Tenney v. Simpson

1. Land — Joint Purchase — Accounting and Partition — Lien for Debt. Where a tract of land was purchased jointly by two persons, to be subdivided and sold for profit, and not as a permanent investment, it being agreed that the legal title to the same should be taken in one of the partners, who should execute conveyances for such portions of the real estate as were sold, and the terms of purchase, method of payment, and of the sale and disposition of the land, as well as the respective interest which each was to receive, were also agreed on, and all were embodied in a writing signed by both; and where, after the purchase, and after some sales had been made, and before the enterprise was fully carried out, the^party in whom the legal title was placed refused to further recognize the rights of his partner, or to execute conveyances when sales were made: Held, That the other partner may maintain an action for an accounting, and to determine the interest of each in the land remaining unsold, and to set off to each his respective share thereof; and any judgment rendered for a balance found due on the accounting from one partner may be declared a lien upon the share of land set off to him. 2. Expbess Tbust, Embraced in Several Papers. No particular form of expression is required to create an express trust, nor need all the terms and conditions of the trust be declared in a single writing. They may be embraced in several papers, provided 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 purposes of the trust.

Drror from Wyandotte District Court. This was an action to determine the rights and interest of the parties thereto to certain real estate situated in Wyandotte county, alleged to have been purchased on joint account, and for an accounting between them for the proceeds of the sale of a portion of the real estate, and to set off in severalty to each his respective share of that which remained unsold. The action was begun on January 17, 1884, and on July 6, 1885, the cause was referred to W. T. Johnston, of Paola, for trial, and to determine all issues, both of fact and of law, his report to be filed on the first day of the succeeding term. A trial was had before the referee, and in December, 1885, he made and filed his report as follows, (court and title omitted:) “On the 31st day of January, 1879, Jerome B. Thomas was the owner of the following-described land, situated in the county of Wyandotte, state of Kansas, to wit: the north half of the north half of the northeast quarter of the northwest quarter of section 15, township 11 south, range 25 east. On that day plaintiff S. N. Simpson and defendant William C. Tenney purchased said land from said Jerome B. Thomas through his agents, Armstrong & Moyer, at $250 per acre, aggregating $2,500; payments to be made one-half in cash, and balance in one year or less at option of purchasers, with interest at ten per cent. On that day it was agreed between S. N. Simpson and William C. Tenney that said land should be purchased in the name of William C. Tenney, who paid $100 as part payment thereon, and took a receipt therefor, as follows, to wit: “ ‘,$100. — Wyandotte, Kansas, Jan. 31,1879.— Received of William C. Tenney one hundred dollars as part payment of ten acres of land, viz.: the north half of the north half of the northeast quarter of the northwest quarter of section 15, town 11, range 25, county of Wyandotte, state of Kansas; price $250 per acre. Half cash, balance in one year or less at the option of payor, at 10 per cent, interest. “ ‘ In presence of S. N. Simpson. J. B. Thomas. By Armstrong & Moyer, Agents’ “Afterward, on the 7th day of February, 1879, plaintiff entered into a written contract with said William C. Tenney in reference to said purchase, which is in the following language, to wit: “ ‘Agreement between Wm. C. Tenney and S. N. Simpson, as follows: On January 31, 1879, we purchased ten acres of land of Dr. Jerome B. Thomas, through Armstrong So Moyer, land agents in Wyandotte; Wm. O. Tenney advancing one hundred dollars therefor, and to receive the deed as per conditions of agreement in receipt of that date. The profits from the sale of these ten acres to be divided as follows: Eastern parties furnishing capital are to receive their money back from sales, and in addition, twenty-five hundred dollars from the first eight thousand three hundred and thirty-three and a third dollars profit, Wm. O. Tenney receiving also twenty-five hundred dollars, and S. N. Simpson thirty-three hundred and thirty-three and a third dollars. After that Wm. O. Tenney is to receive three-tenths and S. N. Simpson seven-tenths of the net receipts of the sales of the land till S. N. Simpson shall have received one-half of all the net profits of sales of the land from the beginning of sales up to that date; and after that profits shall be equally divided between Wm. C. Tenney and S. N. Simpson. Representative of the eastern parties furnishing the money shall receive the deed of the land from Wm. C. Tenney, acting for himself and for S. N. Simpson, and continue to hold it until they shall have received back their investment and twenty-five hundred dollar^ as profit in addition, when it shall be deeded back to Wm C. Tenney, or his assigns, for benefit of himself and Simpson, as per above agreement. “ ‘Kansas City, Mo., February 7,1879. Signed in duplicate: Wm. C. Tenney. S. N. Simpson.’ “ ‘State op Kansas, County op Wyandotte, ss. — Be it remembered, that on this 29th day of October, 1883, before me, the undersigned, a notary public in and for the county and state aforesaid, came Wm. O. Tenney, who is personally known to me to be the same person who executed the within instrument of writing, and also came S. N. Simpson, to me well known to be the same person who executed the within instrument of writing, and both of said parties duly acknowledged the execution of the same. “ ‘ In witness whereof, I have hereto set my hand and affixed my official seal, the day and year last above written. [Seal.] Wm. A. Simpson, Notary Public, Wyandotte Go., Kas. (Com. expires 6 | 6 | 85.) ’ “Said contract was duly recorded in the office of the register of deeds of Wyandotte county, Kansas. On the 5th day of February, 1879, said Jerome B. Thomas and Harriett N. R. Thomas, his wife, executed to said Wm. C. Tenney a good and sufficient warranty deed for said land, and said deed was delivered to said Tenney February 11,1879. Afterward said Wm. C. Tenney entered into negotiations with defendant John F. Moors, which resulted in said Tenney receiving from said Moors $2,500 with which to pay the purchase-price of said land, under an agreement that said Moors should have returned to him said purchase-money and $2,500 profits, amounting to $5,000, by the first day of January, 1881, from sales of said land; and if any part of said sum should remain unpaid on the first day of January, 1881, that the same should draw interest at the rate of ten per cent, per annum until paid. To secure the payment of said sum of $5,000, as aforesaid, Wm. C. Tenney and wife executed and delivered to said John F. Moors, on the 15th day of March, 1879, a deed to said land, which was duly recorded by the register of deeds of Wyandotte county, Kansas. “On the 14th day of May, 1879, John F. Moors and Eunice W. Moors, his wife, executed a power of attorney to Wm. C. Tenney, giving him certain powers over said land therein set forth, which was duly recorded in the records of Wyandotte county, Kansas, May 20, 1879. “The following is a copy of said power of attorney, to wit: “ ‘Know all men by these presents, that John F. Moors and Eunice W. Moors, his wife, of Greenfield, Mass., have made, constituted and appointed, and by these presents do make, constitute and appoint William C. Tenney, of Lawrence, Douglas county, Kansas, their true and. lawful attorney, for them and in their name, place and stead, to lease or bargain, sell and convey, on such terms and for such price or prices as he may accept, payable in cash or on credit, or partly in cash and partly on credit, and if on credit or partly in cash and partly on credit, and if on credit in whole or in part, payable at such time or times as he may deem advisable, all or any part or parts of the following-described lands, situate in the county of Wyandotte, in the state of Kansas, to wit: the north half of the north half of the northeast quarter of the northwest quarter of section 15, township 11, range 25 east, containing ten acres, more or less. In case of leasing, said Tenney may execute the proper written lease for and in the names of John E. and Eunice Moors, and in case of sale and conveyance, he may for them and in their names execute, acknowledge and deliver the proper contracts of sale and deeds of conveyance, inserting in the latter full covenants of warranty and the usual covenants contained in conveyances made in Kansas of lands therein; it being expected that said Tenney will from time to time sell and convey parcels of said land and he being hereby empowered to do everything in the premises necessary thereto. Said John E. and Eunice Moors hereby ratify and confirm everything their said attorney may or shall lawfully do by virtue hereof. And whereas, on the 19th day of April, 1879, there was filed in the office of the register of deeds of Wyandotte county, Kansas, a plat of certain lands, including that herein-before particularly described which plat lays off on said land, lots, blocks, streets, alleys and subdivisions; and whereas, said Tenney signed the name of John F. Moors to said plat and acknowledged the same to be his act and deed, and for him filed the same, to be his act and deed: now therefore said John E. Moors hereby ratifies and confirms what said Tenney has so done, and hereby declares that said plat and the signing and acknowledgment and filing thereof as aforesaid shall for all purposes have the same force and effect as if said John E. Moors had in person made, signed, acknowledged and filed the said plat. “ 1 Witness the hands and seals of said John F. Moors and Eunice W. Moors, his wife, this 14th day of May, 1879. John E. Moobs. [Seal.] Eunice W. Moons. [Seal.] ‘“State oe Massachusetts, County oe Ebankbin,ss. — Be it known, that on the 14th day of May, 1879, before the undersigned, a notary public in and for said county and state, came the above-named John E. Moors and Eunice W. Moors, his wife, to the undersigned personally known to be the same persons who executed the above and foregoing instrument as parties thereto, and duly acknowledged the execution of the same, and that it is their act and deed. “‘In testimony whereof, I hereunto set my name and affix my notarial seal, the day and year first above written, at my office in said county. [Seal.] Gobham D. Wibbiams, Notary Public.’ “In harmony with the rights granted to them through the conveyances referred to, the contract of February 7,1879, and the power of attorney from John F. Moors and wife to Tenney, Simpson and Tenney caused said land to be platted into streets, alleys, lots and blocks; Simpson giviug special attention to the platting of the land and sales of property; Tenney executing deeds for property, receiving payment therefor,' and paying expenses, until December, 1883, when he refused to make any further settlement with Simpson, or to permit any further portion of said real estate to be sold. “To understand my method of determining the financial status of relations existing between Tenney, Simpson and Moors, it will be necessary to refer to my conclusions of law as to the relation existing between these parties. Following these conclusions, I find that on the first day of January, 1881, there was due Moors $4,465.91, which was to draw interest at ten per cent, until paid. From that time until March 7, 1883, I charge Tenney with interest at ten per cent, on all proceeds of sales received by him. I allow him the same rate of interest on all expenses paid by him, and I charge Simpson with the same rate of interest on what he received. Mai’ch 7,1883,1 find that Tenney had sufficient proceeds to pay Moors’s claim, which up to that time amounted to $5,382.23, and had a balance in his hands of $27.25. “The total amount of proceeds of sales, including interest, is $11,042.72; total amount of expense, including interest, is $577.68. One-half of the amount to which Moors is entitled, which is $2,691.11, is properly purchase-price with interest, the other half is profits with interest. If we add to the purchase-price and interest the expense and interest, and deduct the same from proceeds of sales and interest, the balance, $7,773.93, will be the net profits. One-half of this,.$3,886.96, belongs to Simpson. Moors is entitled to $2,691.11 profits, which being deducted from the other half of the profits leaves $1,195.85, which is Tenney’s portion of the profits. Simpson has received, including interest charged to him and notes from Mead & Hedman made to Moors, $3,829.65, which is $57.31 less than his share of profits. “After paying expenses with interest, Moors’s claim and .amount, and what Simpson has received, Tenney has in his hands $1,253.16, which is $57.31 more than his portion of said profits. From these facts the conclusion is that Wm. C. Tenney is indebted to S. N. Simpson, the plaintiff, in the sum of $57.31.” “conclusions op law. “ 1. That all evidence offered and heard under objection on the trial of this action as to fraud on the part of Simpson is inadmissible under the issues as joined herein, and all objections to the same are hereby sustained. “2. That under the deed of said real estate from Thomas and wife to Tenney, Tenney received the title of the same in trust for the benefit of himself and Simpson, and that the same is an express trust as shown by written agreement of February 7, 1879. “3. That the deed from Tenney and wife to Moors operates as a mortgage to him to secure to him the payment of $5,000 with interest as agreed upon. “4. That under the power of attorney from Moors and wife to Tenney, all proceeds of sales of said lands received by Tenney, and not paid out by him for expense, as to Simpson should be treated as if paid to Moors. “5. That the sum of $2,500, which Moors was to receive as profit on the investment of $2,500 purchase-price, is not usurious interest, but is a profit to which he is entitled by reason of success of the enterprise. “ 6. That Moors should receive interest at ten per cent, until paid on all that portion of said $5,000 not paid by January 1, 1881. “ 7. That one-half of all said premises remaining unsold belongs to S. N. Simpson, and the other half belongs to W. C. Tenney, and the same should be set off to them in severalty. “8. That defendant, John F. Moors, should be required to-enter satisfaction upon the records of note of Susan Mead, dated October 10,1883, for $600, bearing interest at eight percent., and of note of E. Hedman and Ella Hedman for $375, of same date and bearing same interest, upon payment of same to S. N. Simpson, said notes being payable to said Moors, and the same being in the possession of said S. N. Simpson, and being charged to him as cash, in determining amount paid to him by Tenney. “9. That said John F. Moors should reconvey all his right, title and