Dyer v. Morse

• Decision Date: 08 January 1895
• Citation: 39 P. 138,10 Wash. 492
• Parties: DYER v. MORSE ET AL.
• Court: Washington Supreme Court

39 P. 138

10 Wash. 492

DYER v. MORSE ET AL.

Supreme Court of Washington

January 8, 1895

Appeal from superior court, Clallam county; James G. McClinton Judge.

Action by C. P. Dyer, administrator, against D. W. Morse and others to determine title to realty. From a judgment for plaintiff defendants appeal. Reversed, with instructions to dismiss the action.

Struve Allen, Hughes & McMicken, for appellants.

Smith & Felger and Harry Ballinger, for respondent.

HOYT J.

This action was heard in the superior court upon stipulation of counsel, and an agreed statement of facts. By the stipulation it was agreed that the cause should be tried as one in equity, upon such statement of facts, without the introduction of other testimony. From this statement it appeared that in October, 1865, Samuel Atkinson and George E. Allingham were doing business as partners in Clallam county; that as such partners, and for the use of the partnership, they acquired title to the real estate in controversy in this action; that said partnership continued until April, 1870, when Allingham died, in the province of New Brunswick, leaving a last will which devised such real estate to the father of the plaintiff; that, after the dissolution of the partnership by the death of said Allingham, the said Atkinson, as surviving partner, closed up its affairs, and appropriated its property to the payment of the debts of the firm; that the indebtedness of the partnership at the time it was so dissolved was in excess of its assets, and that said Allingham was indebted to his partner in a large sum; that, as such surviving partner, the said Atkinson took possession of the property in question, to reimburse himself for moneys advanced by him to pay the partnership debts; and that in 1883, as such surviving partner, he conveyed such property to the defendants, or those under whom they claim. There were other facts set out in such statement, but these are the only ones which it will be necessary to refer to for the purposes of this opinion. The superior court found that the plaintiff had the better title to the property, and entered a decree in his favor.

We find it unnecessary to discuss all the reasons for reversal relied upon by appellants, as the respondent seeks to sustain the decree upon only two substantial grounds: One, that since the deed from Atkinson to the appellants, or those under whom they claim, upon its face purported to convey only his individual interest, and was joined in by his wife, it must be assumed that it was not intended to convey more than the interest of said Atkinson in the property, as a tenant in common. This claim would have much force, were there no facts in the case tending to explain or help out the deed; but, unfortunately for this contention, it is agreed in the statement of facts that this conveyance was made by Atkinson as the surviving partner of the firm, and in the light of this concession it cannot be held, in a court of equity, that it only had the effect of conveying his individual interest.

The other question relied upon by the respondent grows out of our statute for the settlement of partnership estates. It is contended in his behalf that this statute is exclusive, and that under the terms thereof all partnership estates must be settled, and that since its enactment a surviving partner has no authority to deal with partnership effects, excepting as therein provided. If this is so, the decree of the superior court must be affirmed, for it is not contended that anything was ever done in relation to this property, or the other effects of the partnership, under the provisions of this statute; and it would follow that the property, so far as it is in existence, would yet be partnership property, and that the surviving partner, if in possession, would hold for the heirs of the deceased partner as well as for himself. The appellants attack this position and claim that...