Betts v. Letcher
| Decision Date | 25 June 1890 |
| Citation | 46 N.W. 193,1 S.D. 182 |
| Parties | Betts v. Letcher et al. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. A referee, under the statute in force at the time of the trial of this cause, was an officer of the court for a specific purpose; that is, "to take testimony," "to ascertain a fact," or, it might have been, to hear and determine any or all the issues of fact in an action, and to report a finding of fact upon which a judgment could have been entered by the court. To determine the power of the referee, the object for which he was appointed, or the nature of the reference, must be continually kept in view.
2. The protection which the registry law gives to those taking titles or security upon land upon the faith of the records should not be destroyed or lost except upon clear evidence showing a want of good faith in the party claiming this protection, and a clear equity in him who seeks to establish a right in hostility to such person. Slight circumstances, or mere conjecture, should not suffice to overthrow the title of one whose title is first on record.
3. Notice of a prior unrecorded conveyance, or of any title legal or equitable, to the premises, or knowledge and notice of any facts which would put a prudent person upon inquiry impeaches the good faith of the subsequent purchaser.
4. Possession, in order to constitute notice, must be open and notorious, andprima facie is, of itself, sufficient notice but this presumption, like that arising from any other fact putting one upon inquiry, is subject to rebuttal by proof showing that an inquiry, duly and reasonably made, failed to disclose any legal or equitable title in the occupant.
5. The question of notice is one of fact, and is to be determined like any other fact.
6. Partners, in relation to each other, are trustees of the partnership property; and, whatever either one may do with that property, he acts in a fiduciary capacity, and all beneficial results from the use of that property or funds inure to the benefit of the partnership.
7. If real property be purchased with partnership means, and used for partnership purposes, it is treated in equity as held by the partners in trust for the firm, subject to the same rules as apply to partnership personal property. This is so whether the title be vested in one or all of the members of the firm.
8. A partner has a lien upon all the property of a firm, both real and personal, for the purpose of paying him any general balance which may be due him upon an accounting and dissolution of the firm, after all the firm debts are paid.
9. Exemptions of a partnership, under the law, belong to the firm, and are not several exemptions for each partner. Yet each partner is entitled to his several interest in the exemption, according to the number and interest of the partners, and, if one or more of the partners, at the time when he could demand and require the payment of the exemptions, waives his individual right to them, he is precluded from demanding them; and should the other partners demand their share of the exemptions before signing stipulation of settlement, and they are paid to them individually, they become their individual property, and not the property of the firm.
10. General exceptions are insufficient to make alleged errors reviewable in the appellate court. When the specific error is not clearly and distinctly pointed out in the record, it will not be considered in this court.
Appeal from district court, Davison county.
D. G Maclay, for appellants. Wynn & Nock and Gamble Bros, for respondent.
On the 3d day of February, 1882, Orlando R. Betts, the plaintiff, and the defendant George E. Letcher, entered into an agreement looking to the establishment of a copartnership for the sale of hardware at Mitchell, Dak. By the terms of the agreement, Betts agreed to convey to Letcher lot No. 12 in block No. 8, Mitchell, and Letcher was to build thereon a business house, upon the completion of which Letcher was to redeed to Betts half of the said lot upon the payment by Betts to him of one-half the cost price of said lot and the building so erected, and to take the promissory notes of said Betts for the same, said notes to be for equal sums, due two, three, four, and five years from date, and to draw interest at the rate of 8 per cent. per annum. On the 13th day of February the above-named Orlando R. Betts and George E. Letcher entered into a formal copartnership, and commenced doing business under the firm name of Letcher & Betts, at which time Letcher had contributed to the capital stock of said firm the sum of $2,400, and Betts the sum of $3,038.04, including the aforesaid lot No. 12, valued at $1,000. On or about September 22, 1882, a store building was completed on the lot No. 12; but as to whether it was built by the individual funds of Letcher, as per agreement, or in whole or in part by the funds of the copartnership, is a part of, or one of, the questions in this controversy. Upon the completion, viz., September 22, 1882, this building was taken possession of and occupied by the firm of Letcher & Betts. While said firm occupied, and were in possession of, said lot and building, on or about the 12th day of October, 1882, George E. Letcher, without the knowledge or consent of plaintiff, Betts, granted and conveyed unto the defendant Matilda S. Letcher, the mother of George E. Letcher, and who was residing in Mitchell at the time, the said lot No. 12, block 8, in Mitchell, Dak. The copartnership bought heavily, and was indebted to various creditors for unpaid balances on the stock. During the existence of the copartnership, each copartner, from time to time, withdrew from the copartnership funds certain sums of money, and also made certain other contributions to the capital stock. On or about October 21, 1882, a warrant of attachment was levied upon the stock in trade of said firm, at the suit against it of certain alleged creditors thereof, together with, as is alleged, the individual property of George E. Letcher. November 2, 1882, Edward C. Curry was duly appointed receiver, and took possession of said stock of goods, etc. On the 29th day of November, 1882, by a stipulation duly entered into between the attaching creditors and Orlando R. Betts and George E. Letcher, all the partnership property of the firm of Letcher & Betts, both real and personal, and the other specific property in the hands of the receiver, was turned over to said creditors in satisfaction of their claims and demands against said partnership. By the terms of this stipulation, it was provided that nothing therein contained should in any wise affect the rights and equities, if any, of said Orlando R. Betts in said lot 12, block 8, in Mitchell, Dak., and the improvements thereon; nor were the accounts of George E. Letcher, George E. Letcher's store account, nor the account of Orlando R. Betts, nor the new building account, transferred in the settlement stipulation between the creditors and the firm of Letcher & Betts. On October 23, 1883, the plaintiff brought this action against George E. Letcher for an accounting, and against Matilda S. Letcher to declare the conveyance of George E. Letcher to her of lot 12, block 8, Mitchell, Dak., void, and that said lot should be made subject to the trust of the plaintiff. Each defendant answered separately.
When the cause came on for hearing, the court below issued the following order: E. A. Maglone was afterwards substituted for Mrs. Washburn as referee. On the 6th day of November, 1886, the court issued the following order, appointing A. Haines as referee in the case:
Previous to the appointment of Haines as referee, and who made the final report to the court, it appears that Mrs. Washburn and E. A. Maglone, as previous referees in the case, had severally taken some testimony in the cause, but had not completed it. By virtue of the order above cited, the whole case was referred to A. Haines, Esq. Upon the trial before him, the referee received, against the objections of defendants, the depositions taken before the referees Mrs Washburn and Mr. E. A. Maglone. The referee, after further hearing the case, made his report to the court. To this report the defendants filed specific objections, which were overruled, and a judgment was entered in accordance with the findings of fact by the referee. The defendant Matilda S. Letcher moved the court to have the judgment set aside so far as it relates to the declaration of a lien against lot No. 12. block 8; and the defendant George E. Letcher asked the court to modify and correct the judgment as to him, and moved for a new trial. These motions were respectively overruled, and both defendants appeal, making, in substance, the following assignment of errors: First, that the referee Haines erred, as to defendant Matilda S. Letcher, in admitting the...
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