Ooley v. Collins

Decision Date01 December 1955
Docket NumberNo. 79,79
PartiesHermie OOLEY, Plaintiff and Appellant, v. Edward COLLINS, Joseph T. Pawlowski, Olga M. Pawlowski, Gorden J. Miller, Lucille Miller, Carl A. Anderson, Jr., and Alice K. Anderson, Defendants and Appellees.
CourtMichigan Supreme Court

David Anderson, Jr., Paw Paw, for plaintiff and appellant.

Williams & Williams, by Lewis R. Williams, Jr., Paw Paw, for appellees.

Seymour, Seymour & Hughes, Benton Harbor, for defendants Carl A. Anderson, Jr., and Alice K. Anderson.

Joseph T. Pawlowski, South Bend, for Joseph T. Pawlowski and Olga M. Pawlowski, defendants and appellees.

Before the Entire Bench.

SHARPE, Justice.

This is a chancery action to impress a lien upon certain real estate. On January 16, 1952, plaintiff, Hermie Ooley, filed a bill of complaint in the circuit court of Van Buren county. Plaintiff's bill of complaint and her testimony alleges that on and prior to December 23, 1949, Gorden J. Miller and Lucille Miller, his wife, were the owners of a parcel of real estate in Van Buren county which was subject to a mortgage, which mortgage had been foreclosed in equity and sold on September 3, 1949; that plaintiff is and has been a resident of Chicago, Illinois, and has known defendant Edward Collins for a period of about eight years; that she and Edward Collins spent a few days with the Millers at their home and place of business during the Thanksgiving period of 1949; that while visiting the Millers she learned of the mortgage, its foreclosure, and sale; that on this occasion she told the Millers and Collins that she had about $17,000 which she was willing to advance in order to redeem the premises from the foreclosure sale; that the Millers told her that if she advanced that amount they would give her a warranty deed of the premises, subject to a contract of repurchase in one year; that she obtained a chshier's check by the use of her own funds in the sum of $17,510, made payable to Gorden Miller; that the draft was delivered to Edward Collins who took it to the Millers, and the mortgage was redeemed on December 23, 1949; that Collins and the Millers conspired together to cheat and defraud plaintiff, and in furtherance of said plan did on December 23, 1949, cause a warranty deed to be executed by the Millers to Edward Collins, which deed was recorded in the office of the register of deeds; that on February 17, 1950, Edward Collins entered into a contract of sale with Carl A. Anderson, Jr., and Alice Anderson, and on said day executed a warranty deed to the Andersons which was recorded on February 21, 1950; that on or about August 12, 1950, Edward Collins conveyed said premises to Joseph T. Pawlowski and Olga M. Pawlowski, husband and wife, by quit-claim deed, and assigned to the defendants Pawlowski his interest in the so-called Anderson contract that on or about February 15, 1950, Edward Collins paid to plaintiff the sum of $5,000, and that no other part of said indebtedness has been paid; that upon said premises is located a tavern, a restaurant, and a number of cottages.

The Millers filed an answer to plaintiff's bill of complaint in which they admit they redeemed the premises with the cashier's check furnished by plaintiff, but deny that they had any part in the scheme to defraud plaintiff.

Joseph T. Pawlowski filed an answer to plaintiff's bill of complaint in which he denies that he or his wife had any knowledge as to any plan or scheme of Edward Collins to defraud plaintiff, and that at the time he and Olga M. Pawlowski, his wife, acquired their interest in the premises, they had no knowledge or information that plaintiff had or claimed any interest in the premises.

Defendants, Carl A. Anderson, Jr., and Alice K. Anderson, his wife, also filed an answer to plaintiff's bill of complaint in which they deny that they knew of or took part in any scheme to defraud plaintiff, and that at the time of acquiring their interest in the premises they had no knowledge that plaintiff had or claimed any interest in the premises.

The record shows that defendant Edward Collins was not personally served with summons, nor did he enter his appearance in the case. It appears that Edward Collins left the State of Michigan on or about August 18, 1950. It also appears that on the day plaintiff's bill of complaint was filed, plaintiff's attorney filed an affidavit reciting that defendants Pawlowski were nonresidents of the State of Michigan, but resided in the State of Indiana, and that it could not be ascertained in what state or country defendant Edward Collins resided. Based on this affidavit, an order of publication was entered and published in a newspaper in Van Buren county for the required publication, in which order defendant Edward Collins was named as a defendant. It also appears that on or about February 18, 1950, defendant Collins paid plaintiff the sum of $5,000, and also about that time the further sum of $700, which $700 was reborrowed by Collins and the Millers a few months later.

