McPherson v. Swift
| Decision Date | 09 April 1908 |
| Citation | 116 N.W. 76,22 S.D. 165 |
| Parties | DONALD A. MCPHERSON Plaintiff and appellant, v. JOSEPH SWIFT et al., Defendant and respondent. |
| Court | South Dakota Supreme Court |
JOSEPH SWIFT et al., Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. Levi McGee, Judge Reversed Martin & Mason, Chambers Kellar, Jas. C. Stanley Attorneys for appellant. Edwin Van Cise, Frank J. Grant Attorneys for respondents. Opinion filed April 9, 1908
This is an action wherein the plaintiff demands that he be adjudged to be the owner of an undivided one-half interest in certain real property situate in Lawrence county; that his title thereto be quieted and confirmed; that an accounting be had; that he have judgment against defendant Swift for whatever sum shall be found due; that the property be partitioned; that defendant Coe be restrained from paying rents and profits to defendant Swift pending the litigation; and that he have such other and further relief as may be just and equitable. He alleges in his complaint that on May 14, 1888, defendant Swift and one James K. P. Miller entered into the following written contract:
He also alleges, in substance, that Miller died January 12, 1891, having property in Lawrence county; that William Selbie, of Deadwood, was appointed administrator with will annexed of the Miller estate by the county court of Lawrence county, May 23, 1892; that Selbie qualified and entered upon the discharge of his duties; that Miller’s estate was insolvent, owing debts to an amount exceeding $100,000; that it became necessary to sell the real property belonging to the estate, including the property in controversy, in order to pay debts owing by the estate; that on September 29, 1892, pursuant to an order of the county court, Selbie, as administrator, sold, assigned, and transferred to the plaintiff all the right, title, and interest of the Miller estate in and to the aforesaid contract, and in and to the premises therein described, and on January 11, 1893, by deed, duly acknowledged and delivered, transferred and conveyed to the plaintiff all the interest of such estate in and to said contract and the premises therein described; that such sale was confirmed by the county court December 29, 1892; that the consideration paid by the plaintiff for such transfer was the sum of $5,005; that Miller performed all the conditions of the aforesaid contract on his part; that the property was, in fact, purchased by Miller, Swift furnishing the money with which to pay for the same; that since Miller’s death defendant Coe, as agent of defendant Swift, has been collecting the rents, issues, and income of the property, and paying the same to Swift, less certain commissions; that Swift is not a resident of this state; that, when the property was purchased, title was taken in Swift’s name in accordance with the aforesaid contract for the joint interest and benefit of Miller and Swift; that the rents, issues, and income received by Swift have been more than sufficient to pay for all repairs, taxes, insurance, and other expenses properly chargeable to the premises, together with $18,500, the original purchase price, and interest thereon as provided in the contract, and that there is a balance due to the plaintiff; that on July 22, 1892, Selbie, as administrator, notified Swift in writing that the Miller estate claimed an interest in the property, and that he would care for it, and account for rents and profits agreeably to the terms of the contract; and that prior to the commencement of this action plaintiff demanded of Swift a conveyance of an undivided one-half interest in the property described in the contract remaining unsold and an accounting, with which demand Swift refused to comply.
The cause was tried without a jury on the issues presented by the complaint and defendant Swift’s separate answer; defendant Coe having been connected with the controversy only as the former’s agent. Swift’s answer is very voluminous, containing so many conclusions of law, arguments, and unnecessary repetitions as to render an accurate statement of the issues somewhat difficult. It will be construed as denying all the material allegations of the complaint, except those relating to the execution of the contract between Miller and Swift, the death of Miller, the insolvency of his estate, the notice and offer of the administrator, the plaintiff’s demand for a conveyance, and an accounting, and the collection by Swift of rents, issues, and income subsequent to Miller’s death; and as alleging the following affirmative defenses: (1) Estoppel by conduct; (2) bar by retraxit; (3) res judicata; (4) general statute of limitations; (5) special statute of limitations; and (6) laches. It contains numerous allegations concerning the fraudulent procurement of the contract between Miller and Swift, but, as no evidence was offered in support of such allegations, they require no further notice. It also alleges, in substance, that the property described in the complaint was bequeathed by Miller to Swift and two other persons in trust for the purposes mentioned in the former’s last will and testament.
It is contended the trial court’s decision does not cover all the issues of fact presented by the pleadings, to the manifest prejudice of the plaintiff; the execution of the contract between Miller and Swift is established. When it was executed, legal title to the realty was in Swift. “Thenceforward,” as found by the circuit court, “Miller collected the rents on this real property and accounted to Swift therefor, and for sundry improvements made on the property, and for a sale of some portion thereof, in accordance with the terms of the contract, until Miller’s death, January 12, 1891.” In other words, Miller performed his obligations under the contract while living. He was not merely an employee, whose employment was terminated by his death. The execution of the contract created a partnership or a joint venture, which was in essence and effect a partnership transaction, and, though the stock in trade was real estate, it was, as to the interests of the parties, to be regarded as personal property. Rev. Civ. Code, § 1723; Hyman v. Peters, 30 Ill. App. 134; Brady v. Kreuger,(1896); Betts v. Letcher,(1890). The parties were to share in the profits and losses, each was to pay one-half of the expenses, and each had authority to bind the other in matters relating to the property. The compensation for Miller’s services depended solely upon the ultimate success of the enterprise, The property of a partnership consists of all that is contributed to the common stock at the formation of the partnership, and of all that is subsequently acquired thereby. The interest of each member of a partnership extends to every portion of its property. The relations of partners are confidential. They are trustees for each other within the meaning of chapter 1 of the title on trusts. On the death of a partner the surviving partners succeed to all the partnership property, whether real or personal, in trust for the purposes of liquidation, even though the deceased was appointed by agreement sole liquidator; and the interest of the deceased in the ultimate distribution of the partnership assets passes to those who succeed to his other personal property. Rev, Civ. Code, §§ 1726, 1727, 1732, 1761. So, from the undisputed facts, it necessarily follows that at the time of his death Miller had an interest in the property which he could not have bequeathed to any one in...
To continue reading
Request your trial