184 Ill. 60 | Ill. | 1900
delivered the opinion of the court:
The parties regarded themselves as the owners of the premises in question in proportion as they had contributed to the payment of the purchase price thereof. The fifth clause in the agreement authorized each and any of them “to sell his proportion of the premises,” etc. In equity the parties are regarded as the owners of the land. The fact the legal title rested wholly in Peirce would not, in itself, present an obstacle to the power of a court of equity to decree partition. An equitable title is available on a bill in equity for the partition of lands. (Johnson v. Filson, 118 Ill. 219; 17 Am. & Eng. Ency. of Law, 684; Freeman on Co-teriancy and Partition, sec. 439.) But as the partition of the premises in this instance would operate to defeat the purposes designed to be accomplished by the agreement, it may well be doubted whether partition would be decreed if the contract was otherwise capable of enforcement. An agreement not to partition, though not expressed, would be readily implied and enforced if such implication proved necessary to secure the fulfillment of the agreement. It, however, as we think, was shown the enterprise to which the agreement relates could not be further prosecuted in compliance with the terms of the agreement, but that it had failed, or inevitably must fail, of consummation because of the insanity of said Bissell.
The fourth clause of the agreement committed the care, control and management of the premises to Mann and Bissell, and authorized them, and they undertook thereby, to cause such improvements to be made as should be necessary (or agreed upon) to put the premises in the best shape to attract purchasers; to seek for buyers, and make sale of the premises as a whole, or in lots if subdivided, etc. Mann and Bissell owned but a one-eighth interest in such premises but were entitled to receive one-half of the net profits of the enterprise, and, in addition, to share in the remaining one-half of the profits in proportion to their ownership in the subject matter of the transaction,.—the premises in question. The services to be performed by Mann and Bissell required the exercise of the personal skill, judgment, energy, experience and discretion of each of them, and the presumption is unmistakable that they were selected to perform those duties because they possessed special skill, ability and fitness in the matter of controlling, preparing for sale and selling property of this description. For such personal service, skill and ability they were to be compensated by receiving one-half of the net profits that the enterprise yielded. An agreement entered into between Mann and Bissell entitled Bissell to receive seventy per cent of this one-half of the net profits,—presumably because his skill, ability and experience were in that proportion superior to those of Mann. The other parties to the agreement were entitled to the full benefit of the experience, judgment and skill of both Mann and Bissell. Bissell was adjudged to be insane in January, 1893, and a conservator was appointed to control and manage his property and affairs. His insanity continued from thenceforward, and he was insane and his conservator had charge of his affairs when the decree was rendered, in 1899. The skill and judgment which he is required, under the contract, to furnish the appellees, and the services which he is required to perform in the care, control and improvement of the property, he cannot render, and has not rendered since January, 1893, because incapacitated by reason of his insanity. The property is still owned by the parties, their money still invested in the premises. It cannot be said by appellants, Stanford, the conservator, and Bissell, that Mann is not incapacitated to perform these services, for the reason that this does not relieve Bissell from his obligation under the contract, and for the reason that the contract between the parties entitles the appellees to the judgment, skill and services, not only of Mann, but of Bissell as well.
Though the agreement declares the relation of co-partners shall not be deemed to exist, the enterprise embraced the most important features or elements of co-partnerships. Where parties become partners under an agreement, by the terms of which the capital of one is put against the skill, judgment and services of the other, and the one contracting to furnish his skill, judgment and services is subsequently materially incapacitated therefor by reason of insanity, a court of equity has power to decree a termination of the contract and sell the property involved and distribute the proceeds according to the rights of the parties. (Raymond v. Vaughn, 128 Ill. 256.) We find in the undertaking of the parties before the court the essential facts and substantially the same rights and interests of parties which in the case of a co-partnership authorize the application of equitable principles and the aid of a court of equity in dissolving the partnership and dividing and partitioning the property among those who are entitled thereto as partners, according to their several rights and interests. It is not essential to the application of those principles of equity the enterprise to be dealt with shall come within the technical definition of a partnership. The state of the case developed by the proof in the cause entitled the appellees to the aid of a court of chancery, and to a decree declaring the contract terminated and awarding partition of the premises in question, and that relief was properly granted.
The decree does not, as is complained, order the premises allotted to Peirce and Smith, in case partition is made, shall be sold for cash in hand. The decree is, such sale shall be made under an order of the court, to be entered on the coming in and approval of the report of the commissioners appointed to make partition. The purpose to be attained by the sales of the parcels allotted to Peirce and Smith is to determine whether such parcels will yield a net profit, in order, if a net profit is so realized, Mann and Bissell may receive one-half thereof according to the terms and conditions of the agreement. We cannot assume the court will order such sales to be made for cash in hand. The sales should be on ordinary and reasonable terms of payment, and no doubt the court will so order.
The decree is affirmed.
Decree affirmed.
