96 Mo. 591 | Mo. | 1888
In August, 1881, Joseph, Solomon and Louis P. Yail bought the land in controversy, two and one-fourth acres, now known as Logan’s First Addition to the City.of Kansas. The deed was made to them individually and not as partners. In June, 1882, Charles F. Link was approached by Louis P. Yail, and asked to lend him some money, Yail indicating to him the location of the property aforesaid, and saying that he owned it and wanted the money to pay his license, as he was about to engage in the saloon business, and did not wish to mortgage the property for so small a sum.
On the eighth day of September, 1882, nineteen days after the transcript of the justice was filed, creating a lien on the land, Louis P. Vail, on his own behalf and as attorney in fact of his brothers, for an expressed consideration of two thousand dollars, conveyed by general warranty deed, the land to John Vail and Leander Vail, his uncle and nephew, and the deed was recorded on the same day. On September 21, 1882, thirteen days after the execution of that deed, John Vail and Leander Vail executed a.warranty deed for the premises to the defendant, Wm. G. Logan. This deed expresses a consideration of twenty-four hundred dollars, was acknowledged in Pike county, Illinois, and placed on record October 4, 1882, since which time, Logan, and the other defendants claiming under him, have been in possession of the premises in dispute.
In September, 1883, the plaintiff brought ejectment for the one-third interest in the land aforesaid. In
“Louis P. Vail, Solomon Vail, Joseph Vail and Leander Vail, defendants herein, in answer to plaintiff’s petition, filed in this cause, say that they are the persons from whom and through whom Wm. Gf. Logan, Henry W. Neilson, J. C. Sherwood, Thomas Pearson, and S. M. Pearson, his wife, and Francis Menown, the present occupants of the land in controversy in this suit and co-defendants herein, claim title under deeds of general warranty.
“That Louis P. Vail, Solomon Vail and Joseph Vail were, in the month of August, 1882, and prior thereto, partners, and that said partnership continued and existed on and up to the month of December, 1882, and prior and subsequent to the fifth day thereof.
“That as partners and with partnership funds and for partnership purposes, the said Lewis, Solomon and Joseph Vail did, on the twenty-ninth day of July, 1881, or thereabouts, purchase the land now sought to be recovered by plaintiff in this suit and described in his petition; that Lewis, Solomon and Joseph Vail, in the •month of August, 1882, and prior and subsequent thereto, were as partners indebted to John and Leander Vail for money advanced them for partnership purposes in the large sum of two thousand dollars or more, and that said indebtedness existed in the month of December, 1882, at and prior and subsequent to the fifth day thereof, on the part of the said Lewis, Solomon and Joseph Vail as partners to the said J ohn and Leander Vail; that at the dates and time named, to-wit, August and December, 1882, the liabilities of the said Lewis, Solomon and Joseph Vail as partners were in excess of their partnership assets ; that some time in the month of September, 1882, Lewis, Solomon and Joseph Vail conveyed to John and Leander Vail, creditors of the partnership, the property now in controversy in this
‘ ‘ Defendants say that plaintiff, prior to his purchase, had both actual-and constructive knowledge of defendants’ possession, claim- and title to the land in controversy in this,suit. Defendants .deny each and every allegation contained in plaintiff ’s petition except what is --hereinafter admitted. , .Wherefore defendants ask judgment and,for. such;other.and further relief as may be proper.”,. -
The reply of the plaintiff to, this answer was, in effeot, a general denial., ...
■ What the answer was of the other defendants, who - w^ere brought in by summons, the record does not disclose, nor -whether .there was any reply to the same. •Both parties seem to have treated the answer of those defendants who - came : in ,of, their own motion, as the ■answer ■ of- all the .defendants. At any rate, the court below found for the defendants, ip accordance with the allegations of: the answer already set forth and entered a decree declaring the lien of the judgment in favor of ■Link, the deed of the sheriff to him, the deed of Link ■ to .Lithgow,. the. deed from .Lithgowto plaintiffs null and void -and of no effect as against all the defendants, except Lewis P.,, Solomon and. Joseph Vail. Costs were also assessed in favor, of the defendants and against the plaintiff, etc. The correctness of that decree is brought in.question by this appeal.
I.- Before discussing, the, merits of the decree, a
II. There are some cases involving equitable questions where we have deferred somewhat to the findings of the lower courts upon questions of fact, and there are other cases where, notwithstanding a certain deference paid to those courts in this regard, we have yet felt constrained to arrive at conclusions from the evidence, totally at variance with those reached below. In the case at bar, the testimony is largely in the shape of depositions, and therefore, the advantages of observing the demeanor of the witnesses, when testifying, was denied to the lower court, so that an equal opportunity is afforded to this, as to that court, of determining what probative force to give to the testimony of the witnesses thus testifying.
IV. But granting that such a firm as Vail & Bros, existed from a remote period down to a date comparatively recent, still it does not follow that it' continued to exist as late as 1882, when the deed was made by the three brothers to John and Leander Vail, within a few days after the property conveyed had been bound by the lien created by the filing of the transcript from the justice of the peace; for it is quite certain that the alleged
Hence, nothing can be clearer, from the facts above stated, than that the firm of Vail Bros., conceding its existence in Illinois, expired when it underwent the successive mutations' disclosed by the record. But apart ¡from that, the new firm expired as already seen, in June
V. Besides, the' attempt of the defendants was to fasten, by parol testimony, a resulting trust upon the property described in the deed, and by such testimony to change the prima-facie operation and effect of such deed, and’ make the property of tenants in common, partnership property: and as such chargeable with a partnership indebtedness. The burden was on them to do this. The rule in this court is settled by a uniform line of decisions that parol testimony, in order to accomplish such an object and secure such an end, must be clear, strong and unequivocal; so definite and positive as to leave no room for doubt in the mind of the chancellor, as to the existence of such a trust. Johnson v. Quarles, 46 Mo. 426; Forrester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 394; Kennedy v. Kennedy, 57 Mo. 73; Modrell v. Riddle, 82 Mo. 31; Berry v. Hartzell, 91 Mo. 132. The testimony in this case falls far short of the standard heretofore established. Indeed, it is impossible to read the testimony in this record, without being impressed with the idea that the theory of a partnership and a partnership indebtedness took its origin after the transcript from the justice of the peace was filed, and other complications began to surround those who now claim to have been partners at the time. The claim of the plaintiff is founded in justice, and the testimony shows that it is at least as much entitled to
The judgment will be reversed and the cause remanded, with directions to proceed in conformity with this opinion.