Richardson v. Ruddy

Dismissal of Appeal — Continuance:—Application foe — Contract— Partition of Peal Estate. 1. Under the provisions of subdivision 3 of section 3807 of the Revised Statutes, if an appeal from an interlocutory judgment is not taken within sixty days after such judgment is entered, the same will be dismissed on motion. 2. The action of the trial court in denying the motion for a continuance will not be reversed unless it appears that the court in denying such motion has abused its discretion. 3. In a suit for the partition of real estate among several' parties, if it appears to the court that it is impracticable. or inconvenient to make a complete partition in the first instance among all the parties to the suit, the court may direct a partition among-two or more of the parties and from time to time thereafter may determine as to the other’s rights, shares and interests, and render-a further judgment directing a partition, in like mann.er, of all the undetermined parts and portions of the property. (Syllabus by the court.)

APPEAL from District Court of Nez Perce County. Honorable Edgar C. Steele, Judge. Action for partition of real estate. Judgment for plaintiffs. This is a very peculiar case, and about the most charitable-thing to be said of the complaint is that it is “fearfully and wonderfully made.” The complaint was undoubtedly framed' on one theory, the case tried on another and decided on another. The objection to the introduction of evidence should have been, sustained for the reason it was not shown by the complaint that, any act was ever done constituting Eichard Buddy a trustee, or how plaintiffs derived their interest in this tract of land, what their interests were, or any part of an agreement in writing or otherwise authorizing a partition of the land described, in the complaint. It does not appear from the complaint that plaintiffs paid any part of the purchase price or did any act-entitling them to any part or portion of the land in question. The decision of the court affirmatively shows that there was no-agreement expressed, implied or otherwise, constituting Eichard Buddy a trustee for the plaintiff or any other person. It is a. well-settled principle of law that the plaintiffs must recover upon the contract the agreement relied upon, and the ease must, determine all of the interests of the parties or it cannot be determined at all. This action cannot be determined without a. determination of each and every right involved therein. Should this puiported trust agreement be carried out as contended for by the plaintiffs, as decreed by the court and as affirmatively shown by the records in this case, it would require about fifty acres more of land than there is involved in this action. The court has found the rights and shares to which it claims A. A. Kincaid, one of the defendants, and Walker Richardson, one of the respondents, are entitled to receive, and leaves the remaining shares and interests undetermined. We respectfully submit that a trust cannot arise or any interest be created without an agreement creating such a trust, and if the plaintiff recovers, he must recover on the agreement relied upon. If the evidence is insufficient to determine the rights of all the parties to the alleged agreement, it is insufficient upon which to base a decree, and the action should be dismissed. (Hartshorn v. Smart, 67* Kan. 543, 73 Pac. 73; Chapman v. Allen, 11 Wash. 627, 40 Pae. 219; Pomeroy’s Equity Jurisprudence, 1040.) It is a settled rule of equity that all joint claimants must recover or none can. (Richter v. Noll et al., 128 Ala. 198, 30 South. 740 ; Love et al. v. Butler et al., 129 Ala. 531, 30 South. 735; Lovelace v. Hutchinson, 106 Ala. 417, 17 South. 623.) Upon the question of the insufficiency of the evidence we also invite the court’s attention to section 6009, subdivision 9, Revised Statutes of Idaho of 1887. (McGinness et al. v. Sanfield et al., 6 Idaho, 372, 55 Pac. 1020; Coffin et al. v. Bradbury, 3 Iowa, 770, 95 Am. St. Rep. 37, 35 Pac. 715; Brown on Statute of Erands, secs. 266-269; Leis v. Potter, 68 Kan. 117, 74 Pac. 622.) There was no attempt to show that the property in controversy was described in any writing signed by the parties to be charged, or at all. This description must be proven, if at all, by parol evidence. We have searched the record in vain to find any reference whatever to the description of the land as it exists at the present time, or as it would be when divided, or at any other time. This being true, the plaintiffs have no standing in this court and have not made out a case. (Carig et al. v. Zelian, 137 Cal. 105, 69 Pac. 853.) Appellants strenuously urge that the amended complaint is not good or sufficient. A careful examination of the transcript discloses no demurrers on the paid of any of the defendants, hence if the complaint is insufficient (and we maintain that it is sufficient) that point has been waived. (Deuprey v. Deuprey, 27 Cal. 329, 87 Am. Dee. 81.) In any event the complaint is sufficient and complies fully with the provisions of the statute and decisions. (Bev. Stats. 