King v. Weeks
| Citation | 70 N.C. 372 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 31 January 1874 |
| Parties | A. J. and M. C. KING v. DRURY WEEKS and WM. H. THOMAS. |
A purchase by a man in his own name with funds in his hands of a fiduciary nature, creates a resulting trust in favor of those money is employed in the purchase.
Therefore, where land has been purchased with partnership funds, although it be conveyed to one partner only, yet it becomes partnership property.
CIVIL ACTION, (for the recovery of certain lots in the town of Murphy,) tried before Gloud, J., at Fall Term, 1873, of the Superior Court of CHEROKEE county.
The case as settled and sent up with the record to this Court, states:
That Drury Weeks, the defendant, as trustee of one Brabson, sold two lots in the town of Murphy, which Brabson had conveyed to him, to secure a debt due to the firm of Thomas & King, and that J. W. King, the father of the plaintiffs in this action, and a member of the firm of Thomas & King, bought the same, and took the deed therefor to himself individually. King paid no money or or other consideration to Weeks, the trustee, but allowed his bid to be credited on Brabsons account, which was secured in the trust, the bid being less than the account. King died in 1845, leaving the plaintiffs, his heirs-at-law, and without having had any settlement of the partnership affairs, with his co-partner, Thomas.
As the case in this Court turned upon the instructions given below, and which are fully set out in the opinion of Justice SETTLE, the statement of the evidence offered in regard to the settlement of the partnership affairs by the administration of J. W. King, not being relevant, is omitted.
Defendant excepted to the charge of his Honor, and upon the return of a verdict in favor of the plaintiff, moved for a new trial. Motion refused. Judgment and appeal by defendant.
T. D. Johnston, with whom were McCorkle & Bailey and Gudger, for appellants :
1. The complaint does not state a sufficient cause of action, in that while it alleges that the plaintiffs are the owners, it merely states further that the defendant “withheld” possession: non constat, but that they rightfully withheld. This could have constituted a ground for demurrer. C. C. P., sec. 95, subdivision 6. But is expressly saved from waiver by failure to demur by C. C. P., sec. 99.
2. The answer is not frivolous. The complaint consists of a general statement of ownership and a withholding, which is denied. How, otherwise, could a legal title be tested? Not guilty in ejectment devolved upon the lessor of John Doe, proof of his right of entry at the date of the demise, and the defendant's possession. It does not fall within the principle of Flack v. Dawson, 69 N. C., 42.
3. The pleadings present a clear issue as to whether the property in question became partnership property, &c.
The fourth issue was immaterial, and was sufficient to decide the real matter in controversy. When at common law, under its logical rules of pleading, an immaterial issue was joined, the Court would award a repleader. Stephens on Pleading, 98 and 99.
As the pleadings under the new system, especially quasi equity pleadings, do not tend to the production of an issue, a motion for repleader is supplied by a motion for a proper issue under the rules. Reg. Gen., 65 N. C., 705, 3, 4 and 5, and this Court will retain the cause. Barnes v. Brown, 69 N. C., 439.
4. If, as the system of law and equity are blended, this Court shall treat the case as if this issue was disarmed, then we submit:
That the purchase of the property by the partner King, with partnership effects, as clearly shown, entitled the other party to treat it as partnership property, and does not fall within the statutes of Frauds. Chiply v. Keaton, 65 N. C., 543; Lindley on Partnership, pp. 414, 421; Cary on Partnershiy pp. 26, 166; Adams' (last ed. Am. Notes) 33 top, 166, note. Hargrove v. King, 5 Ired. Eq., 430.
5. We submit, that as Mrs. King, (now Mrs. Hyatt,) the administratrix, had a right to settle up the partnership, and the property in question had passed into the firm at one time. Lindley, 463, the plaintiffs are, in equity, in privity with the administratrix, quoad this fund.
6. We further submit that his Honor committed an error to our prejudice in instructing them that there was no evidence of a settlement between the plaintiff and the surviving partner, Thomas. There was not, nor was it pretended; and it was, we submit, a proposition irrelevant to the merits, and calculated to mislead and confuse the jury. They may well have supposed, from the statement that it was material and a necessary part of the defendant's proof.
7. We further submit that no full and proper cause can be made without making Mrs. Hyatt, nee King, the administratrix, a party.
A. T. & T. F. Davidson, and Folk, contra .
The plaintiffs insist that even if his Honor was wrong in the instructions to the jury, it would not be good ground for a new trial, because the pleadings raise no issue to which such instruction could be applicable; and further, no such issue was tendered by the defendant or submitted by the Court.
In fact, the answer raises no issue at all. The first paragraph is...
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Miller v. Miller
... ... children or distributees of Minnie Fair Miller. This ... principle of law was expressed in King v. Weeks, 70 ... N.C. 372, where it is written: "A purchase by a man in ... his own name, with funds in his hands in a fiduciary ... capacity, ... ...
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Elliott v. Shuler
...I am strongly inclined to the opinion that this position is well taken, and is sustained by the authorities cited in brief: King v. Weeks, 70 N.C. 372; Bank Simonton, 86 N.C. 187. I will not even intimate an opinion as to the force and effect of the matter of estoppel set up in the answer, ......
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Miller v. Miller
...trust was created in favor of the children or distributees of Minnie Fair Miller. This principle of law was expressed in King v. Weeks, 70 N. C. 372, where it is written: "A purchase by a man in his own name, with funds in his hands in a fiduciary capacity, creates a resulting trust in favo......
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Bowen v. Billings, Boise & Co.
... ... 1. Land ... purchased with partnership funds, though conveyed to one ... partner, is partnership property. King v. Weeks, 70 ... N.C. 372 ... 2 ... Though title is taken in name of wife of one partner, the ... land is subject to the ... ...