Plaintiffs levied on the Gitre Park lots which, in his pleadings, Stanley stated are worth $100,000. The separate value of the lots deeded to Stanley and Delos, respectively, was not shown. Plaintiffs claimed the transfers were in fraud of creditors. Defendants claimed they were bona fide and for valuable and adequate consideration. Lester Gitre did not testify. As the conveyances present different considerations, they will be treated separately.

Delos Gitre Deeds.

Delos claims to hold as trustee for his father, George Gitre. In 1926, George transferred these Gitre Park lots to Lester in at least partial fraud of creditors. On the same day, Lester deeded them back to George. George said he held the deeds unrecorded to prevent his wife and her children from taking an interest in them. When Lester became financially involved in 1929 and something had to be done about the record title, instead of recording the deeds a new conveyance was made from Lester to Delos in verbal trust for George, in order to escape the wife's claim. The unrecorded deeds were destroyed by the attorney who conducted the conveyances. The trust has become written by the pleadings in this case.

The testimony did not show that Lester was given credit by plaintiffs upon the strength of the record title of these lots, and the question of the rights of the parties, had such credit been given, is not before us. Nor are we here concerned with the rights of George's wife. We agree with counsel for George and Delos Gitre that, through the unrecorded deeds, George had title, it was not restroed to Lester by the destruction of the deeds, and George is still the owner of the lots. Tabor v. Tabor, 136 Mich. 255, 99 N. W. 4. As Lester did not own the lots, they are not subject to execution against him.

As to this property the decree will be affirmed, but without costs.

Stanley Gitre Deeds.

Defendants claimed they paid fair consideration for these conveyances, running both from Stanley and his mother to Lester. The deeds covered several lots in Ontario as well as those in Gitre Park. The claimed considerations were:

First. Debt owing by Lester to Stanley for work. Stanley was born in 1907. From the time he was 14 years old he worked in his father's drug stores after school, Saturdays, and during vacations, receiving board and room and wages of $18, increasing to $35 per week, until about 1925. He attended school and a military academy until he was about 18, when he was sick for approximately six months, and then worked on his father's poultry farm until it was sold, some seven months after Stanley became of age. He said his father promised him for his labor a $12,000 drug store and the $70,000 chicken farm. On receiving the deeds in 1929, he released his father from the oral agreement and all claims for labor and otherwise. The value of his services was not shown.

Second. Debt owing by Lester to his wife for labor. When Lester and Mrs. Gitre were married, they were poor and Mrs. Gitre worked for their mutual benefit, aiding her husband in accumulating his property. She took boarders and roomers to finance an education for him and later worked in the drug stores. She claimed the value of her services as part consideration for the transfer to Stanley, but offered no evidence of their worth.

Lester and his wife were not happy together. Mrs. Gitre had filed suit for divorce in 1926, and later discontinued it. She testified that, in connection with the reconciliation in 1926, Lester promised to put all of his property in their joint names. However, no conveyances were actually made to her, as in the cases relied on by defendants, and the oral agreement neither gave her title nor created a debt from her husband to her.

Third. Property settlement on wife. In conrection with the conveyances on November 4, 1929, Lester and Stanley executed an agreement, not referred to in the deeds, reciting that Lester was about to remove from the city, wanted to permanently provide for the support of his wife, Stanley was willing to assume the burden in consideration of the transfer of the property, that the transfer was accordingly made, Stanley agreed to support his mother for the balance of her life, the obligation to be charged against the real estate conveyed, and Stanley should always hold at least $10,000 in fair value of the real estate for the protection of Lester and the mother in the faithful performance of the agreement of support. Mrs. Gitre executed a consent to the...