Allen v. Logan

• Decision Date: 20 December 1888
• Citation: 96 Mo. 591,10 S.W. 149
• Parties: ALLEN v. LOGAN et al.
• Court: Missouri Supreme Court

10 S.W. 149

96 Mo. 591

ALLEN v. LOGAN et al.

Supreme Court of Missouri.

December 20, 1888.

1. PARTNERSHIP — FIRM AND INDIVIDUAL ASSETS — EVIDENCE.

The common source of title in ejectment was a conveyance of certain property to three brothers individually. Plaintiff derived title through a sheriff's sale of one undivided third interest, under judgment against one of the brothers for an individual debt. Defendants claimed under a later purchase from the three, made in payment of a debt from them as partners, averring that the land was firm assets, and that the sheriff's sale was void. The partnership was alleged to have been originally formed long before, in Illinois, but in none of their transactions, notes, or deeds was there any firm name used. Before acquiring the land, they, with others, were engaged for several years in Texas in the cattle business. Upon leaving Texas, they adjusted their respective interests, owing no debts, and removed to Missouri, where they bought the land; their former associates having no interest in it. Held, that the evidence did not support the finding that the land belonged to a partnership.

2. APPEAL — REVIEW — EQUITABLE DEFENSES — EVIDENCE.

Upon the filing of an answer in ejectment, raising an equitable defense, the proceedings are thereafter governed by the rules of equity, and an appellate court may inquire into the sufficiency of the evidence to support the trial court's conclusions of facts.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Ejectment by Charles W. Allen against William G. Logan, Henry W. Neilson, John C. Sherwood, Thomas Pearson, S. M. Pearson, and Thomas Menown, for land in Jackson county. An equitable defense was made, and the court found and decreed for defendants. Plaintiff appeals.

Karnes & Ess, for appellant. Bryant & Holmes, for respondents.

SHERWOOD, J.

In August, 1881, Joseph, Solomon, and Lewis P. Vail bought the land in controversy, two and one-fourth acres, now known as "Logan's First Addition to the City of Kansas City." The deed was made to them individually, and not as partners. In June, 1882, Charles F. Link was approached by Lewis 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. Link thereupon, believing Vail's statement as to the ownership of the property, loaned him the money, $185, 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 21st 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 Lewis 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 30th of that month, and recorded on the 14th day of July next thereafter. On the day last mentioned Link conveyed what he had purchased to Lithgow, and on the 23d day of the same month the latter conveyed to Allen, the plaintiff, the deed being recorded the next day. The Vail Bros., to whom the land was deeded as aforesaid, are the common source of title. On the 8th day of September, 1882, 19 days after the transcript of the justice was filed, creating a lien on the land, Lewis P. Vail, on his own behalf, and as attorney in fact of his brothers, for an expressed consideration of $2,000, conveyed by general warranty deed the land to John Vail and Leander Vail, his uncle and nephew, and the deed was recorded on the same day. On September 27, 1882, 13 days after the execution of that deed, John Vail and Leander Vail executed a warranty deed for the premises to the defendant William G. Logan. This deed expresses a consideration of $2,400, was acknowledged in Pike county, Ill and placed on record October 4, 1882, since which time Logan and the other defendants claiming under him have been in possession of the premises in dispute. In September, 1883, the plaintiff brought ejectment for the one-third interest in the land aforesaid. In October, 1883, Joseph, Lewis P., Solomon, Leander, and John Vail were made parties defendant, on their own motion, and filed their amended answer, as follows:

"OCTOBER TERM, 1883.

Charles W. Allen, Plaintiff, vs. Wm. G. Logan et al., Defendants. (Ejectment.)

"Lewis P. Vail, Solomon Vail, Joseph Vail, and Leander Vail, defendants herein, in answer to plaintiff's petition filed in this cause, say that they are the persons from whom and through whom Wm. G. Logan, Henry W. Neilson, J. C. Sherwood, Thomas Pearson, and S. M. Pearson, his wife, and Francis Menown, the present occupants of the land in controversy in this suit, and co-defendants herein, claim title under deeds of general warranty. That Lewis P. Vail, Solomon Vail, and Joseph Vail were in the month of August, 1882, and prior thereto, partners, and that said partnership continued and existed on and up to the month of December, 1882, and prior and subsequent to the 5th day thereof. That as partners, and with partnership funds, and for partnership purposes, the said Lewis, Solomon, and Joseph Vail did, on the 29th day of July, 1881, or thereabouts, purchase the land now sought to be recovered by plaintiff in this suit, and described in his petition. That Lewis, Solomon, and Joseph Vail, in the month of August, 1882, and prior and subsequent thereto, were, as partners, indebted to John and Leander Vail, for money advanced them for partnership purposes, in the large sum of two thousand dollars or more, and that said indebtedness existed in the month of December, 1882, as and prior and subsequent to the 5th day thereof, on the part of the said Lewis, Solomon, and Joseph Vail, as partners, to the said John and Leander Vail. That at the dates and time named, to-wit, August and December, 1882, the liabilities of the said Lewis, Solomon, and Joseph Vail, as partners, were in excess of their partnership assets. That some time in the month of September, 1882, Lewis, Solomon, and Joseph Vail conveyed to John and Leander Vail, creditors of the partnership, the property now in controversy in this suit, to pay partnership indebtedness with, by a good and sufficient warranty deed, which was duly recorded in office of the recorder of deeds for Jackson county, Mo., in the month of September, 1882. That prior to the deeding of said property to John and Leander Vail the said Lewis, Solomon, and Joseph Vail, as partners, had an amicable accounting among themselves of the firm's assets and liabilities, and the interest of each individual member, and found that Lewis P. Vail was indebted to the firm, in the month of August, 1882, and prior thereto, in a large sum, to-wit, seven hundred dollars, for money withdrawn by him from the firm in excess of his contributions or profits to or in the said partnership. That no part of the said seven hundred dollars thus found to be due was paid on or before the months of August and December, 1882, nor has yet been paid, by the said Lewis P. Vail, or by any one else in his name, or for his account. That in the month of August, 1882, or prior thereto, Lewis P. Vail became indebted to Chas. F. Link in the sum of one hundred and eighty-four dollars. That said debt was contracted on the part of Lewis P. Vail as his own individual debt. That no portion of it was used by or contributed to the partnership. That at the time of the contraction the partners of Lewis P. Vail, Solomon and Joseph, were in ignorance of it, did not authorize it, nor did they at any time thereafter confirm his act, or assume the responsibility for its payment. That in the month of August, 1882, or prior thereto, the said Chas. F. Link obtained judgment against Lewis P. Vail for the...