Allen v. Logan

• Decision Date: 20 December 1888
• Parties: Allen, Appellant, v. Logan et al
• Court: Missouri Supreme Court

10 S.W. 149

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

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. 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 title.

On the eighth day of September, 1882, nineteen days after the transcript of the justice was filed, creating a lien on the land, Louis P. Vail, on his own behalf and as attorney in fact of his brothers, for an expressed consideration of two thousand dollars, 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 21, 1882, thirteen days after the execution of that deed, John Vail and Leander Vail executed a warranty deed for the premises to the defendant, Wm. G. Logan. This deed expresses a consideration of twenty-four hundred dollars, was acknowledged in Pike county, Illinois, 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, Louis P., Solomon, Leander and John Vail were made parties defendant on their own motion, and filed their amended answer as follows:

"Louis 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 Louis 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 fifth day thereof.

"That as partners and with partnership funds and for partnership purposes, the said Lewis, Solomon and Joseph Vail did, on the twenty-ninth 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, at and prior and subsequent to the fifth 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 the office of the recorder of deeds for Jackson county, Missouri, in the month of September, 1882; that prior to the deeding of the 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, or 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 said indebtedness, before A. W. Allen, a justice of the peace, and in the month of December, 1882, caused a transcript of said judgment to be filed with the clerk of this court; that execution was issued to the sheriff of Jackson county, Missouri, who levied upon and sold the property described in plaintiff's petition, in the month of June or July, 1883; that at the time of said sale, these defendants by their attorney, J. J. Davenport, publicly announced at the door of the courthouse, where the sale was about to take place, in the presence and hearing of said sheriff, and the said Link and one named Lithgow and many others then there, that Lewis, Solomon and Joseph Vail were partners at the time this land was purchased and that they had in good faith conveyed the same to John and Leander Vail, creditors of the partnership, who were then in possession of the same under...