Peirce v. Halsell

• Decision Date: 25 February 1907
• Docket Number: 12,551
• Citation: 90 Miss. 171,43 So. 83
• Court: Mississippi Supreme Court
• Parties: EDWARD D. PEIRCE v. ROBERT E. HALSELL

43 So. 83

90 Miss. 171

EDWARD D. PEIRCE v. ROBERT E. HALSELL

No. 12,551

Supreme Court of Mississippi

February 25, 1907

FROM the chancery court of Jones county, HON. JAMES L. MCCASKILL Chancellor.

Halsell appellee, was complainant in the court below; Peirce appellant, was defendant there. From a decree in favor of complainant, defendant appealed to the supreme court.

The suit was for partition of land. The cause was heard on the merits and the court decreed a partition of the property save as to a segregated part which was ordered sold for division of the proceeds. The contention between the parties was in regard to their respective interests in the land. The opinion states the facts.

Reversed and remanded.

Mayes &amp Longstreet, for appellant.

The bill filed by Halsell, the appellee, alleged that Peirce, the appellant, owned only a two-sevenths interst in th property sought to be partitioned. Peirce's answer denied that his interest was limited to such a small proportion, and alleged that he was entitled to a full half interest therein, alleging further that he and Halsell had entered into a partnership for the purpose of purchasing the property from the various tenants in common who originally owned it, the plan being that Halsell was to purchase the property and subsequently he, appellant, was to pay one-half of the purchase price to Halsell. His answer further sets forth that after Halsell had thus acquired the property he refused to acquaint appellant with the various purchase prices paid by him, Halsell, for the various interests, and further refused to consider appellant as having any rights or claims other than the above mentioned two-sevenths undivided interest. Appellant's answer distinctly avers that he did not know what amount he was due to Halsell for his half of the purchase price, but whatever it was he was willing and had always been willing to pay the same, and had moreover offered repeatedly to do so. The evidence offered by appellant supported these averments of appellant's answer.

It will be seen from the decree of the lower court that the court's finding of facts was in favor of appellant. The decree practically states that there was a partnership; but it further alleged that, notwithstanding the partnership, Peirce was not entitled to his one-half interest in the land for the sole reason that he had not paid Halsell the money necessary to make up his half of the original purchase price. It is of this part of the decision that the appellant complains.

On the trial in the court below, the testimony of appellant as to a verbal agreement of partnership between him and appellee was objected to. The objection was on the ground that such an agreement could be proved only by writing. Evans v. Green, 23 Miss. 294.

Peirce, therefore, having a valid and binding contract, verbal though it was, of partnership with Halsell; and the title deeds, taken by Halsell in pursuance of that partnership agreement, having been taken in order to avoid the appearance of competition and consequent raising of the price asked for the land, Halsell became merely a trustee of the legal title of five-sevenths interest in the land for the benefit of the partnership; just as Peirce was in like manner a trustee of two-sevenths interest therein for the benefit of the partnership by reason of the two-sevenths interest purchased in his name. The court should have decreed that the land should be divided equally between the parties, and that Peirce should pay to Halsell, with interest, one-half of whatever amount of money Halsell had paid out in the acquisition of such land, in excess of such amount as Peirce had paid out; and should have provided further that the money was due on account stated from Peirce to Halsell, and the same should have been made a lien on Peirce's divided interest in Halsell's favor.

There was no necessity for payment of money by Peirce into court. Yet the chancellor, while recognizing the truth and justice of Peirce's claim that there was a partnership, declared in effect that Peirce had practically forfeited a certain proportion of his interest in the land, with the profit thereto attaching, simply because he had not paid or tendered to Halsell the full proportion of the purchase money.

Another reason why there was no necessity for Peirce to tender or to pay any money into court is apparent when the appellee's bill of complaint is examined. Both in bill and testimony appellee repudiated utterly the proposition that Peirce had any right whatever in the property save a bare two-sevenths interest, or that Peirce owed him anything on account of purchase price of the land. Appellee denied that any agreement existed between him and appellant, or that anything whatever was due him by appellant save a small proportion of an expense account. Thus denying and thus repudiating any liability on the part of Peirce, how could appellee claim that Peirce had forfeited any right which Peirce might have in the land by not liquidating the liability so denied? It is obvious, considering the temper displayed by Halsell and considering further the scheme sought to be worked by him, that it would have been useless for Peirce to tender him any money.

In conclusion we submit that the decree of...