Willet v. Brown

• Citation: 65 Mo. 138
• Parties: WILLET ET AL., PLAINTIFFS IN ERROR, v. BROWN.
• Decision Date: 30 April 1877
• Court: United States State Supreme Court of Missouri

65 Mo. 138

WILLET ET AL., PLAINTIFFS IN ERROR,

v.BROWN.

Supreme Court of Missouri.

April Term, 1877.

Error to Cass Circuit Court.--HON. F. P. WRIGHT, Judge.

A. Comingo for plaintiffs in error.

I. In order to exclude dower in real estate conveyed to copartners, by their respective names, it must have been acquired with partnership funds, strictly as partnership property, and must have been held exclusively for partnership uses; or, it must have been acquired by the partners under an agreement, or with an express understanding that it should be held and sold for the benefit of the partnership and as partnership property. Smith v. Jackson, 2 Edwards Chancery 28; Buchan v. Sumner, 2 Barb. Chancery 165, 200, 201; Delmonico v. Guillaume, 2 Sanf'd Chancery 366; Averill v. Loucks, 6 Barb. 19; Buckley v. Buckley, 11 ib. 43; Wooldridge v. Wilkins, 3 How. Missis. 360; Markham v. Merrett, 7 ib. 437; Wheatley v. Calhoun, 12 Leigh. 264.

II. The Court erred in the declaration of the law of the case, given of its own motion. There is no testimony in the case, proving or tending to prove, that the property described in the petition was purchased by the partners to be used and applied to partnership purposes, nor any showing or tending to show that it was treated by the partners as a part of their partnership stock. Furthermore the Court declares, of its own motion, that, “if the property was purchased with the partnership funds, that fact of itself created a trust which attached to it, in the hands of the partners, in favor of partnership creditors.” The facts disclosed by the record do not warrant this declaration, as to the law of the case. Smith v. Jackson, Markham v. Merrett and Wheatley v. Calhoun. ( Supra.) But even admitting that the real estate was held by Silas Price and Charles Keller, in such a manner as to render it subject to the payment of partnership debts, and, under suitable proceedings and adjudications, to exclude dower, it does not appear that plaintiff's dower is excluded. In order that it might be excluded, she should have been made a party to the proceedings for a sale of the real property to pay the partnership debts. Otherwise, her claim for dower is not affected by the sale. Pugh v. Currie, 5 Alabama 446; Collins v. Warren, 29 Mo. 236.

N. M. Givan and D. K. Hall for plaintiffs in error.

I. If partners carrying on a trade or business, purchase real estate, essential to the very prosecution of such trade or business, such as mill sites, store houses, &c. or if there is a contract or agreement express or implied between them, that the lands so held shall be converted into the stock of the partnership at its dissolution (neither of which appears in the case at bar), the better opinion seems to be that it will be changed into personalty and liable as such for the partnership debts. But if, on the other hand (as in the case at bar), the ownership by partners of such realty is in no way connected with the very business of their trade, or if it is only collateral to, and not growing out of their trade, the authorities are clear and conclusive that it retains its original character. Buckeridge v. Ingram, 2 Ves. jr. 652; Smith v. Smith, 5 Ves. 189; Ripley v. Waterworth, 7 Ves. 425; Phillips v. Phillips, 1 Mylne & Keene, 649; 7 Cond. Eng. ch. 208; Brown v. Brown, 3 M. & K., 443; 9 Eng. ch. 118; Randall v. Randall, 7 Simons 271; Coles v. Coles, 15 Johns. 159; McDermot v. Lawrence, 7 Serg. & Rawl. 438; Greene v. Greene, 1 Ohio 244; Sigourney v. Munn, 7 Conn. 11; Gow on Part. 2nd Ed. pages 49, 50, 51 and note on page 51.

It is insisted that the principle here contended for is sustained by reason, justice and equity as well as by the decisions of the courts. Messrs. Price & Keller were partners in the general mercantile business at the time the real estate in question was purchased. They were not in the business of buying and selling of real estate; that constituted no part of their partnership business. The real estate in question was not used as a store house, nor was it in any manner connected with their partnership business. It was bought by and conveyed to them as individuals in 1852. The partnership was not dissolved by the death of Price until 1859. It would have been perfectly competent and proper for the members of the firm to have withdrawn from the business of the firm any reasonable amount of money, and with it to have bought real estate for, and had it conveyed to each of them separately, and such real estate would not have been thought of as personal property. If so, why should real estate conveyed to them jointly as tenants in common, as individuals, having no connection with, or relation to their partnership business, be governed by a different rule?

