24 Ind. 68 | Ind. | 1865
Partition. The plaintiffs and defendants were the: heirs at law of Patrick McDonald, deceased. The defendants, who are appellants here, claimed each one-third of the land5 by answer, in the nature of a-counter-claim, in which they admit that the legal title was in Patrick at .the time of his death, but aver that they, Ddward and Michael, were the equitable- owners of the undivided two-third part thereof, because they and the said Patrick McDonald purchased said lands in partnership, paid for the same with their joint moneys, had occupied them in common, and improved them; for their j oint benefit, and had cultivated .them continuously for their joint support, and as partners, from the date off purchase to the -time of the death of Patrick, &o,;-and that the deed for the several pieces of land described, were made to Patrick to be held, and which he did hold, by agreement, in trust for said partnership concern.
Reply: 1st, general denial; 2d, twenty years adverse possession. Verdict and judgment for plaintiffs.
A cross error assigned may as well first be considered. It is, that the defendants were permitted to testify as witnesses
The evidence strongly supported the allegations of the answer. It tended to show an agreement between the throe brothers, made in Europe, and afterward renewed in this country, to labor on joint account, for the purpose of creating a common fund, to be invested in lands for the benefit of all, and that this agreement was faithfully executed, each by his earnings contributing to the fund, and that the lands so purchased were jointly occupied and used; but this contract was not in writing, and the title deeds, were all taken in the name of the deceased, by agreement as alleged.
The question raised by instructions given to the jury, and others asked and refused, and which we must decide, is whether, under such circumstances, there would be a resulting trust in favor of the appellants.
But it seems to us that our statute concerning trusts and powers conclusively settles a part of the case before us. It somewhat changes the general doctrine previously held, but makes a rule which is applicable to all the lands, which were purchased after the act came in force. It provides generally that where a conveyance is made to one, the consideration being paid by another, no trust shall result in favor of the latter, if the conveyance was so taken with his consent, except in certain oases; and one of the cases so excepted is where by agreement, without any fraudulent intent, the party to whom the conveyance was made was to hold the land in trust. 1 G. & H. §§ 6, 8, p. 651. It appears by the evidence that several of the tracts of land were conveyed to Patrick after this statute took effect, and there is nothing to taint the transaction with a fraudulent intent.
'We have not considered a question much discussed in the briefs, whether there was such a partnership between the three brothers as would subject the estate in these lands to commercial conditions, like personal property, and whether such partnership contract is within the statute, for the reason that it has seemed to us unnecessary for the purposes of the present ease. It is enough that the lands
It is argued, however, that the evidence did not disclose exactly what aliquot part of the purchase money of the lands belonged to the appellants respectively, and consequently that there could have been no verdict for them at any rate. ¥e cannot say that. There was evidence upon the subject which would have justified the jury in finding some part of the money to have been paid by them, and possibly that each paid one-third. "We are not called upon to say what the jury ought to have found upon that subject. That there was evidence upon it which would have supported a finding for the appellants in this court, and that it was excluded from their consideration by the charge of the court that “the defendants have failed to sustain their answer,” constitutes error which must reverse the case.
The judgment is reversed, with costs, and the cause remanded for a now trial.