10 S.W. 149 (Mo. 1888), Allen v. Logan

Citation:10 S.W. 149, 96 Mo. 591
Opinion Judge:Sherwood, J.
Party Name:Allen, Appellant, v. Logan et al
Attorney:Henry N. Ess for appellant. Bryant & Holmes for respondents.
Judge Panel:Sherwood, J. Ray, J., absent.
Case Date:December 20, 1888
Court:Supreme Court of Missouri
 
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Page 149

10 S.W. 149 (Mo. 1888)

96 Mo. 591

Allen, Appellant,

v.

Logan et al

Supreme Court of Missouri

December 20, 1888

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Reversed and remanded.

Henry N. Ess for appellant.

(1) Evidence to establish a resulting trust must be clear, strong and unequivocal. Woodford v. Stephens, 51 Mo. 443; Modrell v. Riddle, 82 Mo. 36; Johnson v. Quarles, 46 Mo. 126; Baker v. Vining, 30 Me. 121; Ringo v. Richardson, 53 Mo. 394; Boyd v. McLean, 1 Johns. Ch. 582; Forrester v. Scoville, 51 Mo. 268. (2) A partner can, if he chooses, borrow money on his own account for the use of the firm, and so apply it. He alone will be liable for the money borrowed. Wiggins v. Hammond, 1 Mo. 122.

Bryant & Holmes for respondents.

(1) The action being at law in ejectment for recovery of possession of real property, the interposition by defendants of the special defense setting up that plaintiff's claim of title was invalid as against defendants, because the property in controversy belonged to a partnership of which the person under whom plaintiff claims title was a member, and had been conveyed by said partners to pay a partnership debt before the sheriff's sale, under which appellant's grantor purchased, did not change the nature of the action to a suit in equity, and the entire procedure of the trial of said action and the appeal from the judgment therein rendered, is governed by rules of practice in actions of law. Plow Co. v. Hartman, 84 Mo. 610; Grayson v. Weddle, 80 Mo. 39; Carter v. Prior, 78 Mo. 222; Wolf v. Shafer, 4 Mo.App. 372; s. c., 74 Mo. 154; Smith v. Canning Co., 14 Mo.App. 522; Joyce v. Murnaghan, 17 Mo.App. 11. (2) The action being one at law and the case being tried by the court without the intervention of a jury and the declarations of law made by the court being conceded to be correct, and there being evidence to support the finding, this court will not examine into the evidence to determine its weight or sufficiency to sustain the finding. Such finding is conclusive on this court. Johnson v. Lullman, 88 Mo. 567; Thies v. Garbe, 88 Mo. 146; Anderson v. Griffith, 86 Mo. 549; Webb v. Webb, 87 Mo. 510; Baum v. Fryrear, 85 Mo. 151; Miller v. Breneke, 83 Mo. 163; Cunningham v. Snow, 82 Mo. 587; Parkinson v. Caplinger, 65 Mo. 290; Harrison v. Bartlett, 57 Mo. 170; Douglass v. Orr, 58 Mo. 573. (3) On the facts in evidence and found by the court in the judgment rendered in favor of defendants, the judgment was manifestly correct and in accordance with law and should be affirmed. Priest v. Chouteau, 85 Mo. 399, and cas. cit.

Sherwood, J. Ray, J., absent.

OPINION

[96 Mo. 593] Sherwood, J.

In August, 1881, Joseph, Solomon and Louis P. Vail bought the land in controversy, two and one-fourth acres, now known as Logan's First Addition to the City of Kansas. The deed was made to them individually and not as partners. In June, 1882, Charles F. Link was approached by Louis P. Vail, and asked to lend him some money, Vail indicating to him the location of the property aforesaid, and saying that he owned it and wanted the money to pay his license, as he was about to engage in the saloon business, and did not wish to mortgage the property for so small a sum. [96 Mo. 594] Link thereupon, believing Vail's statement as to the ownership of the property, loaned him the money, one hundred and eighty-five dollars, all he had. Vail failing to repay him, Link brought suit before a justice of the peace, recovered judgment and filed a transcript thereof in the office of the circuit court, on the twenty-first of August, 1882. After a return of nulla bona upon an execution issued on the judgment of the justice of the peace, execution issued from the circuit clerk's office, was levied upon the said land, and the interest of Louis P. Vail in the same sold, and Link became the purchaser, receiving a sheriff's deed. This sale occurred in June, 1883, and the sheriff's deed is dated the thirtieth of that month, and recorded on the fourteenth day of July next thereafter. On the day last mentioned, Link conveyed what he had purchased to Lithgow, and on the twenty-third day of the same month, the latter conveyed to Allen the plaintiff, the deed being recorded the next day. The Vail brothers, to whom the land was deeded as aforesaid, are the common sources of...

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