62 Wis. 418 | Wis. | 1885
Another reason why the purchasers at the foreclosure sale did not take the absolute title to the lot, is that they agreed before the sale to recognize the contracts made by Allen and his grantees for the sale of lots, and to protect the holders,— that is to say, to carry out and fulfil said contracts; and, in consideration of such agreement and on the faith of it, the holders of such contracts did not bid upon the mortgaged property, or seek to enhance the price for which it was sold, or take any other steps to protect their interests, but allowed Phelps-and Corwith to purchase it at their own price. This, although a parol agreement, was valid and binding upon Phelps and Corwith, and the title to the lot in question, which they took under the sheriff’s deed, was subject to the equitable interests of Hall and Martin, and became a mere security for the payment of the money due on the contract under which they held the lot. The judgment of this court in Wilcox v. Bates, 26 Wis. 465, fully establishes this last proposition.
Phelps and Corwith carried out this agreement in good faith. On payment to them of -the amount due upon the contract they conveyed the lot to Hall after- Martin’s decease, and to show somewhat the character of the conveyance, they described the grantee therein as “ surviving partner of the late firm of Welch, Martin & Co.” That the lot became, by virtue of such conveyance, an asset of the late firm of Martin & Hall (which had acquired Welch’s interest) does not admit of controversy. It was undoubtedly paid for out of the assets of that firm. Hall scheduled it as one of the assets of the firm, and accounted for Martin’s interest in it in the settlement of his accounts as administrator of the estate of Martin. •
In view of the foregoing facts, it must be held that Hall
The contention of the appellant is that the lot is to be regarded as personal property in the hands of ITall; that it was competent for him to become the purchaser thereof at his own sale; and hence that by such purchase he became the absolute owner thereof. The lot was purchased and used for partnership purposes. The store in which the firm of Welch, Martin & Co. carried on business stood upon it. If it is treated as personal property, although we might not be able to hold that Hall could become the purchaser thereof at his own sale, yet it is probably true that the sale and conveyance thereof made by him to the defendant’s testator, Thomas Morris, would have vested a good title thereto in the latter, and that the remedy of the plaintiff would not be against such purchaser, but against Hall, to compel him to account for the proceeds of the sale. Hence the question
In the administration proceedings, the lot in controversy was appraised at $2,098.50, and the appraisal shows that the net interest of Martin in the partnership assets was of the value of $3,574.20. It thus appears that there was no necessity for selling the lot in order to close the affairs of the late firm. It may reasonably be inferred from the testimony that the business of that firm was fully settled, and its debts paid, years before Hall conveyed the property to Thomas Morris,— probably before he rendered his final account as administrator. Certainly the lot was not sold to pay the copartnership debts. While such debts remained unpaid, Hall held the property as surviving partner, not as administrator. The firm debts having all been paid, the question is whether the interest of the deceased partner in the property descended to his heir as real estate, or did it go to the administrator as personal assets. The rule on that subject, which seems to prevail in this country, is stated by Chancellor Walworth in Buchan v. Sumner, 2 Barb. Ch. 165, as follows: “As between the personal representatives and the heirs at law of a deceased partner, his share of the surplus of the real estate of the copartnership, which remains after paying the debts of the copartnership and adjusting all the equitable claims of the different members of the firm as between themselves, is considered and treated as real estate.” Page 201. This rule was sanctioned and applied by this court in Bird v. Morrison, 12 Wis. 138 (p. 170): and in Pierce v. Covert, 39 Wis. 252. To the same effect is Shearer v. Shearer, 98 Mass. 107. See, also, Parsons on Partn. (3d ed.) 376; Tiedeman on Real Prop. § 246, and cases cited.
Such being the character of the conve3mnce from Hall to Thomas Morris, the latter took only the title which the grantor had, and is not in a position to claim protection as a bona ficle purchaser, without notice of the plaintiff’s interest in the lot. Oliver v. Piatt, 3 How. 333 (410); May v. Le Claire, 11 Wall. 217; Dickerson v. Colgrove, 100 U. S. 578. These observations have no reference to the effect of the registry laws.
There is no finding which expresses this view of the con
We conclude, therefore, that under Hall’s conveyance to Thomas Morris, the latter took the absolute title in fee to an undivided one-half of the lot, and only the legal title to the other undivided one-half thereof, in trust for the plaintiff. It is scarcely necessary to add that the defendant, to whom the lot was devised by Thomas Morris, is in privity with him, and has no greater estate therein than his testator.
When the administration of the estate of Martin was closed, Hall was appointed guardian of the plaintiff. He thereupon opened an account as such guardian, and charged himself with $1,949.10, which was the net proceeds of the estate of Martin. It does not appear that he ever rendered
Considering all the circumstances of the case, we think it is not proved that the plaintiff received any money from Mrs. Hall. All reasonable probabilities are to the contrary. The sum received by Hall as guardian in 1865, and the interest thereon to the time these admissions were made,— a period of eighteen years,— would amount to over $4,000. Even had he received only the principal, some other evidence could have been procured, and doubtless would have been, to show the payment and receipt of the money. This was
Other propositions were discussed on the argument of this appeal, but it is unnecessary to consider them. It is believed that those above determined cover the- whole case on the merits. It necessarily follows, from the views herein expressed, that the plaintiff is entitled to judgment enforcing the execution of the alleged trust in respect to the lot in controversy.
We find a statement of the account in the brief of counsel for the plaintiff, which, in the main, is correct. The following corrections have, however, been made therein: A charge of $75 in 1873 for rent to Reckard is stricken out, because the defendant testified he did not collect it. A grading tax for $145, inserted therein as without date, is allowed as of 1876. The rent to John Colle, charged in the account of 1880 at $300, is reduced to $150, on the plaintiff’s testimony that the store stood idle a'portion of tbe year. Also, $35 is allowed in that year for the expense of dispossessing a tenant who refused to pay rent. It will thus be seen that the net amount of rents and profits, which was $3,000, allowed by the circuit court, is not too large.
After a careful consideration of the whole case, aided as we have been by the very able arguments of the respective counsel, we find no reasons for disturbing the judgment of the circuit court.
By the Gourt.— The judgment is affirmed.