72 P. 578 | Wyo. | 1903
Lead Opinion
This suit was brought by plaintiffs in error to wind up the affairs of the partnership of E..S. Bisbing & Co. by the sale of eight hundred acres of land in Uinta County, in this State, which is alleged in the petition to be the property, and the only property, of the firm. The defendant in his answer denied that the land was partnership property. The evidence showed, among other things, that the title of record to one tract of one hundred and sixty acres of the land was in E. S. Bisbing, to another of three hundred and twenty acres in plaintiff in error, Tregea, and to the remaining tract, of three hundred and twenty acres, in defendant in error, Mills. The court heard the evidence, found that Mills was the sole owner of the tract held in his name, that the plaintiffs had no interest therein, set aside a sale of the land made by a receiver appointed during the pendency of the action and gave judgment in favor of' the defendant for costs.
A number of questions are discussed in the briefs of counsel, but we think it is apparent that if plaintiffs have failed to show by a preponderance of the evidence that the land was partnership property, there is an end of the case and plaintiffs cannot succeed in their action. It is primarily necessary, therefore, to consider the evidence bearing upon this question.
The evidence shows, and it is conceded by all parties, that Mills and Tregea, being sons-in-law of Bisbing, a partnership was formed between the three, about the year 1879 or 1880, for the purpose of ranching and stock raising. Their ranch was near Bear Lake, Utah. Tregea and Mills held title as tenants in common to a part of the land and Bisbing held title to the remainder, but it is conceded that
But Tregea and -his wife and Mrs. Mills, the daughters of Mr. Bisbing, testify that the Bear River land belonged to the partnership. And Mills, upon the other hand, testifies as positively that the land itself was not, and never had been, partnership property, but that the partnership was only in the use of the land.
As tending to support plaintiff’s position that the land was the property of the partnership, are the statements of Tregea and his wife and Mrs. Mills, that such was the fact, though none of them undertake-to rehearse any conversation between the parties in which it was agreed that the land should become partnership property; and it is conceded that no such agreement was ever put in writing. Neither do they undertake to repeat any express admission by Mills that the land belonged to the firm. So that their testimony amounts to little more than that they received the impression from all the circumstances and it was their understanding that the land itself was owned in partnership. It is true the repeat a statement of Mills which they construe as an admission that it was partnership property. Their counsel had written Mills a letter demanding that he make a conveyance of the three hundred and twenty acres to which he held title. And he replied denying any partnership in the land. Mrs. Tregea states that when she saw him shortly afterwards she said to him: “How dare you deny partnership ? and he said, I had to write that to Mr. Ryckman to make a point in law. I said, you know there always was a partnership, and he said, I do not want to sell now. I said, what excuse have you for not selling? and he said he did not want to sell.” And when asked, “Pid he or not admit or deny a partnership?” she replied, “No, he did not deny a partnership to me. He made that reply to save a point in law.” Mr. Tregea states it as follows: “I asked him what he meant by writing a letter to Mr. Ryckman, my
As tending to support the plaintiffs’ case and their claim that all the land, including the three hundred and twenty acres held in the name of Mills, was owned by the partnership, is also the way in which the land was handled and the business conducted. Mr. Bisbing managed the business at all times up to his death in 1900 and, indeed, exercised substantial control of it, the other two partners being occupied in other employment. The land was enclosed by a common fence and there were no partition fences separating one tract from another. There was but one notice of claim for a water right for the entire body of land. Though this
There is also some attempt to show that the expenses of proving up on all the land was paid by the partnership and that certain sheep were sold and the money devoted to that purpose, but there is nothing very definite about the evidence on this point. Mr. Bisbing attended to making the proof for all the tracts and neither Tregea nor Mills knew much about it. But Mills testified that he paid the expense as to his tract out of his own'pocket, Having handed the money to Mr. Bisbing for the purpose'. One witness testifies that in 1882 he was working for them on the Bear Rake ranch when some sheep were sold; and that he understood from the conversation of the parties that they were in immediate need of money to prove up on the Bear River land and that the sheep were sold for that purpose. But as the proof was not made on any of the land for more than a year after this, and the witness was only about thirteen years of age at the time, knew nothing whatever as to whether
On the other hand, there are several facts which indicate a separate ownership of the several tracts, and that such was the understanding of the members of the firm. Mrs. Tregea and Mrs. Mills, in their petition for letters of administration upon the estate of their father, set out that he owned this one hundred and sixty acres of land, and there is no intimation in the petition that his estate was actually a one-third interest in the eight hundred acres. And Mr. Tregea had knowledge of the filing of this petition and of its contents, and acted with them in employing counsel and having it filed. They explain that it was set out in this way under the advice of their counsel and to avoid the expense and delay of having the partnership affairs administered in the probate court. And there is no reason .to doubt the truth of this explanation. It nevertheless indicates very clearly that at this time, which was prior to, the refusal of Mills to join in a conveyance of the land, they had no very definite understanding that all the land actually belonged to the partnership and not to the individuals in whose names it was held.
