McEwen v. McEwen

• Decision Date: 02 March 1955
• Citation: 203 Or. 460,280 P.2d 402
• Parties: William M. McEWEN and Eleanor McEwen, his wife, Plaintiffs-Respondents, v. James M. McEWEN and Jamima McEwen, his wife, and Walter T. McEwen, Appellants, James L. Turnbull, executor of estate of Thomas Turnbull, deceased, Defendant-Respondent.
• Court: Oregon Supreme Court

Page 402

280 P.2d 402

203 Or. 460

William M. McEWEN and Eleanor McEwen, his wife, Plaintiffs-Respondents, v. James M. McEWEN and Jamima McEwen, his wife, and Walter T McEwen, Appellants James L. Turnbull, executor of estate of Thomas Turnbull deceased, Defendant-Respondent.

Supreme Court of Oregon.

Argued Oct. 25, 1954.

Decided March 2, 1955.

P. J. Gallagher, Ontario, argued the cause for appellants. On the briefs were Gallagher & Gallagher, Ontario.

Harold Banta, Baker, argued the cause for plaintiffs-respondents. On the briefs were Lytle, Kilpatrick & Schroeder, Vale, and Hallock, Banta, Silven & Horton, Baker.

E. Otis Smith, Ontario, argued the cause and filed a brief for defendant-respondent.

Before LATOURETTE, ^* C. J., and WARNER, ^** LUSK, BRAND, TOOZE and PERRY, JJ.

PER CURIAM.

This is a proceeding for a declaratory judgment to determine the existence and extent of an alleged partnership, for a dissolution of the partnership and an accounting, and for other equitable relief, brought by William M. McEwen and Eleanor McEwen, his wife, as plaintiffs, against James M. McEwen and Jamima McEwen, his wife, Walter T. McEwen, and James L. Turnbull, as executor of the estate of Thomas Turnbull, deceased, as defendants. The trial court entered an interlocutory decree in favor of plaintiffs and defendant James L. Turnbull, as executor of the estate of Thomas Turnbull, deceased. Defendants James M. McEwen and Jamima McEwen, his wife, and Walter T. McEwen appeal.

Plaintiff William M. McEwen and defendant James M. McEwen are brothers, and their respective wives are sisters and nieces of Thomas Turnbull, deceased. Walter T. McEwen is the son of James M. and Jamima McEwen.

In the year 1918 William M. McEwen and his brother James M. McEwen entered into a partnership involving land and livestock. Their farming and livestock operations were conducted under this partnership arrangement until the early days of September, 1939, at which time the sheep and the cash were divided equally between the partners but there was no settlement or adjustment of the cattle, horses and land transactions.

In the meantime, and while these brothers were operating as partners, Thomas Turnbull on February 19, 1935, contracted to sell them approximately 13,640 acres of land, including a 320-acre tract known as the Swamp Creek ranch.

On October 25, 1939, Thomas Turnbull conveyed the 320-acre Swamp Creek ranch to the defendant Walter T. McEwen. This conveyance was without consideration, and in truth in trust for certain purposes unnecessary to detail herein. The contract between Thomas Turnbull and the McEwen brothers was in full force and effect; in fact, it was in full force and effect at the time of the hearing of this suit.

In their complaint in this suit, plaintiffs prayed for a decree setting aside the aforementioned conveyance to defendant Walter T. McEwen and for an accounting to the partnership for the rents and profits thereof while said Walter T. McEwen was in possession of the same.

A trial was had upon the issues made by the pleadings of the respective parties. The transcript of the evidence and proceedings upon the trial consist of 1,440 typewritten pages, together with a large number of exhibits. On August 19, 1953, the trial court entered a 'Judgment and Decree establishing rights, status and legal relations,' as follows:

'I. That since October 25th, 1939, when the defendant Walter T. McEwen received from Thomas Turnbull, a deed covering the West half of the northeast quarter, the sourth half of the northwest quarter and the southwest quarter of Sec. 34, Twp. 25 South, Range 37, East, W. M. in Malheur County, Oregon, he has been occupying the same under a dry trust and has no beneficial or equitable interest therein or thereto. That said land constitutes the property of the Thomas Turnbull estate and is subject to all of the terms and provisions of the contract of February 1935, wherein plaintiff William M. McEwen and defendant James McEwen agreed to purchase from Thomas Turnbull certain land therein described, for the consideration therein set forth; that although certain delinquencies in the installment payments of the purchase price of said land under said contract have occurred, no notice of forfeiture or default has even been communicated to the said William M. McEwen or the said James M. McEwen; that said contract is still outstanding in full force and effect; that certain payments have been made thereon by the said James M. McEwen, Jamima McEwen, William M. McEwen and Eleanor McEwen, all of which should be appropriately credited thereon, and that, pursuant to Section 6-608, O.C.L.A. the said James L. Turnbull as executor of the estate of Thomas Turnbull, deceased, may file an appropriate petition requesting such relief as the circumstances may justify, according to the said James M. McEwen and William M. McEwen the right to pay within a reasonable time to be fixed by the court, the balance due on said contract including principal and interest, and to receive from the said Turnbull estate a warranty deed and title abstract to the land covered thereby, including said tract of 320 acres last hereinabove referred to in accordance with the terms and provisions of said contract or, in default of so doing, to forfeit all of their rights thereunder.

