Tenney v. Simpson, 37 Kan. 579

Tenney v. Simpson

37 Kan. 579 | Kan. | 1887

*587The opinion of the court was delivered by

Johnston, J.:

The evidence and findings brought up in the record make it clearly appear that the land in controversy was purchased jointly by S. N. Simpson and William C. Tenney. It was a partnership transaction, engaged in for the profits to be derived from the sale of the land after it had been subdivided and platted into lots, blocks, streets and alleys. The lucky opportunity to buy was discovered by Simpson, and negotiations for the purchase from the prior owner were carried on by him. The tract, which consisted of ten acres, was purchased on January 31,1879, for $250 per acre, the agreement being that one-half of the price should be paid in cash, and the residue in one year or less, at the option of the purchaser, with interest on the unpaid portion at ten per cent, per annum. The money necessary for the purchase was to be procured from eastern parties, and as an inducement for them to furnish the money, they were to have a sum equal in amount to that furnished out of the first profits arising from the sale of the real estate. Tenney conducted the negotiations for the money, and procured from the defendant, John F. Moors, $2,500, upon an agreement to return that amount and $2,500 additional out of the profits of the enterprise. In accordance with the agreement, the title to the land was taken in the name of Tenney, and he conveyed it to Moors to secure the repayment of the money furnished for its purchase, and the payment of the additional $2,500 of profit. Moors and wife, by power of attorney, authorized Tenney to lease, bargain, sell or convey • the land in such portions and on such terms as he deemed advisable. Simpson devoted time and special attention to the platting and sale of the land, while Tenney executed deeds for that sold, attended to the financial details by receiving payment on sales made, and to discharging the expenses and debts incurred in carrying on the enterprise. The business of the partnership was conducted without interruption until December, 1883, when Tenney refused to further recognize the rights of Simpson in the land, or to convey the same when sold.

*588 2 Express trust, embraced in several papers.

This case is very similar to the one recently determined in this court where Tenney and Simpson were the principal parties, (Tenney v. Simpson, ante, p. 353; 15 Pac. Rep. 187,) and very little need be added to what was there said. It is contended here that no trust was created in behalf of Simpson by the written contract, or by the acts and agreements of the parties. We have no doubt that the writing signed by them, and set out at length in the report of the referee, created an express trust in favor of Simpson. The plan and purpose of the parties seem to have been clearly understood by them, and to have been explicitly stated in the written agreement which they executed. The writing of February 7,1879, points out clearly the parties, the interest of each, and the nature and subject of the trust. It recites that the land was puchased by Tenney and Simpson, and not by Tenney alone, on January 31,1879. It is claimed that the writing fails to describe the land with sufficient certainty to make it capable of ascertainment. This objection is untenable. In the written agreement the ten-acre tract of land purchased by the parties from Thomas is referred to as being the 'same tract that was described in the receipt given for the first payment on the land, and which is dated at the time of the purchase made by Tenney and Simpson from Thomas. In that receipt, which is signed by Thomas, a definite description of the ten acres is given, as well as the terms upon which it was sold. By this reference the terms and conditions of the receipt became a part of the writing which the parties signed. No particular formality is required in the creation of a trust, nor need all the condi4 ' tions of the trust be expressed in a single paper. The terms of the trust may be embraced in several papers, and it will be valid and operative if they are so referred to and connected as to clearly show that they relate to the same transaction, and together clearly point out the nature and objects of the trust. The written agreement and the receipt must therefore be taken together and treated as one instrument, and so taken they sufficiently express and define the trust. They show that although the title to the land was taken in *589Tenney it was actually purchased by Tenney and Simpson jointly, not for permanent use, but to be subdivided and sold for the profits to be gained therefrom. They disclose that the money was to be obtained on the security of the land itself, and the eastern capitalists furnishing it were to be repaid out of the profits arising from the sale, and in addition to the amount furnished they were to be paid $2,500 out of the first profits arising from sales for furnishing the money. Simpson was to receive one-half of the profits derived from the enterprise, while Tenney was to receive the other half, less the profits paid to the eastern parties for furnishing the purchase-money. The land purchased was to be conveyed by Tenney, “ acting for himself and for S. N. Simpson,” to the eastern parties furnishing the money, who were to hold it until they received back the amount furnished and the $2,500 of profits, when they were to reconvey it to Tenney “ for the benefit of himself and Simpson,” in accordance with the written agreement. It is thus seen that the written contract fully identifies the land, the terms of its purchase and disposition, and that the persons interested, as well as the respective interests which each held and was to take, can be ascertained without difficulty or doubt. When Moors was paid, either directly or through his agent Tenney, the $5,000 and any interest which accrued thereon, it was his duty to reconvey to Tenney. When so re-conveyed Tenney would hold the legal title in trust- for the partnership — “for the benefit of himself and Simpson.” We fail to see how there can be any doubt with respect to the intention of the parties, or with the nature and purposes of the trust. A great deal has been said in argument about Simpson causing the legal title to be taken in the name of Tenney for the purpose of defrauding existing creditors, and it is claimed that under § 8 of the act concerning trusts, no trust could result in his favor unless it was made to appear that the title was placed in Tenney “ without any fraudulent intent.” The statutory provision referred to applies, however, only where a resulting trust is claimed, and not where there is a written express trust, such as there is found to exist in the present case. *590And if it were a resulting trust which was sought to be established, we hardly see how the fraudulent intent to defraud creditors, if there were such, would avail the plaintiffs in error. They were not creditors of Simpson, had no interest in, and were not in any way affected by the claims and judgments which they say existed against Simpson. The referee, however, finds that no such fraudulent intent existed, and certainly there is nothing in the record showing that Simpson dealt otherwise than openly and fairly with Tenney throughout the entire transaction.

