Lutz v. Billick
| Decision Date | 22 November 1915 |
| Docket Number | No. 30189.,30189. |
| Citation | 154 N.W. 884,172 Iowa 543 |
| Parties | LUTZ ET AL. v. BILLICK ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Louisa County; Oscar Hale, Judge.
Suit in partition was consolidated with an action by the administrator to sell, and resulted in a decree as prayed. Lewis A. Billick, who claimed to own an undivided one-half of the land, appeals. Modified and remanded.Courts & Tomlinson, of Morning Sun, and Blake & Wilson, of Burlington, for appellants.
Weaver, Briggs & Erwin, of Wapello, and Molsberry & Reany, of Columbus Junction, for appellees.
J. J. Billick died seised of 240 acres of land and leaving him surviving a widow, Susan A. Billick, who died in 1899, and five sons and one daughter. Of the sons, Seef Billick remained single, and died in 1897. Freed Billick departed this life in 1910, leaving him surviving five children and four grandchildren by a deceased daughter. T. J. or Jefferson Billick died January 1, 1913, at the age of 65 years. Lewis A. Billick was born in 1872, and therefore was 15 years old at the time of his father's death. The plaintiff Ella Billick intermarried Frank Lutz February 14, 1900, and had lived on the premises up to that time. James H. Billick is still living. At the time of his death title to about 450 acres of land stood in the name of T. J. Billick, and in this suit the plaintiffs pray for the partition of said land. Lewis A. Billick, by way of cross-petition, alleged that he was joint owner of said premises with deceased T. J. Billick; that he and the deceased entered into an oral agreement about the year 1889, under the terms of which they were to “take over and acquire all the land of which their father, James J. Billick, died seised; that they should work together jointly, cultivate the land and engage in the business of farming and stock raising together, and by their joint efforts and the proceeds of such business pay all of the debts, claims, and incumbrances against the estate and the lands of which their father died seised, and in that way acquire said lands and own them together in equal shares;” that, in pursuance of said agreement, they did carry on the farm by raising stock and cultivating the soil until the death of said T. J. Billick, and from the proceeds paid all of the debts and claims against the estate of their father, including incumbrances thereon, and acquired title to said lands, and out of the proceeds of said business acquired the other real estate; that, as a matter of convenience, title was taken in the name of T. J. Billick, and he held the same in trust for himself and Lewis; that all of said lands were paid out of partnership funds under the foregoing arrangement, and defendant Lewis A. Billick prayed his ownership of an undivided one-half thereof be decreed. This claim was put in issue. There was also an application for the sale of the land in order to pay claims against the estate, and this was consolidatedwith the first-mentioned suit. From this statement it is apparent that the main issue is whether the land was acquired as averred by Lewis A. Billick. The contention as to one tract may be disposed of at the outset. Title to the S. E. 1/4 N. W. 1/4 and S. W. 1/4 N. E. 1/4 of section 13 in township 76 was acquired by T. J. Billick January 21, 1879, or about 8 years prior to the death of J. J. Billick, and by him retained until his death. Whatever may have been the subsequent arrangement, it could not have entered the purchase or payment of the purchase price of this 80 acres. Title to the S. W. 1/4 of section 13 and E. 1/2 of the S. E. 1/4 of section 14 was obtained by deceased from the administrator of his father's estate. Of the other land he acquired title to 80 acres in 1899, and to other portions of the farm in 1901 and 1902 and 1911. In other words, all the land except 80 acres deeded to him in 1879 was acquired and title taken in the name of T. J. Billick after his father's death. The indebtedness of J. J. Billick at that time equaled, if it did not exceed, the value of the estate, and the theory of the plaintiff is that shortly after his father's death T. J. Billick, who was then unmarried and 39 years of age, proposed to his brother Lewis A. Billick, then a little over 15 years old, that they operate the farm together, and out of the profits pay the debts of the estate and acquire the land, and that they would share alike in the property so obtained. An examination of the record has convinced us that such an agreement was entered into and fully performed. As the testimony of neither party is available, death having closed the mouth of one, and the law that of the other, we necessarily must revert to what deceased may have said with reference thereto in connection with other proven facts.
[1][2][3] He appears to have talked freely to his neighbors concerning the arrangement with his brother, and what he said leaves no doubt but that shortly after his father's death, and before title was acquired to any of this land, he proposed to Lewis that, if he would join him in handling and working the farm left by his father, they would acquire title thereto, and each should have an equal share therein, that Lewis accepted the proposition, and that during all the years following they continued on the land under this arrangement, and out of the profits derived from its use and their joint labors and enterprise paid whatever was expended in acquiring title and improving the land. Lewis did most of the work on the farm, and Jefferson transacted most of the business--practically all of it prior to Lewis attaining majority. Later Lewis was consulted in business matters, such as leasing portions of the farm, and he appears to have been in charge of disposing of watermelons, to the raising of which the land seems to have been adapted. Evidence of the manner of operating the farm, how each participated, and the disposition of the profits was pertinent to the inquiry as to whether the brothers were copartners, and, if so, when they became such. Illinois Malleable Iron Co. v. Reed, 102 Iowa, 538, 71 N. W. 423. The crucial test is whether they intended to become such. Profits certainly were contemplated for the purpose was to acquire the title to the land through the payment of debts and incumbrances against it, but nothing was said of sharing losses. This was clearly to be implied from their undertaking to share profits, the nature of the enterprise, and their relation thereto. Johnson Bros. v. Carter & Co., 120 Iowa, 355, 94 N. W. 850;Richards v. Grinnell, 63 Iowa, 44, 18 N. W. 668, 50 Am. Rep. 727. See Heard v. Wilder, 81 Iowa, 421, 46 N. W. 1075;Irwin v. Cooper, 111 Iowa, 731, 82 N. W. 757. If there was a partnership then, and the land was purchased with the money or property belonging thereto, and title taken in the name of one partner, the law is well settled that a resulting trust arose in favor of the firm. Paige v. Paige, 71 Iowa, 318, 32 N. W. 360, 60 Am. Rep. 799;Kringer v. Rhomberg, 120 Iowa, 472, 94 N. W. 1115.
The principle tersely and accurately stated, found in 2 Story, Eq. § 1207, is quoted with approval in Paige v. Paige, supra:
A partnership is treated in law as a distinct and separate entity, and the purchase of property in the name of one of its members or of a stranger with partnership property raises a resulting trust in its favor precisely as though an individual's property had been made use of for that purpose. In re Estate of Mahin, 161 Iowa, 459, 143 N. W. 423;Amidon v. Snouffer, 139 Iowa, 159, 117 N. W. 44, and cases cited therein; Culp v. Price, 107 Iowa, 135, 77 N. W. 848. See Western Securities Co. v. Atlee, 151 N. W. 56.
The theory of appellant is that a partnership was entered into and money belonging thereto was paid for the land, and, if so, deceased held same in trust for such partnership, and Lewis should be decreed entitled to an undivided one-half thereof.
[4] The relationship of the parties in what was done appears from what T. J. Billick is shown to have repeatedly declared and never to have denied. About 10 years before his death he said to Stingley, in response to an inquiry as to “how are you and the boys making it”:
Gerard testified that after the father's death Jefferson and Lewis did the farming; that it was pretty hard to tell which was boss; that in response to the question, “What are you going to do with Lew, your brother?” he answered that he promised Lew, if he would stay there and help him pay out, he would divide equally with him. ...
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