210 P. 896 | Mont. | 1922
sitting in place of MR. JUSTICE FARR, disqualified, delivered the opinion of the court.
This is a suit instituted by the plaintiff, as administratrix of the estate of S. B. Wilson, deceased, against the defendants, to obtain a partnership accounting and other relief. It is alleged in the amended complaint that S. B. Wilson died intestate in Ismay, Montana, on the fourteenth day of July, 1915; that letters of administration of his estate were duly issued to the plaintiff, his widow, in the district court of the sixteenth judicial district of the state of Montana in- and for the county of Fallon, on the twenty-seventh day of September, 1915; that for several years, and until the said July 14, 1915, a partnership existed between the deceased and the defendants under the name of Wilson Bros.; that the partnership was formed for the purpose of carrying on the business of farming, of raising, buying and selling livestock, and of operating one or more threshing-machines; that the defendants, as surviving partners, are in possession of the partnership books and assets; that up to the time of the death of S. B.
The answer admits the allegations relating to thé death of S. B. Wilson, the appointment of the plaintiff as administratrix of his estate, the existence, duration and purposes of the partnership, the ownership of certain personal property by the partnership, and the absence of an accounting between the partners in the lifetime of S. B. Wilson, and denies all the others. The defendants' in what is termed a separate defense and cross-complaint allege, among other things, that about the year 1908 S. B. Wilson made proof upon a certain homestead described as the southeast quarter of section 29, township 8 north, range 55 east, and subsequently received a patent therefor; that about the year 1911 he made proof upon certain desert land described as the north half of the southwest quarter and the south half of the northwest quarter of section 28, township 8 north, range 55 east, and afterwards received a patent therefor; that after proof upon the homestead on the one hand and upon the desert land on the other it was agreed between the plaintiff’s intestate and the defendants that, in consideration of their continuing to serve the partnership, and to conduct the particular ranch and improvements thereon, as the ease may be, each of the partners should have an undivided one-third interest therein; that the defendants did the things required of them, and that during the lifetime of S. B. Wilson, and subsequent to the issuance of patent, he
The reply admits that S'. B. Wilson made proof upon the homestead about 1908 and upon the desert land in 1911, and purchased the third tract above described from the Northern Pacific Railway Company in 1908 in his own name, and denies the other averments.
The court made findings of fact and conclusions of law, and entered in accordance therewith what is designated as an “interlocutory order and decree.” In this judgment it is decreed, among other things, that S. B. Wilson held in Ms own name in trust for the partnership the desert land and the land purchased from the railway company; that the interests of the partners in the partnership property were equal; and that one S. D. McKinnon be appointed referee to take an account of all the business transactions of the partners as such and report the facts. The court found that S. B. Wilson located the homestead in or about the year 1902, and made final proof so as to entitle him to patent therefor in or about the year 1908, but made no disposition of it in the decree. From the judgment and an order denying her motion for a new trial, the plaintiff has appealed.
Counsel for the respondents have urged in their brief and in the oral argument as well that the appeal should be dismissed for want of jurisdiction in this court. They contend the judgment is not final, and therefore, under the provisions of section 9731, Revised Codes of 1921, not appealable.
In the brief of appellant it is conceded that the railroad land was partnership property, and should be considered as such in the final accounting between herself and the respondents. “No error,” the brief goes on to say, “is predicated upon the holding of the court in regard to the railroad lan'd, except in so far as we shall contend that the defendants’ so-called cross-complaint is improper, and that the court was without jurisdiction to enter any judgment to the effect that S. B. Wilson was the trustee of the defendants in holding title to this land, except as a copartner.” With this admission before.us we shall not hereinafter attempt to summarize the facts in connection with the purchase of said land.
