Reid v. Keator

• Decision Date: 31 December 1934
• Docket Number: 6143
• Parties: J. W. REID, as Executor of the Estate of W. A. ATKIN, Deceased, Plaintiff and Respondent, v. R. I. KEATOR, Defendant and Appellant. J. W. REID, as Executor of the Estate of W. A. ATKIN, Deceased, Respondent, v. SPOKANE AND EASTERN TRUST COMPANY, a Corporation of the State of Washington, CORA D. REEDER, as Trustee of the CHAS. G. REEDER ESTATE, CORA D. REEDER and HOBART M. PERINGER, Defendants, and R. I. KEATOR, Defendant and Appellant
• Court: Idaho Supreme Court

39 P.2d 926

55 Idaho 172

J. W. REID, as Executor of the Estate of W. A. ATKIN, Deceased, Plaintiff and Respondent, v. R. I. KEATOR, Defendant and Appellant. J. W. REID, as Executor of the Estate of W. A. ATKIN, Deceased, Respondent, v. SPOKANE AND EASTERN TRUST COMPANY, a Corporation of the State of Washington, CORA D. REEDER, as Trustee of the CHAS. G. REEDER ESTATE, CORA D. REEDER and HOBART M. PERINGER, Defendants, and R. I. KEATOR, Defendant and Appellant

No. 6143

Supreme Court of Idaho

December 31, 1934

APPEAL AND ERROR-ABSENCE OF TRANSCRIPT OF EVIDENCE-FINDINGS-PRESUMPTION IN RE EVIDENCE-JOINT ADVENTURES-RELATION OF PARTIES-TRUSTS, CREATION OF.

1. Reviewing court must presume that evidence is sufficient to justify findings, in absence of transcript of evidence or bill of exceptions containing evidence.

2. In action to establish trust in lands to which title was held by defendant, findings that parties were engaged in joint enterprise were a denial of defendant's contention that some of property was his individually or that any of contracts entered into were made upon his credit only and no specific findings on such issues were necessary.

3. Parties failing to bring evidence before reviewing court could not complain of failure to make specific findings thereon, since court must presume that no evidence was introduced in support of allegations concerning which no findings were made.

4. Failure to make specific findings on certain issues held not error where no request was made therefor, since it was presumed that findings, if made, would have been against appellant.

5. Where one has acquired legal title to property to which another has better right, equity will convert him into trustee of true owner, and compel conveyance of legal title.

6. All implied trusts are classified with regard to nature of their origin as resulting trusts and constructive trusts, latter often being designated as trusts maleficio, or trusts ex delicto.

7. Parties to joint enterprise, like copartners, occupy fiduciary relations to each other.

8. Violation by one of joint adventurers of fiduciary relations constitutes fraud upon others, and, if any advantage is acquired by such violation, law raises constructive trust for protection of defrauded party.

9. Where one joint adventurer tortiously took in his own name title to lands purchased by both in equal shares constructive trust, and not resulting trust, arose in favor of other joint adventurer, though he advanced practically entire payments, so that title holder was trustee only of undivided half belonging to other joint adventurer, and not of entire property.

10. In suit to establish interest in property jointly purchased where joint adventurer holding title claimed entire interest court should have granted partition prayed for by both parties and impressed lien in favor of joint adventurer advancing entire price upon property partitioned to adventurer, with right to foreclose.

11. In suit to declare trust in and to partition property purchased in joint adventure, interest should be charged on advances by plaintiff only from date of demand for repayment, where it was agreed that no charges were to be made by any party for services performed.

APPEAL from the District Court of the Eighth Judicial District, for Boundary County. Hon. Miles S. Johnson, Judge.

Action to declare a trust in real property. Decree for plaintiff. Reversed in part and affirmed in part and remanded with instructions.

Reversed and remanded, with instructions. Petition for rehearing denied.

James F. Ailshie and Robert Ailshie, for Appellant.

According to plaintiff's own theory of the case and the findings drawn by his attorney there was no express trust. Any pretense at showing an express trust is at once met by the statute of frauds (sec. 16-505, I. C. A.), for the reason that it was not in writing and is equally refuted by the findings. Plaintiff is necessarily forced to rely on having established a resulting trust. (Statute of Frauds, sec. 16-505, I. C. A.); Pittock v. Pittock, 15 Idaho 426, 432, 98 P. 719; De Roboam v. Schmidtlin, 50 Ore. 388, 92 P. 1082; Bliss v. Bliss, 20 Idaho 467, 119 P. 451; McGuire v. Hansen, 48 Idaho 34, 279 P. 413; Bedal v. Johnson, 37 Idaho 359, 218 P. 641.)

Ezra R. Whitla, Emery Knudson and Kenneth K. Branson, for Respondent.