*591 1. Partnership. purchase of land; accounting and partition; lien for debt

All the Justices concurring.

*590It is further contended that the trust stated in the written agreement should not in any event be enforced, because it is inequitable and unjust. It is said that the land which was purchased for $2,500 is worth $40,000, and that by the decree Simpson is given $20,000 worth of real estate without having furnished anything toward its purchase, and without at any time having held the legal title to the same. While the profits of the enterprise were enormous, we discover nothing in the contract of the parties, or in its results, that can be regarded as unjust or inequitable as between them. The fortunate chance of buying the laud was found by Simpson, and the money with which to purchase the same was found by Tenney. The land was bought and owned by both, and the purchase-money found by Tenney was obtained on the security of the land, and repaid' out of the profits arising from its sale. Simpson gave time and special attention toward putting it in a salable condition by surveying and platting it, and he also devoted his time to selling and disposing of it. There was no fraud or deception practiced by Simpson, and we see nothing that may be deemed disproportionate or unjust between the shares taken by each in the enterprise, when considered in connection with what they each contributed. Although it is claimed by Tenney that the services rendered by Simpson in the transaction were inconsequential, it seems that a different estimate was placed on them when the transaction was entered into. In writing to the eastern parties with a view of inducing them to loan the *591money for the purchase of the land, Tenney stated that the trade had been brought about by Simpson, and “that great wariness, skill, patience, secresy and perseverance were necessary.” He stated that Simpson was to lay out and sell the land, and was to receive one-half the profits. He further said that he had earned that share, and that he was a very skillful manager, whose share of the work “ was and is indispensable to my (and to your) profit.” We think that Simpson was entitled to the remedy sought; that he was the ,real owner of an undivided one-halt interest m the real estate, and as the accounting made seems not to be questioned, that the judgment and decree must be upheld except in one particular. In the accounting it is found that Tenney is indebted to Simpson in the sum of $57.31, and the court decreed that .in addition to the share of the one-half which is set off to Simpson, be shall be given such portion of the remaining half as will equal in value the amount found due to Simpson, viz., $57.31. In this there was error, as a personal judgment should have been rendered against Tenney for the amount found due on the accounting, and the judgment so rendered should have been declared a lien on that portion of the real estate set off to Tenney. To this extent the judgment and decree of the court should be modified, and when so modified it will stand affirmed. For this purpose the cause will be remanded to the district court.