172 Iowa 543 | Iowa | 1915
J. J. Billick died seized of 240 acres of land and leaving him surviving a widow, Susan A. Billick, who died in 1899, and five sons and one daughter. Of the sons, Seef Billick remained single, and died in 1897. Freed Billick departed this life in 1910, leaving him surviving five children and four grandchildren by a deceased daughter. ■ T. J., or Jefferson, Billick died January 1, 1913, at the age of 65 years. Lewis A. Billick was born in 1872 and, therefore, was fifteen years old at the time' of his father’s death. The plaintiff, Ella Billick, married Frank Lutz, February 14, 1900, and had lived on the premises up to that time. James II. Billick. is still living. At the time of the death of T. J. Billick, title to about 450 acres of land stood in his name, and in this suit the plaintiffs pray for the partition of said land. Lewis A. Billick, by way of cross-petition, alleged that he was joint owner of said premises with deceased, T. J. Billick; that he and the deceased entered into an oral agreement about the year 1889, under thé terms of which they were to “take over and acquire all the land of which their father, James J. Billick, died seized; that they should work together jointly, cultivate the land and engage in the business of farming and stock raising together, and by their joint efforts and the proceeds of such business pay all of the debts, claims and incumbrances against the estate and the lands of which their father died seized, and in that way, acquire said lands and own them together in equal shares”; that, in pursuance of said agree
From this statement, it is apparent that the main issue is whether the land was acquired as averred by Lewis A. Billick. The contention as to one tract may be disposed of at the outset. Title to the S. E. ]4 N. W. % and S. W. % N. E. of Section 13 in Township 76 was acquired by T. J. Billick January 21, 1879, or about eight years prior to the death of J. J. Billick, and by him retained until his death. Whatever may have been the subsequent arrangement, it could not have entered into the purchase or payment of the purchase price of this 80 acres. Title to the S. W. *4 of Section 13 and the E. y¿ of the S. E. 14 of Section 14 was obtained by deceased from the administrator of his father’s estate. Of the other land, he acquired title to 80 acres in 1899, and to other portions of the farm in 1901,1902 and 1911. In other words, all the land except 80 acres, deeded to him in 1879, was acquired and title taken in the name of T. J. Billick after his father’s death. The indebtedness of J. J. Billick at that time equaled, if it did not exceed, the value of the estate, and the theory of the plaintiff is that shortly after his father’s death, T. J. Billick, who was then unmarried and 39 years of age, proposed to his brother, Lewis A. Billick, then a little over 15 years old, that they operate the farm together and out of the profits pay the debts
A partnership is treated in law as a distinct and separate entity, and the purchase of property- in the name of one of its members or of a stranger, with partnership property, raises a resulting trust in its favor precisely as though an individual’s property had been made use of for that purpose. In re Estate of Mahin, 161 Iowa 459; Amidon v. Snouffer, 139 Iowa 159, and cases cited therein; Culp v. Price, 107 Iowa 133, 135. See Western Securities Co. v. Atlee, 168 Iowa 650.
The theory of appellant is that a partnership was entered into and money belonging thereto was paid for the land, and if so, deceased held same in trust for such partnership
Gerard testified that, after the father’s death, Jefferson and Lewis did the farming; that it was pretty hard to tell which was boss; that, in response to the question, “What are you going to do with Lew, your brother?” Jefferson answered that he promised Lew that, if he would stay there- and help him pay out, he would divide equally with him; “told me that he and Lewis were in partnership on the place. Jeff refused to rent me land until he saw Lew. When.we talked about this .partnership, we were talking about the Billick land. He said they were in partnership in farming and not partners in anything else that I know of and did not always consult Lew before renting.” In September, 1912, he (Jefferson) was asked by one Taylor as to who owned the place, and responded: “Why Lew and I own.it together. It is as much mine as Lew’s.” He stated that he had assumed the debt when his father died and got the deed and had taken Lew, his unmarried brother, with him if he would stay, to share one half with him and do the work on the place. He would look after the- business operations and Lewis would look after the work, and work together and share half the real estate and everything with him. The witness also tésti
To Poyneer, he spoke of the condition of the property, and told him that he had said to Lew: “If you will stay right here with me, we will take hold of this thing and work it out and pay the indebtedness and we will own it together”, and expressed his pride that they had been successful in paying off the indebtedness and spoke in the most kindly terms of his brother and explained that, as Lewis was a minor, he had taken charge in so far as the title to the property was con
Much that witnesses testify to relates what deceased declared he proposed to do in the future. This may have been owing to the method pursued in the transaction of the business apparently necessary during the minority of Lewis A. Billick, and which was followed thereafter, possibly as a matter of habit or, as intimated in the record, for the preservation of a home to Jefferson. They may well be construed as relating to their joint ownership or his obligation to' convey because of having acquired the property in pursuance of their previous partnership arrangement. Such declarations are not inconsistent, but in entire harmony,, with his statements to other witnesses concerning his proposal of partnership shortly after his father’s death, the acceptance of such proposition by Lewis, and how the purposes of such joint enterprise had been carried out. The manner of handling and cultivation of the land, its improvement and the fact that Lewis neither had nor claimed other recompense for his labors for nearly 26 years, strongly confirm the inference to be drawn from such declarations that a partnership had been formed and the lands acquired in its behalf, as deceased repeatedly stated. This is not a case where a partner purchased with his own funds, as in Norton v. Brink, 75 Neb. 566, 575 (121 Am. St. 822), but where partnership funds have been used for that purpose. See Robinson Bank v. Miller, (Ill.) 27 L. R. A. 449. As said, in Van Buskirk v. Van Buskirk, 148 Ill. 9, 20:
*553 ‘ ‘ There is a clear distinction between proof of the declarations of the grantees to the effect that he holds the. title for another, or has agreed to convey to another, and his declarations or admissions to the effect that another person’s money was paid for the land. Declarations of the latter class are entitled to more weight than those of the former class. ’ ’
It is not pretended that the deceased had any means out of which to purchase lands, save those derived from the mutual enterprise in which the brothers were jointly engaged; and, though considerable business sagacity was manifested in manipulating the indebtedness which apparently would not down, we are abidingly convinced that a copartnership was entered into, as alleged, shortly after the father’s death; that it continued down to the death of T. J. Billick; that all the lands in controversy, except 80 acres previously acquired by him, were purchased in his name for the partnership, and whatever was paid thereon, aside from borrowed money, was out of the income from the farm. Having so found, it necessarily follows that deceased held title as trustee for himself and Lewis A. Billick. Decree should have been entered adjudging the latter the owner of one half of all the land except the S. E. Yi N. W. % and S. W. % N. E. % of Section 13, and awarding one fourth of said 80 acres and of one half of the remaining land each to Mrs. Lutz, James H. Billick and Lewis A. Billick and to the heirs of Freed Billick.
Probably some further order will be necessary with reference to the payment of incumbrances and claims, and the cause is remanded for the entry of a decree not inconsistent with this opinion. — Modified and Remanded.