37 Kan. 579 | Kan. | 1887
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.
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