Young v. Thrasher

• Decision Date: 25 March 1893
• Citation: 21 S.W. 1104,115 Mo. 222
• Parties: YOUNG v. THRASHER.
• Court: Missouri Supreme Court

21 S.W. 1104

115 Mo. 222

YOUNG v. THRASHER.

Supreme Court of Missouri, Division No. 1.

March 25, 1893.

DOWER — ASSESSMENT — PARTNERSHIP PROPERTY.

1. Land purchased by a firm of attorneys for the purpose of selling the same again at a profit is to be treated as personalty, so far as may be necessary for the purpose of settling up the partnership affairs, and the right of dower is subject to the debts of the firm.

2. A sale by one partner to his copartner of an interest in land, worth $2,500, when the only debt due on partnership account is one of $32, does not bar the dower of the selling partner's wife, since such a sale is not necessary for the purpose of winding up the partnership.

3. In assessing dower in an undivided one-third interest in land, on which improvements have been made since it was sold by the husband of the dowress, it is proper to allow one ninth of the yearly value of the ground rent, not including the rental value of the improvements.

4. An allowance for dower should not be made payable in advance.

Appeal from circuit court, Greene county; W. D. Hubbard, Judge.

Suit by Belle Young against C. W Thrasher for assignment of dower. Plaintiff obtained judgment. Defendant appeals. Modified.

White & McCammon and Chas. W. Thrasher, for appellant. Haseltine Bros., for respondent.

MACFARLANE, J.

This suit is by plaintiff, as widow of Henry C. Young, deceased, for the assignment of dower in the undivided one half of the north half of lot 24, in block 6, in the original town of Springfield, Greene county, and for damages for the deforcement thereof. The petition charged that Henry C. Young, the husband of plaintiff, and defendant C. W. Thrasher, on the 21st day of August, 1879, purchased of James C. Fargo the said N. ½ of lot 24, block 6, each paying one half the purchase money thereof. That the title deed to said lot was taken in the name of defendant for the purpose of secretly and fraudulently depriving plaintiff of her dower in the half interest of her husband therein. That afterwards, in August, 1883, defendant bought from plaintiff's said husband his half interest in said property, paying him therefor $2,500. That her said husband died in February, 1886, and that she had then never relinquished her dower in said lot. The petition contained a charge that, subsequent to the death of her husband, plaintiff had been wrongfully induced by defendant to execute to him a deed of release to said land, and she asked that the same be set aside, that dower be assigned, and damages be awarded her. Defendant, by amended answer, waived all claim under the deed of relinquishment from plaintiff, and consented that the same might be set aside. To the other allegations of the petition the answer was a general denial. The evidence on the trial showed that defendant Thrasher and Henry C. Young, the husband of plaintiff, were partners engaged in the practice of law in Springfield, from 1876 to some year or two prior to August, 1883, at which date a final settlement was made. On the 4th day of December, 1876, the lot in question was conveyed by James C. Fargo to the said Young, for the purpose of making a sale and conveyance of the same. On July 1, 1879, he sold at public sale, and defendant bought, the lot, subject to the approval of the owner. The sale was not approved and consummated until August 2, 1879. The purchase price was $1,750. Between the date of the sale and the final approval by the owner an agreement was entered into, between Thrasher and Young, that the latter assist in raising the money to pay for the lot. They agreed with one Holland to take a third interest at $800, which amount was paid. The title was made to defendant. They borrowed $1,000, for which they gave their note, signed by each individually, and defendant gave a deed of trust on two thirds of the lot to secure the payment. This $1,800 paid for the lot, and the balance went "into partnership matters." In March, 1880, Holland declining to take the land, his third was sold to Milner, to whom defendant made a deed dated March 30, 1880. On March 30th, defendant borrowed $2,000 on his own note and deed of trust upon the property, and paid off the other notes, and received credit from the partnership. It was not shown definitely when the dissolution of the partnership occurred. A final settlement dated August 3, 1883, was read in evidence. But few items of partnership business appeared on this settlement subsequent to 1881. A settlement of private accounts between them was also put in evidence; the items of this account commenced about the first of the year 1882. Young left the state about the first of the year 1882, and the firm did no new business after that. The settlement of the partnership affairs showed a balance due from Young to defendant of $32.45, and on private account, $687.30. On this day defendant gave Young $2,500 for his interest in the lot. The balances were settled, and defendant gave Young his notes for the difference. Defendant testified that, when Young agreed to join him in paying for the property, it was agreed that "whatever we could make on that lot we would consider in the nature of our business, as we were partners then, and divide it between us." In the statement of final partnership account, each party was charged with one half of the purchase price. A charge for rents of property received by Young also appeared. A letter from defendant to Young dated September 19, 1882, was read, in which was said: "You speak about letting me have the lot on the square. Please, when you write me, say what price you put upon it, and I can then tell whether I can take it." Defendant was the administrator of Henry C. Young, and the inventory described two tracts of land in which the title was held in the name of the defendant, — "one undivided one half in trust for Henry C. Young, deceased."

1. Under the statutes of this state every widow is entitled to dower in all lands of which any person was seised, to the use of the husband, during the marriage. Rev. St. 1889, § 4513; Davis v. Evans, 102 Mo. 164, 14 S. W. Rep. 875; Davis v. Green, 102 Mo. 170, 14 S. W. Rep. 876. There can be no doubt, then, that plaintiff is entitled to dower in this lot, though the legal title was held by defendant, unless a right of dower never attached, for the reason that the lot was held and disposed of as partnership property. The purchase price was fully paid, and the equity of Young was complete, being only subject to the settlement of partnership affairs.

2. Partnership property is held in trust for the payment of the partnership debts, and the security of the partners respectively, among themselves, for advances made in the firm interest, and no individual partner has a right, in severalty, to any specific part of the property. The estate of the wife in the realty of the husband is derived from him, and is subject to all the trusts and incumbrances existing against it at the acquisition of his title. Hence real estate of a partnership becomes charged, in equity, with this trust, to which the dower right of the wife is subject. This is the recognized American doctrine. Scribner states the rule thus: "In equity partnership lands are regarded as personalty, and not subject to dower until the firm creditors, and the debts due the several partners, as among themselves, are fully paid. As a consequence of this rule, a claim of dower on the part of the widow of one of the partners is postponed until the partnership affairs are adjusted." 2 Scrib. Dower, 163; Pars. Partn. § 112; Tied. Real Prop. § 245; 1 Lindl. Partn. p. 766, § 333; Simpson v. Leech, 86 Ill. 287; 5 Amer. & Eng. Enc. Law, 898; Huston v. Neil, 41 Ind. 507. While there may have been some diversity of opinion elsewhere, it has ever been held in this state, according to the general rule above stated, that real estate purchased by partners for firm purposes, and paid for out of the partnership funds, is, in equity, to be treated as personal property, as far as may be necessary in order to settle the partnership affairs. As is said: "The policy of the law and principles of justice are against the rights of the wife to dower in such lands, where they are necessary to pay the demands of the firm." Duhring v. Duhring, 20 Mo. 180. See, also, Carlisle v. Mulhern, 19 Mo. 56; Willet v. Brown, 65 Mo. 144; Matthews v. Hunter, 67 Mo. 295.

3. No reason can be seen, and none, we think, exists, why a firm of lawyers, engaged together in the practice of their profession,...