Maximovich v. Wojtowicz

• Decision Date: 08 December 1926
• Docket Number: No. 48.,48.
• Citation: 236 Mich. 643,211 N.W. 65
• Parties: MAXIMOVICH et al. v. WOJTOWICZ et al.
• Court: Michigan Supreme Court

236 Mich. 643

211 N.W. 65

MAXIMOVICH et al.

v.WOJTOWICZ et al.

No. 48.

Supreme Court of Michigan.

Dec. 8, 1926.

Appeal from Circuit Court, Wayne County, in Chancery; Samuel G. Houghton, Judge.

Action by Sam Maximovich and another against Albert Wojtowicz and others, in which William Noll petitioned for leave to intervene. From an order denying the petition for intervention, petitioner appeals. Reversed and remanded.

Argued before the Entire Bench.

Benedict H. Lee, of Detroit, for appellant.

Harry J. Lippman and Ernest W. Ver Wiebe, both of Detroit, for appellees.

Willard & Czarnecki, of Detroit, for defendants Maria Wojtowicz, John Davidowski, Nellie Davidowski, and Joseph Jacinski.

Jorgensen & Alexander, of Detroit, for defendant Albert Wojtowicz.

Henry Karwowski, for defendant Wisniewski.

McDONALD, J.

This is an appeal from an order of the circuit court for Wayne county denying the petition of William Noll to be allowed to intervene in the above-entitled cause.

The plaintiffs were the owners of certain premises on Knodell street, in the city of Detroit. The defendants Albert Wojtowicz and Maria Wojtowicz, his wife, owned a farm in Sanilac county, which they had sold to Stanislaw Kubecki on land contract, on which a balance of $5,725 remained unpaid. The plaintiffs exchanged their Knodell street property for the farm. Subsequently, Albert Wojtowicz and Maria Wojtowicz conveyed the Knodell street property to defendants John Davidowski and Nellie Davidowski, as the down payment on a land contract, for the purchase of certain property on Nagal street, in the city of Hamtramck, Mich. The Nagal street property was thereafter conveyed to one John Anuszewski and by him sold to the petitioner, William Noll.

The plaintiffs filed their bill to have the transaction with Albert Wojtowicz and Maria Wojtowicz set aside on the ground of fraud, and, in the event that such relief could not be granted because of intervening rights, that the plaintiffs' damages be determined and a lien therefor be impressed on the Sanilac farm and the Nagal street property. A lis pendens was filed at the beginning of suit. Before this, Anuszewski had purchased the Nagal street premises, but sold it on contract to the petitioner, Noll, after the lis pendens was filed. Neither Anuszewski nor Noll was named in the summons, and they were not made parties to the suit.

On the hearing, the court found that the conveyance of the Knodell street property was induced by the fraud of Albert Wojtowicz and Maria Wojtowicz, but did not set it aside because the property had passed to John Davidowski and Nellie Davidowski, who were held to be innocent purchasers for value. Instead, the plaintiffs were given a money decree of $2,500 and a lien upon the Sanilac farm and the Nagal street property to secure its payment. The decree further provided that all assignments and conveyances of the Nagal street property by Albert Wojtowicz and Maria Wojtowicz should be set aside because they were made...