The cause came on for trial, at which time plaintiff testified:

'I had met the Millers that summer, but we were invited to their home for Thanksgiving dinner in the fall of 1949. I went to their home at that time. We stayed all night. By we, I mean Ed Collins and myself. This home is out at Sister Lakes and the dinner was given at the Rendezvous and that night we spent the night in their home. This was near the Rendezvous.

'Q. On that visit, did you have any conversation with Mr. and Mrs. Miller concerning this Rendezvous property? A. Well, I had heard that they had this mortgage against it and Ed had told me all about it because he was better acquainted with the Millers than I was. And when we were there at Thanksgiving, they had just a short period of time to make up this-- to get this mortgage straightened out and I thought it was a nice place to----

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'A. Well, the Millers were very much upset and so we were talking it over and I said well, I had $17,000.00 but that wouldn't be enough to cover this mortgage. And Mr. Miller said, well, perhaps they could get the rest somewhere else in the meantime. And that was all for that time.

'And then he made an agreement to come to my apartment about two weeks later when Mr. and Mrs. Miller visited my place and when this agreement was made.

* * *

* * *

'A. Well, Mr. Miller had stated that he would give me a Warranty Deed on the property and that Collins--Ed Collins--he was going to go up there and run the place in the meantime and I was going to remain in Chicago until they got set.

* * *

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'Q. Just tell us what was said about Miller's repurchasing the property. A. After the period of a year, they could buy it back.

* * *

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'After the redemption from this foreclosure, Collins went into a business adventure. He went to Seymour, Indiana with the Millers for a period of about two months and then that fell through. And then they went to Indiana to South Bend and they were operating until the Fall of the year. They were operating a cafe. They operated the cafe up until the time Collins left. Between the redemption from this foreclosure and when Collins left the Millers and Collins were in business together.

* * *

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'Q. Now, prior to that, had you had any telephone communications with Mr. Miller? A. Well, as quick as Collins had left, he kept calling me several times a day and wanting to know where he went and I hadn't seen him and she was telling me that he was--that he had made a quit claim deed with Mr. Pawlowski and naturally I didn't know anything about it because I hadn't seem him.

'Q. But Mrs. Miller called you on the phone and told you that Collins was dealing with Pawlowski, is that right? A. That's right.

* * *

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'Q. You offered Mr. Miller $17,510.00? A. Yes.

'Q. To a man you hardly knew before, isn't that right? A. Well, with an agreement that I should get the Warranty Deed.

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'I did not agree to give this money to Mr. Collins. I went to the Bank with Mr. Collins and got a cashier's check for $17,510.00. Mr. Collins was there with me at that time. I gave the check to Edward Collins. I never saw the check again, not until I saw the photostatic copy. I do know what Mr. Collins did with it. I was not there when he disposed of it, but the Millers were in here shortly after that and had told me about the agreement that was made.'

On cross examination plaintiff testified:

'I have never met Mrs. Anderson. I have never met Mr. Carl Anderson. I never saw them before today in court. I had never seen them at all at any time. At the time Mr. Anderson purchased this property involved in this suit I knew of the transaction. I never went to see Mr. Anderson about it. I never went to see Mrs. Anderson about it.'

Joseph J. Nagle, a witness for plaintiff, testified:

'My name is Joseph J. Nagle. I reside in Chicago, Illinois. My occupation is lawyer. I am acquainted with Mrs. Ooley. She is a client of mine. I am acquainted with Gorden Miller. In the summer of 1950 I learned of this transaction of Mrs. Ooley's with Miller and Collins.

'After I learned of that transaction I had a conversation with Gorden Miller in South Bend, Indiana, at his Cafe. Collins was not there. The date was August 31, 1950. I discussed this transaction with Mr. Miller at that time.

'Q. Will you tell us what the conversation was? A. Well, I inquired into what took place as to this deal. I asked him all the questions I possibly could and I asked him about this check and what happened on that redemption.

'He said Collins came up there with the money--with this check and they redeemed their property at that time. And during the conversation he said he talked to Collins and he said, 'Now, I appreciate what Mrs. Ooley has done for me, saving my property, and I want to make out a Warranty Deed to Mrs. Ooley to my property.'

'And he also said he talked to Collins and Collins said he had...

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