Shinn v. Shinn
| Decision Date | 28 February 1928 |
| Docket Number | 5952. |
| Citation | 142 S.E. 63,105 W.Va. 246 |
| Parties | SHINN v. SHINN. |
| Court | West Virginia Supreme Court |
Submitted February 21, 1928.
Syllabus by the Court.
Whether a decree was entered by consent of the parties is determined from the face of the record.
It is error to decree partition of partnership lands in a suit for dissolution and settlement of the partnership before the firm's debts have been ascertained and a proper accounting had between the partners.
Appeal from Circuit Court, Jackson County.
Suit by J. A. Shinn against N. U. G. Shinn for partition. From a decree of partition, and referring the cause to a master for an accounting, defendant appeals. Decree of partition and part of decree of reference reversed, and cause remanded.
T. J Sayre and K. K. Hyre, both of Ripley, for appellant.
Walter F. Boggess and Lewis H. Miller, both of Ripley, for appellee.
A bill was filed in this cause praying for a partition of some 900 acres of land alleged to be held by plaintiff and defendant as tenants in common. The defendant, a brother of plaintiff filed an answer in the nature of a cross-bill denying that the parties were tenants in common or joint owners thereof but alleging that the said real estate was owned by them as partners, and that the same constituted a part of the partnership assets under their partnership agreement; that the parties had in 1886 entered into a partnership for buying and selling lands, of farming said lands, buying and selling cattle and other stock and property, and for carrying on any other business in which either one or the other of the partners might engage, except that it was agreed that, by and with the consent of the other, either partner might engage in individual transactions; that, pursuant thereto, they bought lands, farmed, leased their lands for oil and gas, and collected rentals, engaged in business bought and sold cattle, bought corporation stock, kept a partnership bank account, and traded as such during the life of the said partnership; that differences have arisen between the plaintiff and defendant so that the said partnership business cannot longer be carried on successfully; that on a settlement the plaintiff will owe defendant $20,000 or more. The cross-bill ends with a prayer that the cause be referred to a commissioner to settle the partnership accounts, and that the defendant may have a decree and lien against a sufficient amount of the property of the partnership to secure the payment to the defendant of the amount found due him; that the partnership be dissolved and terminated, and that there may be a division and partition of the real estate so held by them as partners; and for general relief.
The plaintiff, in answering the cross-bill, admits the partnership, and that the partners were to have an equal interest in the assets of the firm, and share equally in the losses and profits, but denies that there was an agreement that either one of the parties might engage in individual transactions and have and keep all the money and profits derived therefrom. He admits that there has never been a settlement of the partnership accounts, and that differences have arisen over the division of the land; that all the real estate set out in the bill for partition is the joint property of the plaintiff and defendant; and that it constitutes, and is partnership property, and is first liable for the partnership debts, the exact amount not yet having been definitely ascertained. He denies that the partnership or himself individually is liable to defendant upon a settlement of anything whatsoever, but is willing that a complete settlement of the partnership affairs may be made herein, and that a dissolution and determination of the partnership may be brought about and decreed by the court, so that each of the parties may have and receive as his own such part of the personal property as he is entitled to, and that a division and partition of said real estate may be made between the parties, and allotted to each of the parties in kind as their respective interests may appear.
Demurrers were interposed to the cross-bill and the answer thereto, and overruled by the court. No proof was taken by either party. At the April term, 1926, the cause was brought on to be heard upon all the pleadings therein filed, whereupon the court entered a decree adjudging the parties to be "tenants in common equally and jointly" in the tracts of land mentioned and described in plaintiff's bill for partition, and appointed commissioners to divide and partition said land and allot the same in kind to the parties to the suit, assigning one-half in value to the plaintiff and one-half to the defendant, and directing a report of their action to be returned to the court. The decree further recited that it appeared to the court that the cause should be referred to a commissioner in chancery for the purpose of taking and stating an account between the parties, determining: (1) the assets belonging to the partnership; (2) their nature, and where located; (3) whether there are any debts owing by the firm, the amount thereof, and to whom due; (4) what proportionate share of the assets each party has received; and (5) whether either party is indebted to the other for any sum by reason of having received more than his share of the profits of the business of the partnership, and for a complete settlement of the partnership accounts.
On the 24th day of April, the commissioners executed the order of reference. Upon the incoming of this report the defendant filed exceptions thereto, and the court decided that two additional commissioners should be appointed, who, with the three prior ones, should again go upon the lands and partition and divide the same between the parties. The commissioners, as augmented in number, on August 11, 1926 went upon the land, and adopted the report of the first set of commissioners as their own,...
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