Hoskey v. Hoskey

Quinn, J. Plaintiff filed this action in circuit court for an accounting of the proceeds arising from the sale of real estate by defendants, which real estate plaintiff contends was properly an asset 'of her deceased husband’s estate. Defendant John J. Hoskey is one of. 7. children of decedent and.his *124 former wife, and defendants claim they owned the real estate at time of sale under a deed from Arthur Hoskey. Trial by the court without a jury resulted in judgment for defendants and plaintiff appeals. The real estate in question is a 5-acre parcel containing the residence of plaintiff and her deceased husband together with several outbuildings. Plaintiff and her decedent had resided there for several years prior to November, 1951, at which time John J. Hoskey and another started a poultry business on the property. Arthur Hoskey was then 69 years of age and plaintiff was 58. Sometime between November, 1951, and March 19,1952, Arthur and Emilia entered into an agreement with John J. and Irene Hoskey, the terms of which are in dispute, but the record discloses John J. Hoskey paid his father $50 per week for about a year in addition to the sum of $2,000 in accordance with such agreement. On the latter date, all of the parties went to ■ the office of Attorney Chamski, where Emilia, executed a quitclaim deed of the property to Arthur, releasing dower, and he executed a warranty deed to John J. and Irene, reserving a life estate. Both deeds were given to John J., who returned them to Chamski for recording. Due to remodeling of his office, Chamski did not record the deeds, but sometime later, he returned them to John J. Arthur Hoskey died in November, 1962, and soon after his death, the deeds were found in his safe to which there was only one key, and it was accessible to John J. About 2 months after the deeds were executed, John J. and Irene moved in with Arthur and Emilia but moved out about 2-1/2 months later,, as the arrangement proved to be incompatible. November 5, 1952, Arthur and Emilia mortgaged the *125 premises to First State Bank of East Detroit for $2,500 which was paid to John and Irene for John’s interest in the poultry business. This interest was transferred .by bill of sale which contained the following language: “Parties of the first part * * * have bargained and sold and by .these presents do grant and convey, unto the said party of the second part, his executors, administrators or assigns, all the following goods' and chattels, to-wit: all of the goods, wares, merchandise, equipment, assets and real and personal property of the business known as ‘Ten Mile Poultry Market’ and located at 17947 Ten Mile Road, Rose-ville, Michigan, including but not limited to 1 Chilly Boy Deep Freeze and 1 Chicken Picking Machine.” John J. assisted his father in obtaining the mortgage, showed to the mortgagee’s attorney the deeds above referred to, and returned the deeds to Arthur. When he transferred the poultry business, John J. ceased making the $50 a week payments referred to above. Following his father’s death, John J. took the deeds from the safe and recorded them December 11, 1962; Within 2 months of her husband’s death, plaintiff moved from the premises, and defendants sold them April 13, 1964, for $30,000, out of which John J. paid to each of 3 brothers and sisters 1/7 of the net sale price, but he paid nothing to plaintiff or to his other brother and sister. Plaintiff was appointed administratrix July 30, 1964, and this lawsuit was started January 6, 1965. Plaintiff first contends that return of the warranty deed by John J. to Arthur under the circumstances constituted a reconveyance to Arthur, and since there was never a second delivery from Arthur to defendants or a new deed from Arthur to defendants, their title fails. To sustain her *126 position, plaintiff cites several authorities from other jurisdictions which support that position, but we are bound by Michigan law and Wiedbrauk v. Wiedbrauk (1938), 284 Mich 15, holds to the contrary. The return of the warranty deed by John J. to Arthur was not a reconveyance. Plaintiff asserts that the language in the bill of sale, quoted above, constitutes it a conveyance of defendants’ interest in the real estate, but the trial judge found that the bill of sale was intended to convey defendants’ interest in the poultry business only. A de novo review of the record fails to persuade us we would have reached a different result had we sat as the trial court. At trial, plaintiff objected to the testimony of Mr. Chamski on the basis his testimony was barred by PA 1961, No 236, § 2160, CLS 1961, § 600.2160 (Stat Ann 1962 Rev § 27A.2160), commonly referred to as the “dead man’s” statute. Here plaintiff claims admission of this testimony over objection was reversible error. In view of Mr. Chamski’s testimony that he was acting for both parties in the drafting and execution of the deeds here involved and the holding of Hynes v. Halstead (1937), 282 Mich 627, that the testimony of one acting as attorney for both parties to a transaction is not barred by the statute, supra, this contention of plaintiff is untenable. Finally plaintiff contends that there was a failure of consideration for the deed from Arthur to John J. A parent may convey property to a child without consideration, Mannausa v. Mannausa (1963), 370 Mich 180, and a deed from father to son, which expresses a valuable consideration, is valid, though no actual consideration passed, as between the son and the administrator of the father’s estate, where the latter makes no showing *127 of any rights claimed by creditors of the estate, Warren y. Tobey (1875), 32 Mich 45. We find no merit in plaintiff’s final contention. Affirmed, with costs to defendants. T. G. Kavanagh, P. J., and McGregor, J., concurred.