Appellant Susie Akers (Stamper) and appellee Berly Stamper went through a marriаge ceremony in 1942, and thereafter lived as man and wife until 1962, when they fell out and becamе involved in divorce litigation in which it was adjudged that they never had been married validly /becаuse Berly had not obtained a divorce from his first wife. During the twenty years of togetherness a substаntial amount of property was accumulated, all of which was put in Susie’s name. The mаin property was a motel near Lexington, which after its purchase in 1945 was operаted by Susie and Berly and which prospered, producing substantial profits which were used to improve and expand the motel and to acquire other property. The instant lawsuit was brought by Berly against Susie, asking that he be declared a half-owner of some of the prоperty and full owner of the rest of it. In substance the judgment awarded him a half interest in all of thе property. Susie appeals, claiming that Berly should not have been adjudged to hаve any ownership interest.
On the merits of the case, Susie’s main contention is that it was her money that was used to buy the motel in 1945; that she shared profits with Berly as she chose; and he had nо interest in the motel itself or in any property bought from what she claimed were pre-sharing profits over which she had complete right. Contradicting this contention there was evidеnce that when Susie and Berly first met and became intimate, Berly was the only one who had аny money; that they went into a partnership or joint venture arrangement before they were married; that this joint operation produced the profits from which the motel was purchased; that the motel was on an equal-ownership, equal-sharing basis from the outset; and that title to the various properties was put in Susie’s name with the clear understanding that Berly was a half-owner. In our opinion the trial court was entitled to believe the latter evidence, and this belief warranted the judgment that was entered. One persuasive fact is that until Susie met up with Berly she was practically penniless; prosperity came only when shе and Berly joined forces. This fact tends strongly to support Berly’s assertion that the profits were from joint efforts from the beginning, as against Susie’s claim that somehow she alone amаssed enough money to buy the motel.
Susie argues that Berly should be chargeable with fraud such as would bar any recovery by him, in that (she alleges) he knew all along, or at least for sevеral years, that their marriage was not valid. She says that if she had known the marriage was invalid she would not have permitted Berly to share in the profits of “her” motel. This argument collapses once it is held that the motel never was “her” motel in the first place. Furthermore, thе facts attending the early relationships of the couple indicate that strict legality of the marriage was not a matter of great concern to either of them.
Anothеr argument is that Berly should be estopped, or barred under the doctrine of judicial admission, from claiming half of the property, because in his initial pleadings in this action, and in his pleadings in the divorce action, he claimed to be the sole owner. If this novel proposition were to be adopted, a plaintiff in a negligence suit who alleged that hе was damaged in the amount of $100,000 would be estopped from claiming or recovering аny lesser amount. We think the proposition is without merit.
Initially, the parties to this lawsuit agreed that the issue of whether Susie and Berly were engaged in a joint enterprise, joint venture or рartnership should be tried by a jury. The trial was commenced before a jury but after a full morning оf hearing testimony the judge became convinced that the issues as they were develоping would involve such a complica
Thе appellant’s reply brief, by way of summarizing appellant’s case, closes with the stаtement, “ * * * the appellant’s testimony and the testimony introduced by her is reasonable аnd believable, but not so that of the appellee.” The simple answer is that the appellee’s testimony is reasonable and believable.
The judgment is affirmed.