Dixon v. Dixon

• Decision Date: 02 December 1915
• Docket Number: No. 17518.,17518.
• Parties: DIXON v. DIXON.
• Court: Missouri Supreme Court

181 S.W. 84

DIXON v. DIXON.

No. 17518.

Supreme Court of Missouri, Division No. 1.

December 2, 1915.

Appeal from Circuit Court, Carroll County; Frank P. Divelbiss, Judge.

Action in equity by Benjamin W. Dixon against James W. Dixon and others. Judgment for plaintiff, and defendant Dixon appeals. Reversed and remanded.

Guy Whiteman, of Norborne, and Jones & Conkling, of Carrollton, for appellant. Lozier & Morris, of Carrollton, for respondent.

BOND, J.

Action in equity to divest title to 90 acres of land in Carroll county out of defendant, J. W. Dixon, and vest it in the partnership alleged to be composed of himself and his son, Ben W. Dixon, to the end that the land may be subjected to the payment of partnership indebtedness. The suit was brought by the son against the father and one of the individual creditors of the father who claimed title by virtue of a purchase under an execution sale and a sheriff's deed to the land. A partnership creditor was also joined as defendant. The court granted the relief prayed, and the individual creditor of J. W. Dixon appealed.

I. The questions presented are whether the evidence established that a partnership existed between the father and the son, and that the land in question was part of the assets of the firm. The testimony of the formation of the partnership is confined to the statements of the father and the son. The version given by the father is in substance that after having been discharged in bankruptcy in 1903, he was left with $165, and his son, B. W. Dixon, than a lad of 15 or 16 years of age, was the owner of a horse which had been given him by his grandfather and which he sold for $140; that thereupon he, the father, first "gave his son his time" and then agreed with him that they should unite their means and buy Western horses as partnership property. The exact language of this witness is, to wit:

"A. I told Ben I would take what little money I had and what little money he had and put it together, and we would go to Montana and see if we could buy a load of horses and make a little money. He had $140 and I had $165. Whatever we made would be partnership property, and we bought a load of horses. Q. Did he consent to that? A. Yes, sir; he stayed here."

The testimony of the son on this subject is, to wit:

"Q. State what that arrangement was? A. Well, my father told me he didn't have anything to give me only my time and we would — Q. Give you that? A. Give me that and put the money we had gotten for the horse and what he had together and form a partnership. Q. How much money did he have? A. About $165, I think. Q. And you and your father put these amounts together, did you? A. Yes, sir. Q. And formed a what? A. Partnership. Q. When had your father given you your time prior to this? A. I didn't understand the question. Q. When had your father given you your time? A. After he broke up. Q. Now, what kind of a business was the partnership to engage in? A. Trading in horses. Q. Did you have any definite plan as to what you were to do at that time as to what you were to trade in? A. He was going to Montana after Western horses. Q. Did he go? A. Yes, sir. Q. Do you remember about when he went? A. In July, I believe. Q. 1903? A. Yes, sir. Q. What money did he take with him? A. Took the $140 and $165 that we formed a partnership with."

These witnesses subsequently stated that they were to take their respective expenses of living out of the partnership, allowing all other earnings to remain; that they were to share equally in its profits and losses; and that no time was fixed for the termination of the firm or any accounting between them. About three years thereafter the evidence shows that the father and son were engaged at the town of Hale in a livery, feed, and sale stable business, and that the transactions of this concern were conducted in the partnership name, and that it kept current accounts with one or two banks. The evidence further shows that a number of transactions concerning lands were executed by J. W. Dixon and his wife alone, and that the son was not a party to any of the contracts concerning these dealings in real estate. The father and son stated generally that the money employed by the father in these transactions was the earnings of the partnership agreed to be formed in 1903 as set out in the above testimony. The evidence does not show, other than the statements of these two witnesses, that the son, B. W. Dixon, had any part or lot in these transactions, nor does the testimony demonstrate that the money used by the father in trading in real estate was taken out of any banks wherein any firm of J. W. Dixon & Son had deposited any earnings of the livery business conducted by him, or any money to its credit.

The testimony further shows that J. W. Dixon, the father, engaged in his own name in partnership on equal terms, first, with Mr. Todd and afterwards with Mr. Doyle in trading in horses, and neither of these persons had any knowledge that the son, B. W. Dixon, was interested in the copartnership that they had formed with the father. In both instances the other parties loaned to the father the amount which he was to contribute to the capital stock. The particular transaction out of which the present action arose was the purchase by the father, J. W. Dixon, of the 90 acres of land in controversy on the 29th of February, 1908, at which date his son, B. W. Dixon, still lacked about 14 days of being 21 years of age. The title to the land was taken by J. W. Dixon in his own name, and was incumbered by two deeds of trust executed by him and his wife. He testified that the conveyance and the deeds of trust were made that way on account of the minority of B. W. Dixon at the time the land was purchased and the necessity for executing deeds of trust to secure outstanding mortgages, though two of these incumbrances were not made until after the majority of the son. About November 20, 1909, J. W. Dixon and wife executed a deed of trust for $4,000 upon the land for the purpose of taking up the prior incumbrances thereon. On February 21, 1912, a second deed of trust for $1,100 was executed on the land in controversy by J. W....