Begarding the desert land appellant contends: “First, that any agreement or understanding had between the co-partners to convey to the defendants or to the copartnership,
The evidence shows that S. B. (also called Sam) Wilson, Clarence R. Wilson and Cliff Wilson were brothers, and came to Bozeman, Montana, from Missouri in 1898. In 1899 they moved to Fallon, Montana, where they worked on the Northern Pacific Railroad for some months. At that time Sam was about twenty-one, Clarence about seventeen, and Cliff about sixteen years of age. Shortly after their arrival in Fallon they agreed among themselves to become partners under the name of Wilson Bros, for the purpose of investing their savings in cattle, and engaging actively, as their resources permitted, in the business of buying, selling, and raising livestock. It was further agreed that they should be equally interested in the partnership property and profits. Sam, presumably because of being the eldest and most experienced, was selected as treasurer and manager of the firm. In the spring of 1899, seventeen and in the fall of the same year twenty-four cattle were bought with partnership funds. The three continued to work for wages until 1902, and in the meantime did not themselves attend to the grazing, housing and feeding of the cattle, leaving that to others who were more favorably situated. During this period Sam received for the partnership all the earnings of Clarence and Cliff, except what they used for bare necessaries. Appreciating the advantage of possessing land for the business in which they were engaged, Sam, in August, 1902, entered the homestead already referred to and described. Cliff followed him thereon in October, and from then on until the death of Sam gave almost his entire attention to the affairs of the partnership. Clarence did not go on the homestead at that time, as there was not' enough work for all of them, but continued in the service of others mostly until 1910, giving to Sam for the use of the firm such portions of his
We agree with the contention of appellant that the evidence does not establish an agreement or understanding between the partners to the effect that S. B. Wilson would transfer an interest in the desert land to Clarence Wilson and Cliff Wilson or the partnership. But it is not correct to say that the trial court found there was such an agreement or understanding or one like it. The court found “that all the labor upon said desert land entry and money expended thereon in meeting the requirements of said desert land entry act was performed and expended by and on behalf of said copartners, and on the implied understanding that said entry should inure to the
Is the conclusion of law sound? Does the evidence establish a resulting trust in the land in favor of the partnership? The answer must be in the affirmative. Partners occupy a fiduciary relation toward one another, and the rule of law is well settled that, where one partner having possession and control of the partnership funds uses the same to purchase land in his own name, the land so purchased inures to the benefit of all the partners, and each of his copartners may demand an interest in the property acquired corresponding in extent to his interest in the funds in the first instance. In other words, under such circumstances, a -resulting trust in the property springs up in favor of the partnership, and the grantee holds it as a mere trustee for the partnership. (Sec. 6785, Rev. Codes 1921; Lynch v. Herrig, 32 Mont. 267, 80 Pac. 240; Eisenberg v. Goldsmith, 42 Mont. 563, 113 Pac. 1127; Marcellus v. Wright, 51 Mont. 559, 154 Pac. 714; Deaner v. O’Hara, 36 Colo. 476, 85 Pac. 1123; School District etc. v. Peterson, 74 Minn. 122, 73 Am. St. Rep. 337, 76 N. W. 1126; 3 Pomeroy’s Equity Jurisprudence, sec. 1049; 1 Perry on Trusts, 190, 193; 26 R. C. L. 1227; 39 Cyc. 104, 152.) The fact that the land at the time of the purchase was a part of the public domain does not affect the rule. So soon as the patent issues therefor a trust results. (39 Cyc. 117; 32 Cyc. 1061.) Since a resulting trust in realty arises through opera-tion of law and not out of a contract it may be proved by parol evidence. The statute of frauds does not, therefore, apply. (Sec. 6784, Rev. Codes 1921; Lynch v. Herrig, 32 Mont. 267, 80 Pac. 240; McCaleb v. McKinley, 80 Okl. 38, 194 Pac. 105; 3 Pomeroy’s Equity Jurisprudence, 2357; 1
In view of some of the things we have so far said, it is hardly necessary to notice section 4682, United States Compiled Statutes, upon the provisions of which counsel for appellant so strongly rely for a reversal. It is not claimed, and indeed the evidence entirely fails to show, that an assignment of the desert land entry was made by S. B. Wilson to the partnership. Neither, as we have already pointed out, does it show an executory agreement on his part to convey to the partnership the desert land or any interest therein after the issuance of patent to him. We express no opinion as to whether or not such an agreement, if made, would be invalid as violative of said section, as the question is not properly before us. The case of Eymann v. Wright, 177 Cal. 144, 169 Pac. 1037, cited by appellant, holds that an agreement of that sort is invalid. Cases which take the other position are Adams v. Church, 193 U. S. 510, 48 L. Ed. 769, 24 Sup. Ct. Rep. 512 [see, also, Rose’s U. S. Notes] , Coburn v. Bartholomew, 50 Utah, 566, 167 Pac. 1156, Freeland v. Dolen (Okl. Sup.), 203 Pac. 182, Botwin v. Wise, 46 Cal. App. 465, 189 Pac. 312, Church v. Adams, 37 Or. 355, 61 Pac. 639, and Arnold v. Christy, 4 Ariz. 19, 33 Pac. 619.
Appellant argues that in admitting and considering evidence of admissions made by S. B. Wilson, and in permitting one W. B. Leavitt, an attorney, to testify to a conversation with him, the court disregarded section 10535 and section 10536, Revised Codes of 1921, respectively. The point is without merit, and we dispose of it simply by saying that the rule is elementary that a court cannot be put in error where timely objection is not made either to the competency of the evidence or of the witness, as was the case here.
Finally, appellant asserts that the cross-complaint 'is improper, and insufficient and does not support the judgment in so far as it favors the defendants. Assuming for the sake of argument that it is- neither proper nor sufficient, it does not follow that the judgment cannot stand. The evidence
A careful consideration of every phase of the case impels us to the conclusion that the findings and decree of the lower court are correct, and are amply sustained by the record.
The judgment and order appealed from are affirmed.
Affirmed.