I am unable to concur in the opinion of Mr. Justice STARR. The principal issue in this cause is whether Tom Collins authorized the name of Lee F. Norris to be inserted in the deed mentioned in Justice STARR'S opinion. The record shows that Tom Collins purchased the Makowski's land contract on December 26, 1941; and that at the time of the purchase of the land contract and since, the name of Lee F. Norris was not inserted as a party to the contract.
On the trial of the cause Tom Collins testified:
"When I bought on the land contract, the name on there was Tom Collins. Her name was not on there at all. I mean Lee F. Norris, otherwise called by herself Lee F. Collins. Her name was not on the land contract, only my name.
"Q. How did her name get on this warranty deed? Did you tell anybody to put her name on this deed?
"A. No, no, I didn't tell him to put her name on.
"Q. Did you tell anybody?
"A. I didn't tell anyone to put her name on there.
"Q. Do you know why her name was on this deed? *Page 150 "A. No.
"Q. Did you at any time ask Mr. Graves to put the name of Lee F. Collins, alleged to be your wife, on this second warranty deed?
"A. No.
"Q. Did you tell anybody else to put her name on this second warranty deed, known as exhibit 2?
"A. No.
"Q. Whose money went to pay for this place at 986 Krakow Place?
"A. Tom Collins' only."
Elmer J. Sexton, the realtor, testified that at the time the first deed was made out in August, 1943, Mr. Graves, the attorney, asked him to make out the deed to Thomas W. Collins and Lee F. Collins. Mr. Sexton further testified:
"Q. Did Tom Collins ever tell you to put Lee F. Collins' name on his deed?
"A. Not to my knowledge, no.
"Q. If he had, you would know it?
"A. I would say I would.
"Q. Did Tom Collins —
"A. No.
"Q. — ever tell you to put anybody else's name on his deed but his own?
"A. He did not."
Mr. Graves, the attorney, testified:
"I went with him (Tom Collins) to the office of Elmer J. Sexton, 1529 Ford Building, Detroit, Michigan; and while there, he paid the sum of $270 to Elmer J. Sexton, who was the agent of Ella R. Keary. At that time and at that place there was a conversation had as to the execution of the warranty deed. I did not specifically state whose names were to be placed on the deed. Mr. Sexton executed the deed and delivered it to me for Thomas Collins. *Page 151 * * * I did not ask anyone to insert the name of Lee F. Collins in the instrument — in either instrument as his wife."
Lee F. Norris testified that she lived with plaintiff as his wife; that her name was on the original assignment; and that she paid some taxes on the property. She gave no testimony to the effect that plaintiff authorized anyone to place her name on the deed. An examination of the record including the assignment of land contract does not support her testimony that her name was ever on the assignment of the land contract. Moreover, there is no support to the claim that plaintiff authorized anyone to insert both names in the deed. There is no evidence in this case to the effect that Tom Collins authorized anyone to place both names in the deed. In view of this fact and the positive testimony of Tom Collins I conclude that plaintiff has more than made out a prima facie case of legal fraud. The record fully supports the finding of the trial court:
"I think the plaintiff in this case has sustained the burden of proof that Tom Collins never intended to have the name `Lee Collins' inserted in these deeds. It was inserted in these deeds without legal authority and without his knowledge or consent."
The trial judge was in a better position to judge the credibility of the witnesses than a reviewing court. The decree should be affirmed.
BUTZEL, C.J., and BUSHNELL, J., concurred with SHARPE, J. *Page 152