Young v. Thrasher
| Decision Date | 25 March 1893 |
| Citation | 21 S.W. 1104,115 Mo. 222 |
| Parties | Young v. Thrasher, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.
Reversed and remanded.
White & McCammon and C. W. Thrasher for appellant.
(1) The land in which respondent seeks to recover dower, having been held and treated by appellant and the husband of respondent as partnership property, of the co-partnership of Thrasher & Young, and, in the final settlement of said co-partnership said land having been taken by appellant in payment of a balance due him from said co-partnership, respondent is not entitled to dower therein. Duhring v. Duhring, 20 Mo. 174; Mathews v. Hunter, 67 Mo. 293; Julian v. Wrightsman, 73 Mo. 569; Easton v Courtwright, 84 Mo. 27; Priest v. Chouteau, 85 Mo. 398, 407; Cheesman v. Sturges, 6 Bosw. 520; 5 American & English Encyclopedia of Law, 898, and notes; 1 Scribner on Dower [2 Ed.] 564, 566; King v Remington, 29 N.W. 352, and note; Clay v. Freeman, 6 S.Ct. 964; Dupay v. Leavensworth, 17 Cal. 262. To convey partnership property the wives of the partners need not join in the deed, and any mode of sale which passes the title for the purpose of settlement between partners and payment of debts bars dower. Simpson v. Leech, 86 Ill. 286. And it is immaterial in equity who holds the legal title to partnership property. Mathews v. Hunter, 67 Mo. 293. To make real estate partnership property an express agreement to that effect between the partners is not necessary; if it was purchased with partnership funds, or funds that have been put into the partnership by the partners, and has been treated and used as partnership property by the partners, it is sufficient. Willet v. Brown, 65 Mo. 138; Duhring v. Duhring, 20 Mo. 174. (2) To entitle a widow to dower in an equitable estate of her husband under section 4513, Revised Statutes, 1889, the equity of her husband must be full and complete, such as would constitute a resulting trust in his favor, and without any further acts on his part entitle him to a decree vesting in him the legal title. And even if the land in which respondent seeks to recover dower was not partnership property of the co-partnership of Thrasher & Young, under the facts disclosed by the record as to how said land was paid for and held, respondent's husband did not at any time have such an interest in said land as to entitle him to a decree vesting in him the legal title thereto, as against appellant; and respondent as his widow, having no greater interest than her husband under whom she claims, is not entitled to dower therein. Worsham v. Callison, 49 Mo. 206; Duke v. Brandt, 51 Mo. 221; Davis v. Greene, 102 Mo. 170; Nicholl v. Todd, 70 Ill. 295; Pugh v. Bell, 2 Mon. [Ky.] 125; 5 American & English Encyclopedia of Law, 896, and notes; 1 Washburn on Real Property [5 Ed.] pp. 233, 234, sec. 13, and authorities there cited. (3) The interest of the husband of respondent in the land, on which she seeks to recover dower, having been at most only an equitable interest, which he alienated in his lifetime, respondent is not entitled to dower therein. Duke v. Brandt, 51 Mo. 225; Morse v. Thorsell, 78 Ill. 600; Hamilton v. Smith, 6 J. J. Marsh. 582; Lewis v. Moorman, 7 Porter, 522; Butler v. Holtzman, 55 Ind. 125; Junk v. Cannon, 34 Pa. 286; Barnes v. Gay, 7 Iowa, 26; Gully v. Ray, 18 B. Mon. [Ky.] 107; Wheatley v. Calhoun, 12 Leigh. (Va.) 264; 5 American & English Encyclopedia of Law, 896-897; 1 Scribner on Dower [2 Ed.] 442; Tiedeman on Real Property, sec. 126. The general rule is that a widow can only be endowed in equitable estates of which the husband dies seized; and that an alienation of such an estate by the husband during his lifetime bars dower. (4) The court below erred in admitting the testimony offered by respondent and objected to by appellant; and in excluding the testimony offered by appellant; and in giving instructions asked by respondent, and refusing instructions asked by appellant; and in giving instructions of its own motion on the trial assessing damages and yearly value of dower of respondent. Thomas v. Mallinkrodt, 43 Mo. 468; O'Flaherty v. Sutton, 49 Mo. 583; Griffith v. Regan, 79 Mo. 73. (5) The court below erred in overruling appellant's motions for new trial and in arrest of judgment. (6) The judgment of the court below is erroneous in ordering the yearly allowance to respondent in lieu of dower for the first year, to be paid on the same day said judgment was rendered, to-wit, April 7, 1890, and also in rendering judgment for six per cent. interest on each and every future yearly allowance to respondent in lieu of dower, from the date of said judgment, April 7, 1890, during the natural life of respondent. Revised Statutes, 1889, sec. 4544. This judgment in not conforming to the provisions of the statute, under which it was rendered, by its terms, takes away rights from appellant not authorized by law, and for this reason is erroneous, and should be reversed. Jones v. Hart, 60 Mo. 351.