1887, see. 4561; Knapp on Partition, pp. 102, 150, 152. Forms of complaint set out in Knapp on Partition, pp. 517, 518; also pp. 519-522; Bradley v. Darkness, 26 Cal. 69; Kromer v. Friday, 10 Wash. 621, 39 Pac. 229, 32 L. B. A. 671; Hill v. Young, 7 Wash. 33, 34 Pae. 144.) A complaint in partition is entitled to a most liberal construction by the court entertaining the same. (17 Am. & Eng. Ency. of Law, p. 731, and authorities there cited.) Appellants contend that the trial court erred in denying their motion for a continuance. There was no abuse of discretion by the court in this mling, as the record discloses that all of the defendants or their respective counsel were fully apprised of the date set for trial; that this ease had already been continued over at least four terms of the court either to accommodate defendants or their attorneys from time to time. The affidavits of counsel for defendants in support of said motion for continuance are entirely inadequate, in that they fail to show due diligence on their part, and in fact show an entire lack of diligence in securing the attendance desired. A motion for continuance is always properly denied when lack of diligence is shown, and this statement is borne out by an unbroken line of decisions in every state in the Union. (Kulüand v. Sedgwick, 17 Cal. 123; Leszinsky White, 45 Cal. 278; People v. Jocelin, 29 Cal. 562; Pierson v. Holbrook, 2 Cal. 598; Frank v. Brady, 8 Cal. 47; Gody v. Butter-fiéld, 1 Colo. 377; Kearney Stone Works v. McPherson, 5 Wyo. 178, 38 Pac. 920.) A very liberal rule has been adopted by the courts in suits for partition in granting amendments to the bill of complaint. (Knapp bn Partition, pp. 158, 159; Storch v. McCain, 85 Cal. 304, 24 Pac. 639; 1 Ency. of PI. & Pr., pp. 516, 517; see authorities there cited.) In case of partition the interlocutory judgment must direct a partition, as between those whose share has been determined and the other parties to the action, leaving intact the share, interest or estate of those that are undetermined. And where the shares and interests of two or more parties have been ascertained and determined, the interlocutory judgment may also direct the partition among them of part of the property, proportionate to their aggregate shares; and the court from time to time may determine as to the other rights, shares and interests, and render another and further interlocutory judgment, directing a partition, in like manner, of the undetermined parts and portions of the same property. (Knapp on Partition, p. 211; Idaho Rev. Stats., 1887, sec. 4568; Hayward v. Jztdson, 4 Barb. 228.) Parol evidence is admissible establish a resulting trust, even though the trustee deny under oath; for the statute of frauds exempts such trusts from its provisions. (Krauth v. Thiele, 45 N. J. Eq. 407, 18 Átl. 351; ■Cutler v. Tuttle, 19 N. J. Eq. 558; Hill on Trustees, p. 92; Tunnard v. Littell, 23 N. J. Eq. 264; Midmer v. Midmer, 26 N. J. Eq. 299.) Parol evidence will be admitted to show that a purchase made in the name of one was a joint purchase at the cost of more than one and for the benefit of all, or that the consideration for a purchase was in fact paid by some other person than the one named in the deed of conveyance as grantee. (Powell v. Monson etc. Mfg. Go., 3 Mason (TJ. S.), 347, Fed. Cas. No. 11,357; Smith v. Eckford (Tex. 1891), 18 S. W. 210.) A trust may be proved by circumstantial evidence, by admissions in the pleadings made either explicitly or by implication by the party sought to be charged, or by his admission elsewhere made. (Davis v. Coburn, 128 Mass. 377; Massey v. Massey, 20 Tex. 134; McVay v. McVay, 43 N. J. Eq. 47, 10 Atl. 178; Allen v. Whithrow, 110 IT. S. 119, 3 Sup. Ct. Rep. 517, 28 L. ed. 90; Gibblehouse v. Strong, 3 Rawle (Pa.), 437.)