Moreover, one George Hall, a witness for the defendant, states that, in conversation with Mr. and Mrs. Bisbing, they told him Mills had mortgaged his part of the ranch — his three hundred and twenty acres — and gave him to understand that the individual partners owned their respective tracts. Fie said to them he supposed it was partnership property, like the Bear Rake land, but they informed him that it was only fenced together to curtail expenses, and that they were partners only to that extent. Mrs. Bisbing also stated that their taxes were not as heavy as the others. John Pope, another witness for defendant, also states that Mr. Bisbing, in the presence of his wife, told him that Mills had mortgaged his land over on the river. And in reply to his question, “Have you mortgaged the ranch?” Mrs.
Under this evidence, we think it is clear the plaintiffs cannot prevail in their suit. There is not only no preponderance of the evidence that the land in controversy was owned in partnership, but such preponderance is quite clearly against it. And in actions of this character the plaintiff to succeed must make out his case by something more than a mere preponderance of the evidence. It must be clearly proved. The sale of the land by the receivei could only convey the equity of the partnership and, upon the refusal, as in this case, of the holder of the legal title to convey, the purchaser must resort to some proceeding in the nature of a suit for specific performance to compel him to perfect the sale by a conveyance of the legal title. In such cases, courts of equity uniformly require that the proof shall be clear and satisfactory. (Dunn v. McGovern (Ia.), 88 N. W., 938; Wilmer v. Farris, 40 Ia., 309; Ralls v. Ralls, 82 Ill., 243; Wright v. Wright, 31 Mich., 380; Allen v. Fiske, 42 Vt., 462; Boggs v. Bodkin, 32 W. Va., 566.)
Ralls v. Ralls, supra, was in some of its features similar to the case under consideration and, in announcing their decision, the Supreme Court of Illinois say:. “Keeping in view the rule, as announced so often by this court, that, in a proceeding of this nature, the proof must be clear, we have
Upon all the facts, we are of the opinion that a decree confirming the receiver’s sale, which would be in effect a decree requiring a conveyance of this land by the defendant, would do violence to this well'' established principle, and that the judgment of the District Court, setting aside the sale and dismissing the suit at plaintiffs’ costs, should be affirmed. Affirmed.
Rehearing
on petition for rehearing.
In this case we sustained the decision of the court below in rendering a judgment for the defendant, assigning as •out-reason that, in any view of the several legal questions presented, the evidence of the plaintiffs did not entitle them to a judgment. Their counsel now urges that the court below was of the opinion and it was conceded by counsel for the defendant that the evidence introduced by plaintiffs was full ánd ample to make out their case, but that the court held that the contract of partnership relied on was void because not in writing; that, if there had been any intimation that the evidence was insufficient, much more and conclusive evidence was accessible and would have been introduced on behalf of plaintiffs, and that, therefore, the case should be sent back, in order that they may have an opportunity to try their case properly and make their proof.
There is reason in the proposition that where a party, by an erroneous ruling of the court, has been misled into trying, his case upon a false theory and has thereby been induced to omit the introduction of available evidence tó es
The petition alleged that the partnership was entered upon pursuant to a parol agreement, and there was a demurrer upon the grounds of a defect of parties and that the petition did not state facts sufficient to constitute a cause of action. If it was attempted to take advantage of the defense of the statute by this demurrer, which does not appear, the decision of the court was against it, for the demurrer was overruled. The defense is not set up in the answer, but, instead, there is a specific denial of any agreement concerning the title or ownership of the lands. Neither was there any objection to the introduction of evidence upon the ground that the agreement was void because not in’ writing. And, finally, the court finds specifically that the defendant is the sole owner of the parcel of land standing of record in his name, and that the plaintiffs have no interest therein and there is no reference to the defense of the statute. Under these circumstances, we are not at liberty to go behind the record and accept the suggestion of counsel that the issue, which this court has deemed to be the controlling one in the case, is different from that tried in the District Court.
Counsel also calls attention to the fact that the plaintiffs, who, as he states, are personally known to some of the members of this court as people of high character and standing, testify positively that the lands in question were owned
All of the other grounds upon which the application is based were sufficiently considered in the original opinion.
A rehearing will be denied.
Knight, J., and Potter, J., concur.