Opinion
11-14-1889
HENDERSHOT v. LAWRENCE.
T. Simonson, for complainant. T. E. Dennis, for defendant.
Bill for partition.
T. Simonson, for complainant. T. E. Dennis, for defendant.
BIRD, V. C. This bill is filed for partition of a small tract of land. The defendant, Mr. Lawrence, answers, and sets up by way of cross-bill that the land in equity is really his, although the title be in his and Mrs. ML Hendershot's name. Lawrence and J. Hendershot, the husband of Mrs. Hendershot, formed a partnership in the coal and lumber business in the year 1873. In 1874 they sold lumber to G., who used the same in the erection of a house on a lot of land to which he did not have the title, although he had entered into an agreement with Mobie, the owner, therefor; the consideration for the title being $150. G. became embarrassed, and was unable to pay for the lumber, and also for the title. Lawrence and Hendershot, in order to secure themselves, entered into an arrangement with G. and with Mobie, by which they were to pay $650 for the lot, $150 to Mobie for the title, and the balance to G., charging G. first with the amount of the lumber bill, which was $282.10; the balance being paid to G. by the firm's note, payable at bank.
Thus far the transaction was only in the interest and on the behalf of the firm, but now Mrs. Hendershot and her husband both claim that the whole transaction was brought about in the first place to secure the debt due to the firm, and in the next place to secure an undivided one-half interest in the title to the lot in Mrs. Hendershot. Hendershot says he was indebted to his wife for money which she had advanced to him in 1872; and that the undivided one-half interest in this lot was conveyed to her, in order to discharge that indebtedness. Hendershot owned another tract of land, as above stated. This he conveyed to Mobie, at the valuation of $150; and it is alleged that Mrs. Hendershot paid $125 in cash to the firm. If these allegations were clearly established, or if the payment of $125 by Mrs. Hendershot were so established, it would tend strongly to satisfy the mind that she had some interest in the land. but Lawrence denies that the title to the land was taken in the name of Mrs. Hendershot, for any such purpose as is claimed. He insists that the entire transaction was from first to last in the interest, and for the benefit, of the firm, and denies that Mrs. Hendershot is entitled to any credit for the value of the lot which her husband conveyed to Mobie, or for the $125 which she and her husband both insist she paid into the firm. Mrs. Hendershot has the great advantage of having the title to the undivided one-half of this lot in her name. This, I think, would be all prevailing, unless strong circumstances are presented inconsistent therewith. There are some such circumstances. For example, the balance due G. was paid by the firm. Hendershot, with his own hand, gave himself credit on the books of the firm with $150, the valuation put upon the lot which he conveyed to Mobie. The firm retained the possession and control of the lot from October, 1874, until August, 1876, when all of Hendershot's interest in the firm was sold by virtue of an execution upon a judgment against him, and bought by Lawrence. From that time forward, Lawrence agreed to pay Hendershot one-half of the profits of the business, under which arrangement it was carried on until the year 1879, during all which period the possession and control of the lot continued, as before, in the firm. All this time, from 1874 to 1879, all taxes and insurance impositions or liens were paid by the firm, and all rents and profits were collected by the firm, excepting $8 of rent in 1875 or 1876 and $15 in 1878 or 1879, which moneys, I believe, were paid over to her by her husband; and from 1879 until the filing of the bill in this cause Lawrence has had the exclusive possession, and has collected all the rents, and has paid all the burdens incident to insurance and taxation. From first to last, during 12 years, his right to the possession, and to the rents and profits, seems not to have been challenged. That he purchased all of Hendershot's interest at the said sale, under execution, has not been questioned. That all his acts of ownership have been consistent with his claim of title under such purchase have not been disputed, except as hereinafter mentioned. Besides the fact that the title to the undivided one-half is in the name of Mrs. Hendershot, Mrs. Hendershot says that she collected $15 of rent after such sheriff's sale, and that in 1877, after such sheriff's sale, Lawrence made two statements, intending to show the assets and liabilities of the concern, in each of which he placed two other lots or tracts of land, but wholly omitted the one in dispute.
As intimated, the facts that the firm's money paid the balance of the purchase price due to G., and the charge against the firm by Hendershot of the value of his lot, and the control for so long a period of time by the firm, and afterwards by Lawrence, are sufficient,standing alone, to overcome the claim of Mrs. Hendershot. But the question remains, are these facts deprived of that force by the other circumstances in the case adverted to, namely, the collection of two small amounts of rent by the husband, and the omission by Lawrence to name this lot in the list of assets of the firm, and the demand on several occasions of a share of the rent by Hendershot, for his wife? When these facts are considered, in connection with the important one that the title was taken in the name of Mrs. Hendershot, together with Mr. Lawrence, it is difficult to cast off the impression that it was the original intention of the parties to secure to Mrs. Hendershot some interest in the land. I am satisfied, however, that, if it was their intention to secure the undivided one-half to her, the facts as presented do not show that they actually did so. But, since I cannot free my mind, under all the circumstances of the case, from the belief that some interest was actually secured to her, the question is, to what extent did her interest go? She and her husband both swear that she paid into the firm, on account of this transaction, $125; and to this extent I conclude that she is interested. It is true there is no trace of this amount of money anywhere upon the books, and it is true that Mr. Lawrence says he has no recollection of any such payment. The conclusion that Mrs. Hendershot had some such interest is the only possible theory, from the facts of the case as they have been presented, by which the conduct of the parties can be reconciled. This view gives to Mrs. Hendershot five twenty-sixths of the whole. Since the proof shows very clearly that the land cannot be divided without great prejudice, a sale will be ordered. A reference will be made to a master, to ascertain the rents and profits which have come to the hands of Mr. Lawrence from the time of the said purchase, making allowance for all disbursements for repairs, taxes, and insurance.