Evans v. Gibson

• Citation: 29 Mo. 223
• Parties: EVANS, Respondent, v. GIBSON, Appellant.
• Decision Date: 31 October 1859
• Court: Missouri Supreme Court

29 Mo. 223

EVANS, Respondent,

v.GIBSON, Appellant.

Supreme Court of Missouri.

October Term, 1859.

1. Where under a judgment against several persons for a partnership debt a levy is made upon partnership property or upon the private property of one partner, and one of the partners purchases the same at the execution sale, the sheriff's sale will not, it seems, operate in equity a transfer of the title to the purchaser; it will still be subject to levy under the same judgment if the same remain unsatisfied.

2. Where one partner expends the partnership funds in the purchase of property in his own name, he will hold the same in trust for the partners.

3. The relief afforded by the decree in a cause should conform to the case made out in the petition.

Appeal from St. François Circuit Court.

This was a suit by Jesse R. Evans and James S. Evans against James Gibson. The petition was substantially as follows: Plaintiffs state that the defendant, in 1854, entered into a contract in writing with Alfred Reed--who was at the time acting partner of the firm of A. Reed & Co., in which plaintiffs were partners, which firm was afterwards known under the style of J. S. Evans & Co.--to convey to said Reed or the firm two certain lots of ground in Kennett's square, of about an acre each; that said contract has been delivered over to defendant by Reed for the purpose of cheating and defrauding plaintiffs; that said lots were purchased by Reed for the firm, and he paid for them out of the means of the firm; that he improved them, expending some $1,000 or $1,200 in erecting substantial buildings upon said lots, out of the funds of the partnership; that Reed put only a small amount of money or property in the firm, and the said firm and its business was carried on mostly by the means and credit of plaintiffs; that Gibson was to receive for said lots eighty dollars; that he did receive, in part payment, thirtyseven dollars and seventy-eight cents in goods from the store of J. S. Evans & Co.; that afterwards James S. Evans, in behalf of himself and his partners, tendered Gibson fifty dollars as the balance of purchase money and demanded a conveyance.

Plaintiffs further stated that in 1856 judgments were rendered against said firm, composed of A. Reed, J. S. Evans, and Jesse R. Evans, which were a lien upon their interests in said land; that under one of these judgments in favor of James A. Eddy and others, an execution issued and was levied upon said lots, and James S. Evans became the purchaser; that the sheriff's deed conveyed to said J. S. Evans all the right Reed had at the date of the rendition of the judgment; that Reed, being the acting partner, used the property and cash of the firm for his own private purposes; that so soon as he found out that his iniquitous practices had been discovered, he, for the purposes of injuring plaintiffs, gave up to Gibson the written obligation for a deed for the lots above mentioned, advising Gibson to contend for the lots as his, and if he succeeded in cheating plaintiffs out of what they had expended in the purchase and improvement of said lots, to pay over to Reed a certain portion of the proceeds; that defendant had full knowledge of Reed's fraudulent designs and practices, and conspired to assist Reed in cheating them out of the lots and the money expended upon them. Plaintiffs bring into court the money that may be due Gibson on the purchase of said lots, and pray that he may be compelled to bring into court the written agreement above referred to; and that he may be compelled by a decree of court to convey the lots in question to plaintiffs.

It appeared in evidence that the judgment in favor of Eddy and others was rendered November 1, 1856. The title bond referred to was given up to Gibson November 21, 1856. There was evidence introduced tending to show that the lots were purchased and improved with partnership funds. After the evidence was closed, the court allowed the plaintiff to amend the petition by striking out the name of Jesse R. Evans as plaintiff, and rendered a decree vesting the property in the plaintiff James S....