Jefferson v. Burhans, 1,005.

• Decision Date: 04 April 1898
• Docket Number: 1,005.
• Citation: 85 F. 924
• Parties: JEFFERSON v. BURHANS.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 924

JEFFERSON v. BURHANS.

No. 1,005.

United States Court of Appeals, Eighth Circuit.

April 4, 1898

This is a companion case to the one between the same parties which has just been decided. 85 F. 949. It relates to another real-estate transaction in which the parties were concerned. Ira W. Burhans, the defendant in error here, brought an action against Rufus C. Jefferson, the plaintiff in error who was the defendant below. The defendant in error will be hereafter designated as the plaintiff, and the plaintiff in error as the defendant; such being the relation which they occupied at nisi prius. The plaintiff's cause of action as stated in his complaint, is as follows: On June 2, 1890 he and the defendant entered into an agreement for the purchase of certain real property situated at Superior Douglas county, Wis. For the purchase of this property the defendant agreed to advance $50,000. The title to the property, however, was to be vested in the plaintiff; and he engaged to plat and sell the property as soon as possible and, as fast as sales thereof were made, to assign and turn over to the defendant all mortgages and notes that were received in payment for property sold, until the defendant was reimbursed the amount of money which he had expended in making the purchase, together with 8 per cent. interest thereon. After he had been thus reimbursed, the balance that might be received from sales of the property, consisting of money, notes, or mortgages, was to be equally divided between the plaintiff and the defendant. It was further agreed that, after the title to the property had been vested in the plaintiff, he should execute a quitclaim deed therefor in favor of the defendant, and deliver it to him, but the same was not to be recorded by the defendant unless he found it necessary to do so for his own protection. The defendant did not in fact furnish the sum of $50,000 to purchase the tract of land in question, as he had agreed to do, but only advanced the sum of $17,000. The balance of the purchase price, to wit, $33,000 was raised by the plaintiff by executing his notes for that amount, which were secured by mortgages on the land. He also advanced $2,875 in money to cover certain expenses incurred in the transaction. Afterwards, on or about August 1, 1890, the plaintiff and the defendant had a settlement with reference to sales of said property that had been made up to that date, at which settlement the defendant received from the plaintiff the sum of $17,000, with interest thereon, which he had advanced to consummate the purchase; and on or about August 1, 1891, they had a further final accounting and settlement with reference to the same transaction. At the latter settlement in August, 1891, $11,000 in cash and mortgages, which had been received from sales of the property, were equally divided between the plaintiff and the defendant. The residue of the land which remained unsold was also divided between the respective parties. At the time of the division of the unsold property, which had then been platted and subdivided into lots, the several lots assigned to the respective parties were subject to incumbrances for various sums, which had been executed by the plaintiff to raise the sum of $33,000, which the plaintiff had been compelled to raise in making the original purchase, because the defendant had failed to advance the full amount of the purchase money as he had agreed to do. In view of this fact, the defendant, at the time of the division of the property last aforesaid, undertook and agreed to pay and cancel all notes which had been executed by the plaintiff for the purpose last aforesaid, that were secured by mortgage upon lots that were set apart and conveyed to the defendant. The defendant also agreed to carry the mortgages existing upon that part of the property which was assigned and set apart to the plaintiff, which the plaintiff had executed for the purpose of raising the aforesaid sum of $33,000, until the plaintiff should be able to sell and dispose of the property, and thereby cancel the incumbrances existing on his own property. The defendant, however, failed to pay the incumbrances existing on that part of the property which had been set apart to himself; and in consequence of such failure the plaintiff was compelled to pay the same, and expended for that purpose the sum of $8,032.07. The present action was brought to recover the latter sum, which was expended by the plaintiff in paying his own notes that were secured by mortgages on the lots set apart to the defendant, as well as to recover a balance of certain expenses which he had incurred. The defendant, while admitting, in substance, the purchase of the property in question for the sum of $50,000, for the joint account of himself and the plaintiff, and his agreement to advance the purchase money, and while admitting the division of the unsold part thereof between himself and the defendant on or about August 1, 1891, denied that he had undertaken to discharge the mortgages executed by the plaintiff, which existed on those lots that had been set apart and conveyed to himself. He averred that James Kasson was jointly interested with himself and the plaintiff in the purchase of the property in question, and that said Kasson was a necessary party to the suit. He also averred that the plaintiff and himself had been concerned in the purchase of numerous other tracts or parcels of land situated in or about Superior, on joint account, all of which transactions were particularly described in his answer; and he prayed that an account might be taken and stated, which included all of their dealings, and that the partnership existing between them might be dissolved, and its affairs liquidated. To the answer, containing the aforesaid denial, and setting up substantially the aforesaid defenses, the plaintiff replied, in substance,...