80 Mich. 518 | Mich. | 1890
The bill in this cause was filed to obtain the title to the undivided two-thirds of a lot of land in the village of Red Jacket. The undisputed facts as to
In 1884, the defendant, his brother John Foley, and Michael Smith, a brother-in-law to the Foleys, were co-partners in business under the firm name of Foley Bros. & Co. Susan G. McDonald owed the firm a debt of over $1,500. A judgment was obtained against her, execution levied on this lot, and the same sold and bid in, in thé name of the defendant, for the sum of $1,000. No money was paid upon the sale, but the $1,000 was applied on the judgment as part payment. This sale ripened into a sheriff’s deed of the land to defendant, February 24, 1886.
The bill claims that the lot was bid in by the defendant, and the deed taken in his name, without the knowledge or consent of John Foley and Michael Smith, and with an intention on the part of defendant to cheat and defraud them; that the copartners Smith and John Foley were kept in ignorance of the true state of the title until after the dissolution of the copartnership. It is contended that the purchase of said premises, under the circumstances, gave the said John Foley and Michael Smith an equitable estate therein of one undivided one-third each, and that the defendant holds the legal title of such interest in trust for the complainant, who is grantee of said John Foley and Michael Smith, by virtue of a deed bearing date July 26, 1887, for which he gave a valuable consideration.
The defendant' claims that he virtually bought this land with his own money, and the whole of the same is equitably his. He says that in October, 1880, he received $1,400 from the sale of lands that belonged to him individually; that this sum he deposited to the credit of the firm, and it was used for their benefit; that such sum was never drawn out of the firm by him, except that,
He denies that there was any understanding that the lot in question was to be bid in for the benefit of the firm, or that the other copartners had or are entitled to any interest, legal or equitable, in said lot. He denies that there was ever any dissolution of the copartnership, except as they ceased to do business, or that any settlement or adjustment has ever been had between the copartners concerning the partnership business, or that he is indebted to the copartnership as charged in complainant’s bill; but alleges that, on a settlement, the firm would be found indebted to him in a large amount.
The proofs were taken by stipulation before a circuit court commissioner and by interrogatories, and upon hearing and argument the circuit judge, Hon. William D.' Williams, decreed that the complainant was entitled to have conveyed to him the undivided two-thirds of the lot, and directed the defendant to convey such interest to him, subject to the rights of said defendant, Martin Foley, in the same, as partnership property of Foley Bros. & Co., on final settlement between the partners composing such firm, “should an accounting be had hereafter.” From this decree the defendant appeals.
We are satisfied that the defendant’s version of the transaction is correct. The undisputed testimony shows that in 1860, and before that, the defendant and his two
“No objeetion was raised by me, for the reason that I did not know of the fact until long after our business relations had ceased. I have never asked him to convey a part of said lot to me.”
Smith testifies substantially the same. Both of them also swear that, during all the time of the copartnership, down to the last moment of its existence, each copartner drew money and goods from the business for his own living and his own purposes, from time to time, as he needed, and- no account was kept of such money, goods, and other things drawn out of the several stores by the several partners for their living or for their private purposes.
It was claimed by defendant that, under this common and brotherly using of the property of the firm when needed or desired, for the benefit of each individual member, without any account or reckoning kept between them, the others drew out a great deal more than he did, as he was for a long time a single man, with less wants and necessities than those who were married, and had families to support; and that, if an accounting could be had, it would show the firm largely indebted to him for this reason. In this regard Smith and John Foley testify that in their judgment defendant drew out more than they did, but that they have no accounts by which they
John Foley and Smith testify that they never made any claim upon defendant for any share in this land. Their excuse is that when they found out he had taken the title in his own name it was to late to do so. They knew of it when the deed was issued, February 24, 1886. They did not deed their interest to complainant until July 26, 1887, nearly a year and a half afterwards. If, during this time, they considered that the defendant, Martin Foley, had committed a fraud upon them in thus taking the title in himself, it seems strange that they did not in some way make known to him that they claimed or thought they ought to have some interest in this land. The defendant testifies that he told Smith about it, and that he made no objection. The defendant's theory is the most consistent with the actions of the parties, as their acts appear from the undisputed facts, and the decree of the court below will therefore be reversed and set aside.
A decree will be entered here dismissing the bill of complaint, with costs of both courts to defendant.