Duhring v. Duhring

• Decision Date: 31 October 1854
• Citation: 20 Mo. 174
• Parties: DUHRING v. DUHRING. (Cross Appeal.)
• Court: Missouri Supreme Court

20 Mo. 174

DUHRING

v.DUHRING. (Cross Appeal.)

Supreme Court of Missouri.

October Term, 1854.

1. The widow of a partner of an insolvet firm is not entitled to dower in real estate bought by the firm as partnership property, and afterwards conveyed in payment of a partnership debt.

Appeal from St. Louis Circuit Court.

This was a petition by the widow of Andrew Duhring, for dower in a lot on Main street, in the city of St. Louis, in the possession of Henry Duhring.

Barrett Williams and Andrew Duhring were partners in business in St. Louis, from 1834 to 1839. The lot in question was, by Joseph Bouju and wife, on the 30th of July, 1836, conveyed to said Williams & Duhring, in consideration of $22,500, $5000 of which was paid in cash out of the funds of the firm, and for the balance, eight equal notes of the firm, secured by a mortgage, were given, payable annually. The grantees in the deed from Bouju were described as “Barrett Williams and Andrew Duhring, composing the firm of Williams & Duhring.” The habendum clause in the deed was as follows: “To have and to hold, &c., unto them, the said Barrett Williams and Andrew Duhring, and to their heirs and assigns forever.”

The firm had occupied a store on the southern half of the lot before the purchase, and continued to occupy the same store afterwards. A store upon the northern half they rented out. The purchase was entered upon the books of the firm as a partnership transaction. The lot was entered in the “property account,” the money paid in the “cash account,” and the notes given, under the head of “bills payable.” On the 10th May, 1839, before any of the notes secured by the mortgage had been paid, Barrett Williams, Andrew Duhring and his wife, the plaintiff, joined in a deed conveying the lot to the defendant. The firm of Williams & Duhring was indebted to the defendant about $7000, and the lot was taken by him in payment, he assuming the payment of the notes secured by the mortgage, all of which were afterwards paid by him. The firm was actually insolvent at the time of this conveyance, and in November following, failed and made an assignment. All their debts have never yet been paid. At the time of the conveyance to Henry Duhring, the plaintiff was under twenty-one years of age, for which reason, she now seeks to avoid the conveyance and obtain her dower in the lot. The defendant set up in his answer, that the plaintiff was not entitled to any dower in the lot, because it was bought, held and used by the firm of Williams & Duhring as partnership property; and that, even if she was entitled to dower at all, it was not until she had paid her proportion of the mortgage debt paid by him to Bouju. The cause was tried by the court without a jury. Barret Williams testified that the purchase of the lot by the firm of Williams & Duhring was a partnership transaction, and that entries were made upon the books as above stated. On cross examination, he stated that the lot was bought “as an investment, to keep until the firm closed business.” The court, after finding the facts as above stated in regard to the deed from Bouju, the mortgage, the deed to the defendant, the occupation of the lot, and the entries upon the books of William & Duhring, found that the purchase by said firm “was regarded, at the time of making the same, as a mere investment, with a view and intention of ultimately keeping the same.” Upon these facts, the court declared that the plaintiff was entitled to her dower in the undivided one-half of the lot, subject, however, to the payment of one-sixth of the debt secured by the mortgage to Bouju, and ordered a reference to ascertain the amount of principal and interest due defendant on the mortgage, after deducting the net rents and profits received, or which might, with reasonable diligence, have been received by him from the lot, not charging him with the increased rents arising from any permanent improvements erected by him, and making him reasonable allowance for money paid for taxes and repairs, &c. If the plaintiff should, within six months from the confirmation of the commissioner's report, pay one-sixth of the amount thus ascertained to be due the defendant, then her dower was to be set apart to her; if not, her dower was to be barred. From this judgment, both parties appealed. The cause was argued in this court by Mr. Casselberry, for the widow, and Mr. Shepley, for the defendant.

Mr. Casselberry made the following points:

1. The widow is entitled to dower, even where the partners purchase real estate with joint funds for partnership purposes. (2 Edwards' Ch. 28; Thornton v. Dixon, 3 Brown's Ch. 199; Bell v. Phyn, 7 Vesey, 453; Balmain v. Shore, 9 Vesey, 500; Coles v. Coles, 15 Johns, 159; 7 Serg. & Rawle, 438; Titus v. Neilson, 5 Johns. Ch. 452; Park on Dower, 106, 9 Law Lib.)

2. There is nothing in this case to show that the property was purchased for partnership purposes. On the contrary, one-half of the lot was rented out and never used by the firm; and the whole lot was bought “as an investment, to keep.”

