Nasholds v. McDonell, 55 P. 894

Nasholds v. McDonell

55 P. 894 | Idaho | 1898

Lead Opinion

HESTON, J.

— Plaintiff brings this action to establish a trust in his behalf in certain real estate situated in Salmon City, Lemhi county, Idaho, and to compel defendant to convey to him a one-half interest in said property. The case was tried by *381tbe court with a jury. The facts, as shown by the record and found by the jury, are substantially as follows: in the year 1882 plaintiff and Egbert Nasholds, the husband of appellant, were partners engaged in the business of running a stage line in Lemhi county, Idaho. In September of that year, plaintiff and said Nasholds purchased of one Calvin the real estate in question, being certain lots in the town of Salmon City, Lemhi county, giving in payment therefor their two joint and several notes for the sum of $500 each, due in twelve and eighteen months, respectively, with interest at the rate of twelve per cent per annum. Immediately after the purchase of said property, plaintiff and said Nasholds (the latter being a married man, and the plaintiff a single man), went into possession of said property, and continued so in possession until the death of said Nasholds, which occurred in March, 1892, since which time plaintiff and defendant have occupied said premises up to the time of the commencement of this suit. At the time of the purchase of said property, the same was public land of the United States, but was subsequently patented under the townsite laws of the United States; and thereafter, in 1883, the same was deeded by the probate judge of Lemhi county to said Egbert Nasholds. This conveyance by the probate judge to Nasholds was made in pursuance of an agreement or understanding between plaintiff and said' Nasholds that, as he (Nasholds) was a married man, he should take the title, and hold the same for the joint benefit of himself and plaintiff. In 1884, plaintiff and said Nasholds having become involved in their operations of running said stage line, they deemed it advisable to file a homestead upon said property; and, as Nasholds was the only one competent to file such claim, it was agreed that he should file it. In 1885, the firm made an assignment of their stage property and interests. The property-had been used and occupied as a hotel for some time prior to the death of Nasholds. The hotel business was conducted by Nasholds and his wife, the defendant, up to the time of Nasholds’ death, since which time it has been conducted by defendant and her two daughters. Plaintiff continued to occupy the premises jointly with defendant during the entire time. No accounts were ever kept, either be*382tween plaintiff and Nasholds, or plaintiff and defendant since the death of Nasholds. Plaintiff contributed toward the expenses of running the house. No account for board was ever made against him. He also contributed his portion in paying the taxes in 1892 and 1893. Some improvements were made upon the premises. They were paid jointly by defendant and plaintiff. The notes given for the purchase price-of the property were not paid at maturity, and suit was brought thereon, and judgment recovered against Nasholds and plaintiff, which was subsequently paid by them, plaintiff paying something-more than one-half. No articles of copartnership, or other writings of any kind, were ever made between the parties. This sort of partnership dealings, while repugnant to all correct business principles and rules, was, in the early settlement of this country, and to some extent still continues to be, quite common, especially in mining camps and localities. All tire rents and profits from the property have been appropriated by the defendant. At the conclusion of the trial the court submitted fifteen findings to the jury, all of which were found in favor of the plaintiff, and were accepted by the court. We have carefully examined the record, and are satisfied that the findings of the jury are fully supported by the evidence.

The objection of the defendant to the competency of plaintiff as a witness is not well taken. Subdivision 3 of section 5957 of our Revised Statutes has no application to a case of this character. (Myers v. Reinstein, 67 Cal. 89, 7 Pac. 192.)

The statute of limitations does not commence to run, in cases of trust, until the trust is denied, either directly, or by some act by the trustee inconsistent with the trust. None of these things occurred in this case until the time, or immediately preceding the time, of the commencement of this suit. (White v. Sheldon, 4 Nev. 280.)

Finding no error in the record, and believing that exact justice has been done between the parties by the judgment and decree of the trial court, the judgment and decree of the district court are affirmed, with costs to respondent.

Sullivan, C. J., concurs. (January 28, 1899.) Quarles, J., having been of counsel for the respondent, took no part in the hearing or decision of this case.

Rehearing

ON REHEARING.

SULLIVAN, J.

— A petition for rehearing has been filed herein. As it presents nothing new, and nothing but what was fully considered by the court in the determination of the case, a rehearing must be denied, and it is so ordered.

Huston, C. J., concurs. Quarles, J., having been of counsel for one of the parties, tcok no part in the consideration or determination of the petition for a rehearing.