Close v. O'Brien & Co.

135 Iowa 305 | Iowa | 1907

Sherwin, J.

This suit was brought by the plaintiff to enjoin the defendants from operating a saloon where intoxicating liquors were dispensed. One of the allegations of his petition was that the defendants had not obtained the written consent of all the resident freeholders owning property within fifty feet of the saloon so conducted by the defendants. The petition also questioned the sufficiency of the consent given by the city council of Independence, and raised one or two other minor qxiestions, which it will be unnecessary to consider because of the disposition we make of the principal question involved. The plaintiff was for many years a member of a business partnership, doing business under the firm name of Close & Asmus, and during this time the partnership bought real estate located within fifty feet of the saloon in question, taking the title thereto in the name of Close & Asmus. The plaintiff was asked to give his consent to the operation of the saloon in question, but refused to do so, and thereupon his former partner signed the statement of consent in the firm name, and acting thereon, the defendants have been conducting the business in question. So far as this branch of the case is concerned, the question is presented whether the statement so signed by Asmus in the firm name is sufficient to protect the defendants under the statute, and a solution of this question must necessarily depend upon whether the plaintiff is a freeholder within the county and an owner of an interest in the property deeded to the partnership. Subdivision 2 of section 2448 of the Code provides that a person conducting a saloon shall file a written statement of consent from all the resident freeholders owning property within fifty feet of the building where said business is- carried on.

So far as the record before us discloses, the only real property owned by the plaintiff within the city of Independence is his interest, whatever it may be, in the lot in question, and the appellant contends that his interest therein is not such as to make him a freeholder or an owner within the meaning of the statute. It is a well-recognized principle of law that only a person or an artificial body having a legal entity can hold the legal title to real estate, and hence a partnership, not being in- law a person, cannot as such partnership hold such legal title. 22 Am. & Eng. Enc. of Law, 93, and cases cited; Riddle v. Whitehill, 135 U. S. 621 (10 Sup. Ct. 924, 34 L. Ed. 283). But it is equally as well settled that where real estate is in fact owned by the parnership, but is conveyed to the partners in their individual names, it is held by them as tenants in common. And, where the partnership name consists of the name of one person or partner and company, a conveyance of real estate to the partnership under such name will vest the legal title in the partner whose name is given, and, of course, he holds it in trust for the benefit of the partnership. Riddle v. Whitehill, supra; Percifull v. Platt, 36 Ark. 464; Winter v. Stock, 29 Cal. 407 (89 Am. Dec. 57); Menage v. Burke, 43 Minn. 211 (45 N. W. 155, 19 Am. St. Rep. 235); Holmes v. Jarrett, 7 Heisk. (Tenn.) 506; Powers v. Robinson, 90 Ala. 225 (8 South. 10); Cotton Oil Co. v. Henshaw, 89 Ala. 448 (7 South. 760) ; Washburn on Real Property, 666.

We think the conveyance in the instant case falls within the rule above stated, and not within the rule of the cases where the partnership name did not contain the name of any of the members of the firm. The conveyance here was' to Close & Asmus, who were members of the firm and the only members thereof. It is true that the Christian name of neither was given in the conveyance, but this we think was not fatal to the vesting of the legal title in them, subject, of course, to the partnership debts and the rights of the parties between themselves upon a final settlement of the partnership affairs. It is a well-recognized rule that the grantee in a deed may, under certain conditions, be identified by extrinsic evidence, and, where the grantee may be identified by parol or by other evidence, a conveyance will vest the legal title as completely and as surely as if he were fully identified by tbe conveyance, itself. Holmes v. Jarrett, supra, Ward v. Epsy, 6 Humph (Tenn.) 447; Am. & Eng. Enc. supra; 9 Am. & Eng. Enc. of Law, 133, and cases cited; Staak v. Sigelkow, 12 Wis. 234; Middleton v. Findla, 25 Cal. 80; Lyon v. Kain, 36 Ill. 362; Newton v. McKay, 29 Mich. 1; Irwin’s Heirs v. Longworth, 20 Ohio, 581; 13 Cyc. 539. If it be true that Close is a tenant in common in tbe land in question, be is clearly a freeholder and an owner within tbe meaning of tbe statute in question, and bis consent was necessary. This conclusion disposes of tbe case, and renders tbe consideration of tbe other questions raised wholly immaterial.

Tbe judgment of tbe district court is right, and it is affirmed.