interest in and to said real estate to said W. C. Tenney. “10. That W. C. Tenney is indebted to S. N. Simpson in the sum of $57.31. December 19, 1885. W. T. Johnston, Referee.” The referee further made and filed, at the request of defendants (plaintiffs in error) answers to special questions of fact therein as follows, (court and title omitted:) “1. Do the facts, as shown by the evidence in this cause, show or establish a ‘resulting trust’ in favor of the plaintiff ? No. “2. If no ‘resulting trust’ is established in favor of the plaintiff by the evidence, then is there any ‘express trust’ so established in his behalf ? Yes. “3. If the evidence shows the fact that an ‘express trust’ was created in favor of the plaintiff, then was such created by parol agreement, or in writing ? And if such written agreement created such 'express trust/ what is the date of such agreement, or if more than one such, then what are the dates of such agreements and by whom were they signed ? Express trust created in writing, dated February 7, 1879. “4. If any one or more of the defendants signed any written agreement or agreements creating any 'express trust’ in favor of the plaintiff, had such person at the time of so signing such written agreement the legal title to the land in question ? And if he did not own the legal title, but owned the equitable title, what act or agreement created such equitable title in him who so signed such written agreement creating such 'express trust?’ “The legal title to said real estate was executed to ¥m. C. Tenney Feb. 5th, 1879, and delivered to him Feb. 11th, 1879. “ 5. If an ‘express trust’ was created in favor of the plaintiff by any one of the defendants, which defendant? If all the defendants created such ' express trust/ then give the dates of the different written instruments so creating such ' express trust/ and by whom signed ? “Express trust created by Wm. C. Tenney; date of instrument creating the same, Feb. 7th, 1879. “ 6. If any 'express trust’ was created in favor of the plaintiff, do you rely solely in your finding upon a written instrument so creating such ‘ express trust/ or do you rely partly upon parol evidence to establish the same ? If upon a written instrument solely, then the date of the same, and by whom signed ? “I rely on written instrument above referred to. “7. If you find that an ‘express trust’ exists in favor of the plaintiff, and that the same so exists from a written instrument, did such written instrument create such trust, or is such trust only shown, evidenced or manifested by such written instrument and the date of it and by whom signed ? “ The written instrument heretofore referred to created said trust. “8. Did Simpson, the plaintiff, in agreeing to have the title to the property taken in the name of the defendants, Tenney or Moors, intend to hinder, delay or defraud his creditors thereby, and if either to hinder, delay or defraud, which; and if said Simpson did not so intend, then did such act, in so taking said title in the name of any defendant, result or is it liable to result in hindering, delaying or defrauding such creditors ? No. “ 9. Do you hold that, under the issue in this cause as made by the petition and answer, it is competent to show that the plaintiff intended to defraud, hinder or delay his creditors, in agreeing to have the title to the land in question taken in the name of either of the defendants, Tenney or Moors ? No. “10. Do you find that if such intent appears by the evidence heard (no matter whether material to the issues so made, or not) that you can find in favor of a specific performance asked by the plaintiff ? “ I find that no such intent appears, and make no finding as to what I would do if such intent did appear.” At the December Term, 1885, motions were made to confirm as well as to set aside the report, and grant a new trial; but the court overruled the motion to set aside the report and grant a new trial, and sustained the motion to confirm the report. Judgment was given in accordance with the findings and report of the referee, in which it was decreed that the deed executed and delivered by William C. Tenney and wife to John F. Moors was intended and should be treated as a mortgage, and that, as the debt which was thereby secured to Moors has been fully paid, Moors and wife should reconvey the real estate to William C. Tenney. It was further adjudged and decreed, that S. N. Simpson is the owner of the undivided one-half of the real estate remaining unsold, and that the same should be partitioned and set off in severalty to him, free and clear of any interest of the other parties; and in addition, that there should be set off to him a portion of the value of $57.31, the amount fouud due by the referee from William C. Tenney to S. N. Simpson of the proceeds of the real estate sold. Provision was made in the decree for the appointment of commissioners to partition and set off to the parties their respective interests in the real estate. The defendants excepted to the foregoing rulings and judgment, and bring the case to this court for review.