'II. That the said Walter T. McEwen shall forthwith account to plaintiffs and to the said defendants James McEwen and Jamima McEwen for the reasonable fair rental value of said 320 acres of land from the 25th day of October, 1939, to the date, and that he, the said Walter T. McEwen shall forthwith vacate, surrender and deliver over possession of said 320 acres of land to the said Thomas Turnbull estate, but subject to the rights of the said William M. McEwen and the said James M. McEwen under said purchase contract of February, 1935, with the said Thomas Turnbull.

'III. That the National Forest sheep grazing allotment for 3100 head of sheep which the defendant James M. McEwen waivered and surrendered to Ralph Chambers on the 15th day of September, 1943, constituted partnership property of the said James M. McEwen and the said William M. McEwen each of whom at said time owned an undivided one-half interest therein; that at the time when said allotment was so waived and transferred it possessed a reasonable fair value of not less than $12,400.00 and that the said defendant James M. McEwen is indebted to the said William M. McEwen in the sum of one-half of said amount or $6,200.00 with interest thereon at the rate of 6 per cent per annum from the 15th day of September, 1943, which indebtedness shall be duly considered in connection with the accounting hereinafter referred to.

'IV. That all of the lands described in paragraph VI of plaintiffs' complaint are owned by the estate of Thomas Turnbull deceased, and are subject to the aforesaid land purchase contract of February, 1935, hereinabove referred to; that all of the lands described in Paragraph IV of said complaint, regardless of the manner in which the record ownership thereof now stands, constitute the property of, and are owned by, plaintiffs William M. McEwen and Eleanor McEwen on the one hand, and defendants James M. McEwen and Jamima McEwen on the other hand, as tenants in common, each of said parties owning an undivided one-fourth interest therein; save and except that portion thereof known as the Visher ranch and described as the southeast quarter of the southwest quarter, the west half of the southwest quarter of Sec. 29, the east half of the southeast quarter of Section 30, the northeast quarter of the northeast quarter of Sec. 31, the north half of the north half, the southeast quarter of the northwest quarter, and the southwest quarter of the northeast quarter of Sec. 32, and the southwest quarter of the northeast quarter, the south half of the northwest quarter and the northeast quarter of the southwest quarter of Section 33, all in Twp. 24, South, Range 37, East, W.M., which land constitutes the sole and exclusive property of defendant James M. McEwen and Jamima McEwen, and save and except the northwest quarter of the northeast quarter, the south half of the northeast quarter, the northwest quarter and the south half of Sec. 4, Twp. 26, S.R. 37, East, W.M., which land constitutes the sole and exclusive property of the plaintiffs William M. McEwen and Eleanor McEwen. That during the periods involved in this cause, plaintiffs and defendants James M. McEwen, and Jamima McEwen and Walter T. McEwen have utilized said lands so jointly owned in substantially equal proportions and that, with exception of the accounting to be made by the said Walter T. McEwen for his use and occupancy of said 320 acres of lands hereinabove referred to, none of the parties is required to account for the use and occupancy of said lands.

'V. That regardless of the manner in which the record now discloses ownership of the livestock brands (symbol) and T, said brands constitute the property of the plaintiff William M. McEwen and the defendant James M. McEwen each of said parties owning an undivided one-half interest therein.

'VI. That heretofore and during the year 1939, plaintiff William M. McEwen and defendant James M. McEwen undertook to accomplish a partial dissolution of their partnership ventures and completed the same only to the extent of dividing equally between themselves at said time, all sheep and cash on hand, but that said partnership, particularly with respect to lands, cattle, horses and brands was not dissolved, settled or wound up and that said partnership is still in existence for all purposes and particularly for the purpose of the accounting next hereinafter referred to.

'VII. That since the fall of the year 1918 plaintiff William M. McEwen and defendant James M. McEwen have been equal partners...