Carlisle's Adm'rs v. Mulhern

• Decision Date: 31 October 1853
• Citation: 19 Mo. 56
• Court: Missouri Supreme Court
• Parties: CARLISLE'S ADMINISTRATORS, Appellants, v. MULHERN & KEYSER. Respondents.

19 Mo. 56

CARLISLE'S ADMINISTRATORS, Appellants,

v.MULHERN & KEYSER. Respondents.

Supreme Court of Missouri.

October Term, 1853.

1. Under the new practice, a court trying a cause without a jury need not set out in its finding those facts admitted in the pleadings.

2. Where two partners purchased a leasehold with partnership funds, and gave a deed of trust upon it, and after the death of one of them, the lease was sold under the deed of trust, it was held, that the lease was to be treated as partnership property, so as to entitle the surviving partner to administer the deceased partner's share of the surplus, after paying the debt, and not the administrator.

Appeal from St. Louis Court of Common Pleas.

Lackland and Jamison, for appellants.

1. The court below erred in not stating all the material facts admitted by the pleadings to be true, and those proven on the trial. New Code, art. 15, sec. 2. Gobin v. Hudgens, 15 Mo. Rep. 400. Brant v. Robertson, 16 Mo. 140.

II. The leasehold estate was held by the lessees as tenants in common. The lease was made to them in their individual names. 2 Randolph's Rep. 187. 5 Mo. 507. 15 J. R. 160. 5 Ohio Rep. 264.

III. If, however, the leashold was in fact partnership property, yet, as the lease was to the partners as individuals, and the surviving partner has suffered the appellants to pay one-half of the ground-rent and taxes with the money of the estate of the deceased, he cannot now be permitted to show that it was partnership property.T. T. Gantt, for respondent.

The court below found that the property sold by the trustees was, as to Carlisle and Keyser, partnership property, and that the partnership affairs were unsettled. The decision was a clear deduction from the facts found, and the finding is supported by the evidence.

GAMBLE, Judge, delivered the opinion of the court.

Carlisle and Keyser being partners, doing business in St. Louis, became interested in a lease of real estate in the city as partners, improved the same out of their partnership funds, and continued to hold the same as partnership property until the death of Carlisle, whose administrators bring this suit. While both were alive, they gave a deed of trust on the property, to secure a partnership note, the defendant, Mulhern, being the trustee. After the death of Carlisle, Keyser, the surviving partner, continued to administer the effects of the firm. The note secured by the deed of trust not being paid, the trustee, after the death of Carlisle, sold the property in pursuance of the power given him, and upon that sale there was a surplus in his hands after paying the note. The controversy is about this surplus which has been paid over to Keyser, Carlisle's administrators claiming one-half of it as the money of their intestate, and Keyser, the remaining partner, claiming that it is partnership funds, which he is entitled to administer and with which he claims the right to pay the partnership debts. The liabilities of the firm exceed its assets, and Keyser is in advance to the firm to a considerable amount. The affairs of the firm are not settled.

1. It is objected to the judgment in this case, that the court has not, in its decision stated all the material facts in the case. This objection, it is understood, is intended to present the question whether the court, when trying a case without a jury, shall state in its decision, the facts admitted in the pleadings of the parties, as well as those controverted...