When the evidence has not been brought up the court will presume that the reason it was not brought up was because it was unfavorable to the appellant and the court will not examine the records to see if the facts are supported thereby. (Zion's Co-operative Mercantile Institution v. Armstrong, 6 Idaho 464, 56 P. 168; Brossard v. Morgan, 7 Idaho 215, 61 P. 1031.)

The authorities cited by appellant all sustain the respondent's contention to the effect that a resulting or constructive trust arises by operation of law when one furnishes money for the purchase of land and another acting for him takes the title to such land in his own name. Pittock v. Pittock, 15 Idaho 426, 98 P. 719, is direct in point. There this court said as follows: "A resulting trust may be established by parol evidence. A resulting trust arises by operation of law in favor of a person who advances the purchase money for land, though the title be taken in the name of another; or in favor of a person for whom it is advanced by way of a loan, the title being taken in the name of the lender; and such trust may be established by parol evidence."

It has always been our contention that Keator and Atkin were not partners, but that this was a joint venture. This relationship is very close to that of partnership, but is not that relationship. (33 C. J., p. 841.)

Tenants in common conducting a joint business are uniformly held to be joint venturers. (Lucy's Estate, 4 Misc. 349, 24 N.Y.S. 352, 54 N.Y.S. 255, 1 Powers, 117; James v. James, 151 Wis. 78, 137 N.W. 1094; Bowers v. Graves & Vinton Co., 8 S.D. 385, 66 N.W. 931.)

The relationship of joint venture does not have to be established by absolute agreement, but may be implied by the conduct of the parties and requires the utmost good faith between the parties. (Jackson v. Hooper, 76 N.J. Eq. 185, 74 A. 130.)

KOELSCH, D. J. Budge, C. J., and Givens and Holden, JJ., concur.

OPINION

KOELSCH, D. J.

The two above-entitled actions were by the trial court consolidated, tried as one action and determined by one judgment.

They were brought by the plaintiff, W. A. Atkin, against the appellant R. I. Keator for the purpose of establishing plaintiff's ownership of certain lands, and of certain leases on Indian lands, all situate in Boundary county, Idaho.

The plaintiff also asked that a trust be declared in his favor as to said leases, and as to any of said lands the title whereof is held by the said defendant or for which the contract of purchase runs in the defendant's name; that said lands be partitioned, that an accounting be had, and that plaintiff be decreed to have a lien for any amount found due him from the defendant, on lands that may be partitioned to defendant, and that, on nonpayment of such lien, the defendant be compelled to convey said property to plaintiff.

Plaintiff also asked for, and the trial court did appoint, a receiver of all of the property of the parties involved in these cases.

Issues were joined on nearly all of the material allegations of plaintiff's complaint, the consolidated case was tried by the court without a jury, findings of fact and conclusions of law were made, upon which findings and conclusions judgment was given for the plaintiff.

By this judgment the court decreed the plaintiff's ownership of all of said property and sustained his contention of a trust, and contingently ordered the appellant Keator to convey all of said property to the plaintiff.

The court also compelled an accounting and gave to the appellant Keator a fixed time within which to pay the amount found due from him in order to be restored to his undivided interest to said property, and reserved jurisdiction of the case to make partition of said property in the event of payment by appellant within the time fixed.

Of the defendants named in said complaints, the said Keator alone has appealed but has appealed upon the judgment-roll only; the plaintiff also has appealed from certain parts of the decree.

Since his appeal, the plaintiff, W. A. Atkin, has died, and his administrator has been substituted as respondent. It will, however, be convenient, and in the interest of clarity of statement herein to refer to the parties as plaintiff Atkin and appellant Keator.

There being no transcript of the evidence or bill of exceptions containing any of said evidence, this court is bound to presume that the evidence introduced upon the trial is sufficient to justify the findings. (Anderson v. Walker Co., 38 Idaho 751, 225 P. 144; Hazard v. Cole, 1 Idaho 276.)

The findings are voluminous, involved and somewhat ambiguous, but the facts necessary to a decision upon these appeals, and which may be fairly deduced from such findings, are as follows:

In the year 1929, appellant, Keator, interested one Hobart M Peringer and the decedent, W. A. Atkin, in a project to buy and reclaim overflowed swamp-lands in Boundary county, some of which lands were owned by or stood in the name of the defendant Spokane and Eastern Trust Co. and Cora D. Reeder as trustees of the estate of Chas. G. Reeder, deceased, and said Cora D. Reeder, personally. At that time said Atkin, a second cousin of Keator's, was about 71 years of age, and resided at Republic, Washington. The said Keator, an attorney at law, resided in and practiced his profession at Pendleton, Oregon, but during the negotiations for the purchase of said lands moved to and took up...