Lefebure v. Henry Lefebure Sons Co.
| Decision Date | 11 May 1926 |
| Docket Number | 37324 |
| Citation | 208 N.W. 853,202 Iowa 1053 |
| Parties | MARGARET M. LEFEBURE, Guardian, Appellee, v. HENRY LEFEBURE SONS COMPANY, Appellee. HENRY W. SHANK, Appellant, v. JOHN LEFEBURE et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 16, 1926.
Appeal from Linn District Court.--F. L. ANDERSON, Judge.
Henry Lefebure was the owner of a large quantity of land, upon which he was conducting a thoroughbred-stock business. He died in 1917. The appellant, Henry W. Shank, and his son William H. Shank, now deceased, for whose estate appellant is executor, held Lefebure's notes. Margaret Lefebure was the widow, and Theodel, Regis, and Emil (who had been associated with Henry in business), were adult children. There were five minors. The widow, Theodel, and Regis were administrators. By an arrangement with the administrators they (Margaret, Theodel, and Regis) gave Shank their personal notes, in place of the notes of decedent, and no claim was filed against the estate. On June 30, 1919, the widow and the three adult children, Theodel, Regis, and Emil, entered into a copartnership agreement to continue the Henry Lefebure business. This agreement stipulated:
"The capital of the partnership shall consist of the one-third part of the estate of said decedent, now owned by the said Margaret M. Lefebure, surviving wife, and one twelfth each owned by Theodel A. Lefebure, Regis E. Lefebure, and Emil F Lefebure; and a leasehold of the interests of Charles B. Lefebure, Richard M. Lefebure, Armand L. Lefebure, Henry P. Lefebure, and Mary Margaret * * * Neither party shall * * * suffer to be done, anything whereby the capital of the property of the partnership may be attached or taken in execution, and each partner shall punctually pay his separate debts and indemnify the other partners and the capital and property of the partnership against the same * * *"
The articles required a complete inventory to be made at the time, and also at the end of each year, in order that a full accounting of the interests of the minors should be preserved. They required also an annual accounting of all the capital, etc., and provided for sharing the profits and losses proportionately to contribution to capital. The partnership was to expire in 12 years, at which time the youngest child would become of age. It was provided that the property of the partnership, on termination, should belong to the members in the same proportions as then owned. The minors were to be admitted on attaining majority. The widow, Margaret, was the guardian of the minors. She filed in the guardianship proceedings an application for authority to make the lease to the partnership of the minors' interest, attaching a copy of the articles. Authority was granted accordingly, and the lease of the minors' interest executed. The copy of articles attached to this application, however, appears to have been removed. The estate was closed July 2, 1919. The final report of the administrators recited the making of the partnership agreement by Margaret, Theodel, Regis, and Emil, under the name of "'Henry Lefebure Sons Company,' owners of an undivided 7/12ths of the real estate and personal property of the decedent, and said copartnership is lessee from the guardian of the minor heirs of said decedent of the remaining undivided 5/12ths interest * * *" On December 3, 1921, Shank brought suit upon the notes, and recovered judgments January 13, 1922. On December 13, 1921, Margaret, as guardian, filed application for the appointment of a receiver of the partnership; and on the same date, with consent of the partners, defendant receivers were appointed. The case comes here from the denial of Shank's application filed in the receivership proceedings February 28, 1923, for the establishment of his judgments as a lien upon the judgment defendants' interest in the real estate and proceeds in the hands of the receiver.
Affirmed.
Deacon, Sargent, & Spangler, for appellant.
Stewart, Penningroth & Holmes and Barnes, Chamberlain, Hanzlik & Thompson, for appellees.
MORLING, J. DE GRAFF, C. J., and EVANS and STEVENS, JJ., concur.
Appellant 's judgments are against Margaret, Theodel, and Regis individually. As widow and heirs of decedent, they acquired interests in the real property of the estate, amounting to 6/12. The other partner, Emil, acquired 1/12. Appellant's claim is that his judgments are a lien upon the 6/12 interest superior to the rights of the partners and of the partnership receivers and creditors. The only error assigned is to the finding that the title to these interests was vested in the partnership. The argument in support of the assignment of error is that, by practical construction of the articles of copartnership, the partnership acquired only a leasehold interest in the 7/12, as they did in the 5/12; that no one was misled by any misrepresentations by the partners; and that the partnership agreement is not sufficient to operate as a conveyance of the individual interests to the partnership.
The claim of practical construction is based upon the execution of mortgages by the widow and heirs, and upon the widow's claim and allowance of homestead right, and upon declarations and proceedings appearing from time to time in the receivership proceedings, as follows: An order permitting the issuance of receiver's certificates declared them to be a lien "upon the entire chattel property and leasehold interest belonging to said copartnership, income and earnings thereof, and all of the property rights and interests of said copartnership," etc. On an application filed January 3, 1922 (by whom, not shown), a judgment against Theodel and Regis was, in effect established as a lien upon their interests, subject to the leasehold. In an application filed November...
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