Kelley v. Hoogerhyde

• Decision Date: 04 March 1946
• Docket Number: No. 38.,38.
• Parties: KELLEY v. HOOGERHYDE et al.
• Court: Michigan Supreme Court

314 Mich. 37

22 N.W.2d 63

KELLEY

v.HOOGERHYDE et al.

No. 38.

Supreme Court of Michigan.

March 4, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Mecosta County, in Chancery; Earl C. Pugsley, Presiding Judge.

Suit by Pearl D. Kelley against Edith Hoogerhyde, ancillary administratrix of the estate of Lillian Fletcher, deceased, and Frank Pfaller, Jr., trustee of such estate, to set aside a deed executed by plaintiff to decedent. From a decree of dismissal, plaintiff appeals.

Reversed and a decree entered in accordance with opinion.

Before the Entire Bench.

Fred R. Everett, of Big Rapids, for plaintiff and appellant.

Nuel N. Donley, of Big Rapids, and Francis L. Williams, of Grand Rapids, for defendants and appellees.

SHARPE, Justice.

This is a suit to set aside a deed executed by plaintiff, Pearl D. Kelley, to Lillian Fletcher on the 29th day of May, 1931.

The title of this property was originally in Edgar S. Miller, who in 1924 executed a deed to Charles B. Kelley, deceased husband of plaintiff. Plaintiff obtained title to the premises through an assignment of the residue of the estate of her deceased husband. Sometime prior to November 6, 1930, Lillian Fletcher commenced a suit against Jacob Morlock, Jr., and Katherine Morlock to quiet title to certain premises. The case eventually was appealed to the Supreme Court and decided June 2, 1930. Fletcher v. Morlock, 251 Mich. 96, 231 N.W. 59. Following the filing of the decree in the Morlock case, Francis L. Williams, the attorney for defendants in the case at bar, who was the attorney for Lillian Fletcher, plaintiff in the Morlock case, wrote a letter to plaintiff, the following of which is a copy:

‘April 15, 1931

‘Mrs. Pearl Kelly,

‘Whittaker, Michign

‘Dear Mrs. Kelly:

‘Mrs. Lillian Fletcher, whose title in the Chippewa Lake property formerly owned by Edgar S. Miller has been confirmed by the Supreme Court, has requested me to notify you that she desires you to remove from this property and have you execute a quit-claim deed to her. The description which was deeded to you is as follows:

‘Com. at intersection of high water mark of Chippewa Lake & the one-eighth line running East and West through S 1/2 of Sec. 21, Chippewa Township, thence E. 232 feet and 6 inches, along said one-eighth line, thence due N 250 feet, thence due W to high water mark of said lake, thence along said high water mark to place of beginning, in the County of Mecosta and State of Michigan.

‘If you care to make a quit-claim deed of this we will send you the same and $1.00 to have the matter disposed of amicably.

‘Thanking you for your prompt attention, I am

‘Very truly yours,

‘Francis L. Williams.'Shortly thereafter Lillian Fletcher also wrote plaintiff a letter a copy of which reads:

‘May 25, 1931.

‘Dear Mrs. Kelley:

‘My attorney informs me that he has sent you the quit-claim deed for the property on Chippewa Lake heretofore owned by Edgar S. Miller. He has requested that I authorize him to proceed in court to recover this property and before authorizing that action to be taken, I thought I would write to you and see if you were not willing to turn over this property without any further trouble as the matter has already been litigated in court.

‘Very truly

‘Mrs. Lillian Fletcher.'

In 1941, Mento Everitt Gordinier, plaintiff's niece, consulted the records in the office of the register of deeds in Mecosta county and discovered that the supreme court decision in the Morlock case excepted the premises involved in this case. Mento Everitt Gordinier consulted two or three attorneys and endeavored to effect an amicable settlement, but failing to get a return of the property brought the instant suit as attorney in fact of plaintiff.

The cause came on for trial and in an opinion the trial court stated:

‘* * * It conclusively appears that the first paragraph of Mr. Williams' letter to the plaintiff was false, and misleading, because the title to the land which had been deeded to Mr. Kelley was not litigated in the supreme court decision referred to in that letter. * * *

‘The facts remain, however, under the undisputed record, both that this letter and that of Mrs. Fletcher, dated May 25, 1931, before quoted, were relied upon by plaintiff. There is also a failure of proof that there was any consideration paid by Lillian Fletcher to the plaintiff for the deed assailed in these proceedings. * * *

‘It cannot be said that the delay has not changed the status of the defendants, because Mrs. Fletcher has been dead since 1942. No one knows what changes might be made in the record or the findings of facts to be made if she were alive to testify. It is hard to conceive of a more radical change in the status of the parties than that occasioned through the death of one of them. * * *

‘The delay in bringing this suit for rescission for approximately three years after discovery of the fraud with the interyening death of Mrs. Fletcher is fatal to an action for rescission.'

A decree was entered dismissing plaintiff's bill of complaint. Plaintiff appeals and urges that she was not guilty of laches, under the circumstances in this case, in waiting from the summer of 1941 until June 1944 before commencing suit; and that there was no material change in the status of the parties involved in this case.

It appears that from the summer of 1941 until the commencement of suit Mento Everitt Gordinier, plaintiff's niece and the person who had charge of plaintiff's business affairs in Michigan, did not live in Michigan except for short periods during the summer when she lived in her cottage at Chippewa Lake; that subsequent to August 1941 she consulted attorneys in Chicago and in Stanton, Michigan, in an endeavor to recover the property for plaintiff. It also appears that plaintiff has lived in California for a period of about six years prior to the trial of the instant suit. She testified:

‘I have never had any other conversation with Mrs. Fletcher. I never have had any conversation with Mr. Francis L. Williams in regard to this property, and my dealings with them with regard to this property was limited to those two letters. I did not have any independent information as to whether or not the statements made in this letter from Mrs. Fletcher and the letter from Mr. Williams, which have been introduced here as exhibits, with regard to the recovery of this property by Mrs. Fletcher were correct. I relied upon the statements made in those two letters at the time that I made the quit-claim deed to this property, which I wouldn't have made the deed if I had known that they had not recovered. I would not have made the quit-claim deed to Mrs. Fletcher if I had not relied on representations in those two letters. I supposed the Court had included that in her recovery. The suit that I referred to in my testimony brought by Mrs. Fletcher against Mrs. Morlock, the former wife of Edgar S. Miller, I supposed was for the recovery of the property belonging to Mrs. Morlock and also to me. I was never notified regarding the suit or anything and I was not a party to that suit, but it was my belief that the property was included and my belief in that regard was confirmed in my mind by the two letters which have been introduced in connection with this deposition.'

The record sustains the trial court's conclusion that Mr. Williams' letter was false and misleading and that the letters of Mrs. Fletcher and Mr. Williams were relied upon by plaintiff and were material factors in inducing her to transfer the property to Mrs. Fletcher.

The only remaining question may be stated: Was plaintiff guilty of laches in...