Bowman v. Pettit

• Decision Date: 21 April 1900
• Citation: 56 S.W. 780,68 Ark. 126
• Parties: BOWMAN v. PETTIT
• Court: Arkansas Supreme Court

56 S.W. 780

68 Ark. 126

BOWMAN v. PETTIT

Supreme Court of Arkansas

April 21, 1900

Appeal from Arkansas Chancery Court. JAMES F. ROBINSON, Chancellor.

Decree affirmed.

P. C Dooley, for appellant.

There was no partnership. The parties were simply tenants in common. Sand. & H. Dig., § 704; 31 Ark. 580. The parol agreement to perfect title could not give any lien on the lands as against a bona fide purchaser. Sand. & H. Dig § 3469. Pettit's possession was the possession of both. 100 U.S. 37. When a good consideration passes from the grantee to the grantor, and he buys in good faith, a conveyance will be upheld. 46 Ark. 542, 551; 49 Ark. 20; 39 Ark. 75. There must be a fraudulent intent on the part of both parties. 23 Ark. 258; 41 Ark. 316; 17 Ark. 146; 31 Ark 554; 41 Ark. 316. The evidence fails to show fraud. 18 Ark 123; 9 Ark. 482; 26 Ark. 20. Appellee had no right of lien. 56 Ark. 624; 61 Ark. 547; 52 Ark. 473; 82 Ky. 622; Jones Lien, § 1155; 1 McMull. Eq. 69; 7 J. J. Marsh, 138; S. C. 23 Am. Dec. 387. Under Sand. & H. Dig., §§ 5918, 5919, the co-tenant has a right of action, but no lien, for the costs of improvements. 64 N.W. 790; 14 Am. Dec. 585. There is no charge for taxes paid upon the land purchased from a co-tenant without notice. 53 Ia. 708. Bowman is an innocent purchaser.

Cockrill & Cockrill, for appellee.

No particular formalities are essential to a partnership. George, Part. 20, 21, 30. There was a partnership relation here. 17 Am. & Eng. Enc. Law, 854; 27 Am. Dec. 618. The law gives one partner a lien on the partnership lands for whatever he pays in excess of his share of the firm debts. Tied. Real Prop. § 245; Freeman, Coten. etc. § 120. Even if the parties were only tenants in common, appellee had a lien for the cost of improvements. Jones, Liens, 1149-50; 10 Barb. 626; Freeman, Coten. etc. § 263; 2 Story, Eq. Jur. §§ 1234, 1237; 2 Sugd. Vend. § 426; Dart, Vend. & Pen. §§ 433, 434; Pars. Cont. § 282; Jones, Liens, §§ 1154, 1174; 3 Dana, 321; S. C. 28 Am. Dec. 74; 107 Wis. 8; 107 Ia. 124; 42 Ia. 36; 54 Miss. 323; Tied. Real Prop. § 254. On partition appellee was entitled to compensation for advances. 21 Ark. 539; 67 Ark. 455. Appellant is not an innocent purchaser. Possession of the lands by appellee was construction notice to him. 16 Ark. 543; 33 Ark. 465; 54 Ark. 499. The circumstances in evidence show actual notice.

OPINION

HUGHES, J.

This is a suit in which appellee seeks to partition a ranch jointly owned by him and Husted Osterhaudt, and to charge Osterhaudt's half interest with half of the money expended by appellee in the defense of the title and in the repair of the ranch. Appellee alleged that he and Osterhaudt were partners in the purchase of the ranch; that, in pursuance of their agreement, he (appellee) toook charge and possession of the ranch and of the defense of several suits which were instituted against them by parties holding tax titles; that he expended in looking after and taking care of the ranch, in payment of back taxes, expenses of litigation, and current taxes, $ 1,424.02. He attached an itemized statement, which showed in detail expenditures aggregating the above amount, one-half of which, to-wit: $ 702.01, was claimed to be due from Osterhaudt, less a credit of $ 289.01, leaving a balance due appellee of $ 423, with interest. Appellee further alleged that Osterhaudt on February 7, 1897, conveyed the ranch to appellant Bowman; that said conveyance was without appellee's knowledge or consent, and was made with fraudulent intent to defeat appellee, out of the sum now sued for; that Bowman had notice of the partnership, litigation, etc.; that he (appellee) had a lien upon all of said lands for the payment of said $ 423, and that Bowman took subject to it. Appellee prayed for partition, and that Bowman's half interest be sold to satisfy his claim and lien.

Bowman, appellant, answered, consenting to a partition, but denying the partnership between appellee and Osterhaudt, denying that appellee had made advancements for which Osterhaudt was liable, and claiming to bean innocent purchaser. Husted Osterhaudt did not answer. Appellee filed a motionand amended complaint, asking that Mrs. Osterhaudt be made a party defendant, and for cause of action against her alleged that appellant Bowman, as part of the purchase price of the half interest from Osterhaudt, executed a mortgage for $ 400 to Mrs. Osterhaudt, the mother of Husted Osterhaudt; that Mrs. Osterhaudt gave no consideration for the mortgage; that Osterhaudt caused the mortgage to be executed to his mother to prevent appellee from collecting the sum due him; that Osterhaudt was a non-resident, and had no property of any kind in this state except the mortgage. Appellee prayed that Bowman be restrained from paying anything on said mortgage, and that any judgment that might be rendered for appellee be declared a lien upon said mortgage, and for all other proper relief. Mrs. Osterhaudt did not answer.

Pettit and Bowman each testified in his own behalf. Their testimony with some documentary proof, was all the evidence in the case. A decree by default was rendered against the Osterhaudts, declaring the mortgage to Mrs. Osterhaudt void, and a decree was rendered in favor of appellee against appellant, Bowman, declaring appellee's claim of $ 423, with interest, a lien upon the half interest of Bowman, and ordering it sold to satisfy the lien. The court in its decree found as follows: "Plaintiff had full charge and control of said lands; that there was considerable litigation over said land, in regard to the title, and that improvements were made on said land, and that the plaintiff paid out in cash, in defending the title to said land and in making improvements, the different items set out in the account filed with the...