Haseltine Bros. for respondent.
(1) Dower in Missouri is a clear legal right, and is the provision made by law for the widow when she most needs assistance. Hall v. Smith, 103 Mo. 289; Revised Statutes, secs. 4513, 4525, 4535. And in Missouri there is dower in equitable estates. Davis v. Evans, 102 Mo. 164. (2) To make land partnership property it must be purchased with partnership funds and for partnership purposes, and be used in partnership business, facts which are not pleaded or proven in this case. 1 Lindley on Partnership [2 Am. Ed. Ewell] bottom p. 753, top star p. 332, and cases cited; Price v. Hicks, 14 Fla. 565; Russell v. Miller, 26 Mich. 1. (3) And the appearance of the lot with the profits and expenses upon the partnership books does not make it partnership property. Grabbs' Appeal, 66 Pa. St. 117. (4) Real estate does not become partnership property because owned by members of the firm doing partnership business upon it. Ware v. Owens, 42 Ala. 212; Pecot v. Armelin, 21 La. Ann. 667. (5) Conveying land to partners, which may afterwards be used for partnership purposes, does not make it partnership property. Griffie v. Maxey, 58 Tex. 210. There is dower in land sold by partners to third persons. Bowman v. Bailey, 20 S.C. 550.
This suit is by plaintiff as widow of Henry C. Young, deceased, for the assignment of dower in the undivided one half of the north half of lot 24, in block 6, in the original town of Springfield, Greene county, and for damages for the deforcement thereof.
The petition charged that Henry C. Young, the husband of plaintiff, and defendant C. W. Thrasher on the twenty-first day of August, 1879, purchased of James C. Fargo the said north one half of lot 24, block 6, each paying one half the purchase money thereof. That the title deed to said lot was taken in the name of defendant for the purpose of secretly and fraudulently depriving plaintiff of her dower in the half interest of her husband therein. That afterwards in August, 1883, defendant bought from plaintiff's said husband his half interest in said property, paying him therefor $ 2,500. That her said husband died in February, 1886, and that she had then never relinquished her dower in said lot.
The petition contained a charge that subsequent to the death of her husband plaintiff had been wrongfully induced by defendant to execute to him a deed of release to said land and she asked that the same be set aside, that dower be assigned, and damages be awarded her.
Defendant, by amended answer, waived all claim under the deed of relinquishment from plaintiff and consented that the same might be set aside. To the other allegations of the petition the answer was a general denial.
The evidence on the trial showed that defendant Thrasher and Henry C. Young, the husband of plaintiff, were partners engaged in the practice of law in Springfield from 1876 to some year or two prior to August, 1883, at which date a final settlement was made.
On the fourth day of December, 1876, the lot in question was conveyed by James C. Fargo to the said Young for the purpose of making a sale and conveyance of the same. On July 1, 1879, he sold at public sale and defendant bought the lot subject to the approval of the owner. The sale was not approved and consummated until August 2, 1879. The purchase price was $ 1,750. Between the date of the sale and the final approval by the owner an agreement was entered into between Thrasher and Young, that the latter assist in raising the money to pay for the lot. They agreed with one Holland to take a third interest at $ 800, which amount was paid. The title was made to defendant. They borrowed $ 1,000, for which they gave their note, signed by each individually, and defendant gave a deed of trust on two thirds of the lot to secure the payment. This $ 1,800 paid for the lot and the balance went "into partnership matters." In March, 1880, Holland declining to take the land, his third was sold to Milner, to whom defendant made a deed dated March 30, 1880.
On March 30th, defendant borrowed $ 2,000 on his own note and deed of trust upon the property and paid off the other notes, and received credit from the partnership.
It was not shown definitely when the dissolution of the partnership occurred. A final settlement dated August 3, 1883, was read in evidence. But few items of partnership business appeared on this settlement subsequent to 1881. A settlement of private accounts between them was also put in evidence; the items of this account commenced about the first of the year 1882. Young left the state about the first of the year 1882, and the firm did no new business after that.
The settlement of the partnership affairs showed a balance due from Young...
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