
    SCHUELER v. ALTHOUSE.
    1. Deeds — Pleading—Evidence—Forgery—Delivery.
    Proof of allegations that deed was a forgery and that it was not delivered during the lifetime of the grantor would make the deed a nullity.
    2. Wills — Right of Action to Invalidate Deed — Residuary Beneficiary.
    A testator’s right of action to invalidate a deed vests in. the residuary beneficiary under a will.
    3. Receivers — Successor in Interest of Judgment Debtor.
    The receiver of a judgment debtor succeeds to all of the latter’s property rights and interests, including his right to invalidate a deed given by a testator who had made the judgment debtor his heir.
    4. Deeds — Receivers—Wills—Forgery—Delivery.
    Bill by receiver of judgment debtor to set aside deed of grantor to the debtor’s wife on ground it was a forgery and had not been delivered during grantor’s lifetime, brought by plaintiff as successor in interest to debtor who had been named as heir of grantor held, to have been improperly dismissed on motion, since plaintiff was entitled to have trial of the issues of forgery and delivery.
    5. Costs — Remand—Deeds—Forgery—Delivery.
    Costs are ordered to abide the final result, where suit to set aside deed is remanded for trial on issues of forgery and delivery.
    References for Points in Headnotes
    
       16 Am Jur, Deeds §§ 27, 142.
    
       9 Am Jur, Cancellation of Instruments § 10.
    
       21 Am Jur, Executions § 686.
    45 Am Jur, Receivers § 151.
    
       14 Am Jur, Costs § 95.
    
      Appeal from Oakland; Holland (H. Rnssel), J.
    Submitted October 4, 1961.
    (Docket No. 16, Calendar No. 48,534.)
    Decided March 16, 1962.
    Bill by Arthur M. Schueler, receiver for Robert L. Althouse, against Neva R. Althouse to set aside deed. Bill dismissed on motion.
    Plaintiff appeals. Reversed and remanded.
    
      John T. Lungerhausen and David W. Laughery, for plaintiff.
    
      Smith & Pratt (Philip Pratt, of counsel), for defendant.
   Kelly, J.

March 11, 1959, plaintiff filed bill of complaint seeking to have declared invalid a certain deed, alleging that he is the duly qualified and appointed receiver for Robert L. Althouse for the benefit of creditors; that on the 30th day of August, 1957, Max Robinson Hodgdon died testate, leaving a last will and testament naming Robert L. Althouse as heir; that during the proceedings to probate the will plaintiff endeavored by garnishment, execution, and injunctive proceedings, to acquire, for the benefit of creditors, the interests of Robert L. Althouse in said estate; that defendant (wife of Robert L. Alt-house) was aware of such effort, yet for more than a year during the course thereof did not openly claim any portion thereof in her own right; that recently it has been discovered that thereafter, on October 3, 1958, a quitclaim deed was filed with the Oakland 'county register of deeds by virtue of which defendant contends that deceased, Max R. Plodgdon, did, on August 27, 1957, divest himself of the property and transferred same to defendant, leaving the testator virtually without assets at the time of his death 3 days.later.

Following the above summation of plaintiff’s declaration, there follows 9 reasons why plaintiff claims the deed should be declared invalid, namely: Said deed (1) is not in proper form; (2) is not properly executed; (3) does not express the intent of the grantor; (4) is the result of undue influence; (5) was without consideration; (6) was never intended to pass title as evidenced by the fact that no Federal revenue stamps were placed thereon nor was a Federal gift tax report ever filed; (7) was never delivered during the lifetime of the grantor; (8) is a forgery and was not executed as it purports to be by the grantor during his lifetime; and (9) does not properly describe the property owned by the deceased.

June 2, 1959, the court dismissed plaintiff’s bill of complaint, and on July 31, 1959, the court denied plaintiff’s motion for rehearing, stating:

“It is the essence of this court’s ruling that the court believes that the receiver is without authority to institute this suit. CL 1948, § 634.6 (Stat Ann § 27.2176) is authority having to do with the rights of the receiver to do certain things with regard to the ‘property of the judgment debtor.’ No authority need be cited for the proposition that the deceased here involved had a perfect right to dispose of his property before his death in any manner he saw fit. There is no privity or actionable legal connection between the creditors of Robert Althouse and the deceased. No fraud could be perpetrated by the deceased upon such creditors.”

The bill of complaint alleges that the deed to defendant was a forgery and, further, that the deed was not delivered during the lifetime of grantor. Proof of these allegations would make the deed a nullity.

Decedent during his lifetime could have invalidated the deed on these grounds, and such a right of action vested in Robert L. Altfiouse, as beneficiary under tfie will. In In re Lacroix’s Estate, 244 Mich 148, we field that a residuary beneficiary may sue' to recover testator’s property, of which, fie was wrongfully deprived in his lifetime.

Tfie interests of Robert L. Altfiouse, as beneficiary under tfie will of Max R. Hodgdon, may be field subject to a creditors’ bill and may be reached and impounded.

We agree with appellant that:

“Plaintiff and appellant upon his appointment by tfie court as receiver of the judgment debtor Robert L. Altfiouse, succeeded to all of tfie property rights and interests of said judgment debtor, and particularly fiis interest as residuary beneficiary under tfie Hodgdon will, and in that behalf fie primarily represents tfie judgment debtor for tfie benefit of the judgment creditors.”

Tfie court erred in dismissing tfie bill of complaint. The question was not whether or not deceased had “a perfect right to dispose of fiis property before fiis death in any manner fie saw fit” or whether “fraud could be perpetrated by tfie deceased upon such creditors.” Tfie question presented was whether tfie deed was a forgery and whether or not tfie deed was delivered during tfie lifetime of tfie grantor. Plaintiff was and is entitled to a trial on these issues.

Tfie order dismissing plaintiff’s bill of complaint is reversed, and this cause is remanded for trial solely on tfie 2 questions, namely: the claim of forgery, and tfie claim of nondelivery of tfie deed.

Reversed and remanded. Costs to abide final result.

Dethmers, C. J., and Carr, Black, Kavanagh, and Souris, JJ., concurred.

Otis M. Smith, and Adams, JJ., took no part in the decision of this case. 
      
      21 CJS, Creditors’ Suits, § 12, p 1065; 14 Am Jnr, Creditors’ Bills, § 64, p 709; Morgan v. Kingman, 123 Mich 197; Earle v. Circuit Judge of Kent County, 92 Mich 285; Craig v. Wayne Circuit Judge, 192 Mich 106.
     