Magee v. Magee

• Decision Date: 30 June 1919
• Citation: 233 Mass. 341,123 N.E. 673
• Parties: MAGEE v. MAGEE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 341

123 N.E. 673

MAGEE

v.MAGEE et al.

Supreme Judicial Court of Massachusetts, Essex.

June 30, 1919.

Case Reserved from Supreme Judicial Court.

Suit by John Magee against Helena Buhlert Magee and others. On reservation by a single justice of the Supreme Judicial Court. Decree ordered for plaintiff.

The bill was to establish in plaintiff's favor a resulting trust in land, and to require defendants to execute and deliver a conveyance of a one-third interest in such land.

Dunbar, Nutter & McClennen, of Boston (George R. Nutter and Hugh W. Babb, both of Boston, of counsel), for plaintiff.

John M. Maguire, of Boston (Hale & Dorr, of Boston, of counsel), for defendants.

CARROLL, J.

In 1906 the plaintiff was employed in the purchase and sale of lands in Montana by the Bitter Root District Irrigation Company, hereinafter called the District Company. In 1907 Julian Dodge and the plaintiff's brother, George Magee, made a contract with the District Company for the purchase of 330 acres of land and part payment of $400 was made by George Magee. At or before the time the contract was made, it was agreed that the plaintiff should share equally in the enterprise with his brother and Dodge. In November, 1907, the District Company went into receivership and later was reorganized. The new company was called the Bitter Root Valley Irrigation Company, hereinafter referred to as the Valley Company. After the receiver was appointed the plaintiff opened an office in Chicago for the sale of western lands, he was not employed by the Valley Company. This company accepted the contract of the District Company and was ready to convey to George Magee and Dodge 250 of the 330 acres. In July, 1908, payment was called for under the terms of the contract. George Magee and Dodge then interested one Thatcher in the purchase of a large tract of land in the Bitter Root Valley and at their request the plaintiff accompanied Thatcher to Montana, at his own expense, and the sale of 1,000 acres of land was arranged. The 250 acres comprised in the Dodge-Magee contract was included in this larger tract.

Dodge and George Magee made a contract with the Valley Company, by which they were to assign their right to purchase the 250 acres to Thatcher and his associates and were to receive from the Valley Company $12,500 for this tract at the price of $50 an acre; this being the amount by which the Valley Company's price to Thatcher-$150 an acre-exceeded the price fixed in the Magee-Dodge contract. The sum of $12,500 was to be paid one-third in cash and two-thirds in the securties of the Thatcher Company. The money was paid and divided equally between George Magee, Dodge and the plaintiff; the plaintiff at the same time paying his brother one-third of the $400 paid by him. Each party assumed his own expenses in promoting the Thatcher plan.

After some correspondence the Valley Company agreed to convey the remaining 80 acres claimed by Magee and Dodge under the original agreement with the District Company, in consideration of the transfer to it of the securities of the Thatcher Company. By deed of January 30, 1909, the Valley Company conveyed to George Magee and Julian Dodge 80 acres of land in consideration of the release of the securities. The title was taken in the name of Dodge and George Magee at the request of the plaintiff, with the understanding that one-third of the property should be conveyed to him on his demand. The plaintiff's bill is brought to establish a trust in his favor of an undivided one-third interest in this 80-acre tract, and to require the defendants to execute and deliver to him a conveyance of this one-third share.

Dodge and George Magee died intestate. John T. Dodge and Mehitable P. Dodge are the father and mother of Julian Dodge. Helena B. Magee is the widow of George Magee. It is agreed that, aside from the question of partnership, the real estate of Dodge belongs to his father and mother and the real estate of George Magee belongs to his widow.

When the negotiations for the transfer of the 80 acres were pending, the plaintiff wrote to Dodge saying to arrange it ‘in your name and George's name without appearing in it myself,’ and that, when the business was closed, he was to secure his one-third portion. He also wrote his brother, ‘I wish to keep out of the transaction,’ ‘and after it is all closed, I will have another deed made out by which you and Julian deed back to me an undivided third interest.’

The plaintiff with his brother and Dodge were equal owners of the notes of the Thatcher Company, which notes constituted two-thirds of the profits of the enterprise in which they were engaged. As the plaintiff owned a one-third interest in these securities, he furnished a definite part of the consideration for the conveyance of the land to George Magee and Dodge. From these facts a resulting trust arises in the plaintiff's favor of a third interest in the 80-acre tract against the grantees named in the deed. Davis v. Downer, 210 Mass. 573, 575, 97 N. E. 90;Howe v. Howe, 199 Mass. 598, 600, 85 N. E. 945,127 Am. St. Rep. 516. See Pollock v. Pollock, 223 Mass. 382, 111 N. E. 963. All the defendants are before the court and it has jurisdiction to enforce the trust. Clark v. Seagraves, 186 Mass. 430, 438, 439, 71 N. E. 813, and cases cited.

The defendants contend that the three associates were between themselves, partners. There was not sufficient evidence to support this contention. They were equally to share the losses and equally to participate in the profits, but they did not agree nor intend to become partners. By the agreement of the parties they were to become owners of a tract of real estate and hold the title as tenants in common. The agreement related to a single transaction-to buy a particular piece of land-and the correspondence shows that Dodge and George Magee were not to share in the plaintiff's commissions and whatever their relations may have been to third parties, as between themselves they were not partners. Wheelock v. Zevitas, 229 Mass. 167, 118 N. E. 279;Williams v. Knibbs, 213 Mass. 534, 100 N. E....