II. The distinction between partnership and tenancy in common should not be ignored. The fact that the tenants in common of the legal title are co-partners does not, of itself, invest the realty with any of the characteristics of personalty. Partners may, like other persons, join in a purchase of realty independent of their partnership, intending to hold their interests severally. Whenever such an intention exists, the property, though paid for out of the moneys or effects of the firm, retains in equity, as well as at law, the character of real estate. Freeman on Co-ten. and Part., secs. 111, 112, 114; Hunt v. Benson, 2 Humph. 459; Dyer v. Clark, 5 Met. 562; Smith v. Smith, 5 Ves. 193; Coder v. Huling,27 Pa. St. 88; Collumb v. Read, 24 N. Y. 513. The deed to the individual partners, their heirs and assigns, and the testimony taken together clearly show there was no intention to impress upon this real estate the character of personalty. The mere fact that payment is made out of the partnership funds is not even prima facie proof of the conversion of real into personal estate. It must be shown in addition to this fact that the purchase was connected with the firm business, or was in pursuance of some agreement, that it should be held for the benefit of the concern. Freeman on Co-tenancy and Part. sec. 115; Smith v. Jackson, 2 Edw. Ch. 28; Cox v. McBurney, 2 Sandf. 561; Wooldridge v. Wilkins, 3 How. Miss. 360.

III. The Court found that Price and Keller held said real estate as tenants in common, and our statute expressly clares that “The widow shall have dower of real estate, although there may have been no actual possession by the husband in his lifetime, and although the same may have been held by him as joint tenant, or tenant in common, or co-parcener.” Wag. Stat., p. 542, sec. 23. This section became the law of this State since the decision by this Court of Carlisle's adm'rs v. Mulhurn, 19 Mo. 56, and Duhring v. Duhring, 20 Mo. 174, and is decisive of the case in favor of plaintiffs.

Wooldridge & Daniel for defendant in error.

1. The widow of a deceased partner is not entitled to dower in that part of the partnership lands which are necessary for the payment of partnership debts. Sumner v. Hampson, 8 Ohio 328; 1 Parsons on Contracts, 151, 5th Ed.; Duhring v. Duhring, 20 Mo. 174; Goodburn v. Stevens, 5 Gill 1; Richardson v. Wyatt, 2 Dessaus. 471; Wooldridge v. Wilkins, 3 How. Miss. 360; Burnside v. Merrick, 4 Met. 541; Dyer v. Clark, 5 Met. 562; Hale v. Plummer, 6 Ind. 121.

2. Real estate purchased with partnership funds is, so far as the partners and their creditors are concerned, treated in equity as personal property; and the widow of a partner has dower only in what remains after the payment of the partnership debts and the adjustment of the claims of the partners. 1 Parsons on Con., 149, 5th Ed.; Goodburn v. Stevens, 5 Gill 1; Buchan v. Sumner, 2 Barb. Ch. 165, 192, 207; Benkley v. Benkley, 11 Barb. 14; Piatt v. Oliver, 3 McLean 27; Rice v. Barnard, 20 Vt. 479; Overholt's Appeal,12 Penn. St. 222; Moderwell v. Mullison, 21 Id. 257; Buck v. Winn, 11 B. Mon. 322; Owens v. Collins, 23 Ala. 837; Boyers v. Elliott, 7 Humph. 204; Hoxie v. Carr, 1 Sumner 182, 4 Ohio St. 1; Story on Partnership, § 93; Carlisle's Adm'rs v. Mulhern, 19 Mo. 56; Duhring v. Duhring, 20 Mo. 174; King v. Wilcomb, 7 Barb. 263; Denning v. Colt, 3 Sandf. 284. It is immaterial that the property was conveyed to the partners, Silas Price and Charles Keller, eo nomine. The creditors of the firm had a right to look to it for payment of their just demands, and neither the form of conveyance, nor the fact of its being used or not used by the firm in the transaction of their partnership business could affect their rights. Wash. Real Prop., 3d Ed. 575, sec. 3; Menagh v. Whitwell, 52 N. Y. 146, S. C. 11 Amer. R. 683.

NORTON, J.

This is a suit instituted by plaintiff, Mary E. Willet, as the former wife of one Silas Price, for the assignment of dower in certain lots in the town of Harrisonville, in Cass county, and for the recovery of damages for the deforcement thereof. It is alleged that her former husband, Silas Price, was seized of an estate of inheritance in said lots, during their marriage, and that defendant, by virtue of a sale of the same, made after the death of said Price, by him, as the administrator of the partnership estate of S. Price & Co., conveyed said lots by administrator's deed, in February, 1861, to Alexander Feely, who afterwards conveyed the same to Barton Holderman, who afterwards conveyed to Alexander McLorky, who afterwards, in July, 1867, conveyed to Lititia Jones, who afterwards, in December, 1867, sold and conveyed the lots in question to the defendant, Robert A. Brown.

Defendant, in his answer, alleged that the lots in which dower is demanded by plaintiff were purchased by the firm of S. Price & Co., a partnership composed of Silas Price and Charles Keller, with partnership funds for the purposes of said partnership. That they were treated, held, owned and considered by said firm as partnership property, and that after the death of said Silas Price, they were sold as stated in the petition by defendant, as the administrator of the partnership estate of said S....