65 Mo. 138 | Mo. | 1877
This is a suit instituted by plaintiff, Mary E. Willet, as the former wife of one Silas Pi’ice, for the assignment of dower in certain lots in the town of Harrisonville, in Cass county, and for the recovery of damages for the deforcement thereof. It is alleged that her former husband, Silas Price, was seized of an estate of inheritance
Defendant, in his answer, alleged that the lots in which dower is demanded by plaintiff were purchased by the firm of S. Price & Co., a partnership composed of Silas Price and Charles Keller, with partnership funds for the purposes of said partnership. That they were treated, held, owned and considered by said firm' as partnership property, and that after the death of said Silas Price, they were sold as stated in the petition by defendant, as the administrator of the partnership estate of said S. Price & Co., for the purpose of paying partnership debts, and that said partnership estate was insolvent and insufficient to pay the debts of said firm. The replication denies all the averments of the answer except the one charging the insolvency of the firm of S. Price & Co., and one charging that the lots were sold to pay .partnership debts. Upon a trial of the cause, the Court rendered judgment for the defendant from which plaintiffs have appealed.
As the error complained of is based upon the action of the Court in giving and refusing instructions, we copy them herein.
1st. If the Court, sitting as a jury, .shall find from the evidence that the real estate in the petition described was purchased by the firm of Silas Price & Co., and conveyed to Silas Price and Charles Keller; that they composed the firm of Silas Price & Co.; that said real estate was paid for by said partners with partnership funds, then said Price
2d. If the Court, sitting as a jury, further finds that said Price has departed this life, that plaintiff, Mary "Willet, was the wife of said Price, the Court, sitting as a jury, will find the issues for the plaintiffs, notwithstanding it may appear that said real estate was purchased by said firm and paid for out of the partnership funds, unless it shall further appear that it was purchased by said firm for its use in car-, rying on and transacting its partnership business.
The first of these instructions was given, the second was refused, and the Court, of its own motion, gave the following :
The Court, sitting as a jury, declares the law to be, that, though the said Silas Price and Charles Keller, composing the partnership firm of Price & Co., purchased the real estate described in the petition, with partnership funds, and by reason of such purchase held the same as tenants in common; yet they held the same in trust for the payment of partnership debts and liabilities ; and if the Court finds from the evidence and the admissions in the pleadings that said property was purchased out of the partnership funds, to be used and applied to partnership purposes, and that the same was treated by said partners as a part of .said partnership stock, and that said partnership was insolvent, at the time of the death of said Price, and that it became necessary to sell said property, and the same was sold for the purpose of paying the partnership debts, then the plaintiff is not entitled to dower in the same, and the finding will be for the defendant.
The instruction given by the Court of its own motion, seems to be fully warranted by the cases of Carlisle, admr. v. Mulhern & Keyser, 19 Mo. 56. Duhring v. Duhring, 20 Mo. 174. In the former case the question before the Court was identical in principle with the one presented here. The contest was between the administrator of Carlisle, and Keyser the administrator
It is argued as a further objection to the action of the trial court in giving the instructions complained of, that sec. 23, Wag. Stat., 542, provides “that the widow shall have dower of real estate, although there may have been no actual possession by the husband in his life time, and although the same may have been held by him as partner.” We cannot give to this statute such a construction as to make it declare that the widow of a tenant in common who holds real estate charged with a trust expressed either on the face of the conveyance under which he holds, or which is raised by legal implication from its being expressed on the face of the transaction itself, though not expressed in the deed, would be entitled to dower in such estate. Judgment affirmed with the concurrence of the other Judges,
Aeeirmed.