3. The lot was held by Williams & Duhring as tenants in common and not as joint tenants by virtue of the act of 1835.

4. The court erred in requiring the widow to pay off a part of the mortgage before obtaining her dower. The mortgage of which defendant assumed the payment is to be regarded as a part of the price paid by him to Williams & Duhring for their interest in the lot. The judgment below in effect makes the widow pay a part of the defendant's debt, and gives him the land for less than he contracted to pay.

Mr. Shepley made the following points, among others:

1. That portion of the finding which states that the lot was purchased “as a mere investment, with the view and intention of ultimately keeping the same,” is not warranted by the evidence.

2. The lot, from the time of its purchase from Bouju, was partnership property. (Lancaster Bank v. Myley, 13 Penn. State, 544; Hoxie v. Carr, 1 Sumner, 173; Dyer v. Clark, 5 Metc. 579, 581; Boyers v. Elliott, 7 Humph 204; Pugh v. Currie, 5 Ala. 446; Pierce v. Trigg, 10 Leigh, 406; Edgar v. Donnelly, 2 Mun. 387; Smith v. Ramsay, 1 Gil. 373; Walker's Ch. 200; Sigourny v. Munn, 7 Conn. 11; 3 Howard (Miss.) 372; 5 Ala. 446; 1 Dev. & Batt. 510; Parsons on Contracts, p. 125; 3 Kent's Comm. (6th ed.) 37, and note at p. 39.)

3. Partnership real estate is to be treated as personal property, unless upon a dissolution of the firm and payment of all its debts, it is no longer needed for the purposes of the partnership; (5 Vesey, 189; 7 Vesey, 425; 1 Russ. & Mylne, 45; 1 Mylne & Keen, 649; 3 Id. 443; 11 Simons, 491, quoted in 71 Barb. S. C. 72; Buchan v. Sumner, 2 Barb. Ch. 165; 5 Metc. 562, 4 Id. 54; 10 Leigh, 406; 1 Dev. & Batt. Ch. 510; Pugh v. Currie, 5 Ala. 446.)

4. The wife is not dowable in partnership real estate needed for partnership purposes. (Parsons on Contracts, 128; 5 Gill. 26; Greene v. Greene, 1 Ham. 244; Richardson v. Wyatt, 2 Dess. 471; Woodbridge v. Wilkins, 3 Howard, (Miss.) 371; 4 Metcalf, 541; 5 Id. 562, 582; 10 Leigh, 406.) The only case to the contrary is Smith v. Jackson, (2 Ed. Ch. 28,) and the only authority cited to sustain it is 5 Vesey, 189, which has long since been overruled in England.

RYLAND, Judge, delivered the opinion of the court.

1. It will not be necessary, in our opinion, to consider all the points and questions raised by the parties on this record. Both parties complain of the judgment of the court below, and both bring the case here. The plaintiff alleges that the court erred in regard to the mortgage, and insists that she is entitled to dower in one undivided half of said premises, independent of the mortgage, and that she should not be required to redeem the same. She alleges that the right to set up said mortgage is barred by the statute of limitations, and that the defendant has no right to be substituted in the place of Bouju.

The defendant insists that plaintiff has not, and never had any right to dower in the lot, because it was purchased by the firm of Williams & Duhring as partnership property; was used as such; paid for, in part, by cash of the firm, and the notes of the firm given for the balance of the consideration. There can be little doubt that the purchase was made by the firm of Williams & Duhring. They were partners, doing business as merchants in St. Louis, in 1834, and were so engaged in 1836, when they bought the lot of Bouju. The deed from Bouju to them shows the purchase by the firm. The witness, Williams, says it was a purchase by the partnership; says, “the purchase took the shape of a partnership transaction on the books of said firm. There was a property account, and this lot was entered into that account. The cash paid was entered into the cash account, and the notes given for the purchase, were entered into the books under the head of “bills payable.” There were two stores on the lot; one was rented out by the firm, the other was occupied by it. He says “the lot was bought as an investment, to keep until we closed business.”

The partners, Williams & Duhring, executed a mortgage, which was also signed and executed by the plaintiff, the wife of Duhring, to Bouju, to secure the payment of the balance of the purchase money, being seventeen thousand five hundred dollars. The plaintiff was a minor when this mortgage was executed by her.

The firm of Williams & Duhring being largely indebted to Henry Duhring, the defendant, sold him the lot in 1839, and made a deed to him, which was also signed by the plaintiff and acknowledged by her. The consideration was the sum of $24.500--$7000 of which was then due and owing to Henry Duhring, by the firm; and he agreed to pay off the debt due under the mortgage to Bouju. The firm never paid any more of the original purchase money to Bouju than the first payment of $5,000. The balance was paid by Henry Duhring. The plaintiff was a minor when she executed, with the partners, Williams & Duhring, the deed...