Allen v. Allen, 50 Utah 104

decreed to be the owner of the thirteen-acre tract and of the 160 acres, and for damages for detention by plaintiff of the thirteen-acre tract.

The reply of the plaintiff admits the partnership dissolution of 1898, the formation of a new partnership between plaintiff and defendant and its dissolution in 1906, but puts in issue the award of the twelve-acre and three-acre tracts to defendant in 1898, and denies any agreement to exchange lands with defendant; alleges possession by plaintiff and defendant, as joint owners, of the twelve-acre and three-acre tracts and the Brawley field comprising fifty-nine acres, particularly describing it, during the existence of the partnership between plaintiff and defendant, and further alleges that he is now the owner in fee simple of the Brawley field and entitled to have his title quieted thereto; denies the abandonment or rescission by him of the agreement to purchase the 160 acres, and alleges his willingness to pay his pro rata share of the purchase price thereof.

By a supplemental complaint filed just before the trial plaintiff seeks to recover damages for the retention of the 160 acres by defendant from the time of the filing of the complaint to the trial of the action.

A trial was had before the court, and findings of fact, conclusions of law and judgment entered, finding all the issues in favor of plaintiff. From those findings and judgment defendant brings the case to this court on appeal.

Some twenty-nine assignments of error are made attacking the different findings of the court, but in appellant's brief the numerous assignments are argued under two general heads, namely: (1) The findings are against the evidence; and (2) that the conclusions of law and judgment do not follow from and are not supported by the findings.

The following map or plat will aid in understanding this opinion as well as explain the claims of the parties hereto:

It was agreed by both parties to this action, and also by their brother J. C. Allen in his testimony, that in the partition or dissolution of the copartnership, which consisted of the three brothers, prior to 1898, the thirteen-acre tract of land described in plaintiff's complaint, title to which he asks to have quieted in him, was, by that allotment or partition, awarded to plaintiff; that at the time and up till the trial of this action the record title to that tract stood in the name of the defendant. Respondent's testimony is clear that in that same partition the twelve-acre and three-acre tracts were also awarded and given to him. On that particular point the testimony of appellant and of James C. Allen, one of the original partners, is that at that time the twelve-acre and three-acre tracts were partitioned to appellant, and that the record title at that particular date was in the name of one Thomas Horne. It is admitted that immediately after the dissolution of the partnership, consisting of the three brothers, in 1898, another partnership was formed between the plaintiff and defendant to carry on and continue business of the same nature as the former partnership, and that that partnership continued until about the year 1906, when it was dissolved by mutual consent.

Plaintiff contends, and the court found, that all the real estate which had been partitioned or given to both plaintiff

Allen v. Allen, 50 Utah 104

and defendant in the dissolution of the former partnership became the partnership property and made up a part of the assets of the new partnership. That finding is attacked by appellant, and it is insisted that such a finding is not only not supported by the evidence, but is contrary to the weight of the evidence. If it were necessary to sustain the court's judgment that that finding be supported by the evidence, then the case would, in my judgment, have to be reversed, but in view of the lower court's findings on other issues, and in our view of the matter, that finding becomes immaterial.

At the time of the dissolution of the partnership it is agreed by both plaintiff and defendant that the thirteen-acre tract, marked (20) on the plat, as well as the thirty-acre tract, marked (16) on the plat, and the fifty-two-acre tract, marked (10) on the plat, and the fifteen-acre tract, marked (4) on the plat, were all a part of one inclosure, and had been jointly used and cultivated by the partnership from 1898 up until the date of its dissolution. The plaintiff testified that at the time of the partition and dissolution of the partnership between him and defendant a line was drawn dividing the property, which line was a division line running east and west immediately north of the twelve-acre tract, marked (7) on the plat, the thirty-acre tract, marked (16) on the plat, and the thirteen-acre tract, marked (20) on the plat, and that he gave defendant the right to take either the part of the land lying north or the part of the land lying south of that line and west of the county road. He testified that the defendant first selected the land lying south, which would include the thirteen-acre, the thirty-acre, and the twelveacre tracts, and that plaintiff immediately took possession of the land lying north of the division line; that within a few days thereafter appellant returned to respondent and stated that he was not satisfied with the division, and thereupon plaintiff gave him the option to exchange, if he so desired, and the exchange was made; and the plaintiff then took possession of the land lying south of the line drawn by plaintiff, and he has continued in possession of the same up until the institution of this action, and that at the same time appel

Appeal from Cache County, First District

lant took possession of the land lying north of the division line, namely, the fifty-two-acre tract and the fifteen-acre tract, and has continued in possession of those lands ever since.

It is contended by plaintiff, and the court so found, that from the year 1898 to the year 1906, the taxes on all of the land referred to herein, and other land similarly occupied by the partners, were paid from the general or partnership fund, and that the land was cultivated jointly and the harvests sold and the proceeds used by the partnership in carrying on the partnership business; that since 1906 plaintiff has paid all taxes assessed against, and been in the open possession of, the lands partitioned to him, or all of the lands lying south of the division line, and that during all that time defendant had been in possession of the land lying north of the division line, and has paid all taxes assessed against that land; that at no time did appellant make any claim to the thirteenacre tract, and that the plaintiff had no knowledge or information that the title to that tract was in appellant until about the year 1910 or 1911, at which time he approached the defendant and asked for a conveyance, and his testimony is that the defendant promised to make a conveyance, but failed to do so, and thereafter, in 1912, for the first time, made claim to this land and attempted to eject plaintiff and his workmen therefrom, and that this suit was immediately started thereafter. It is also disclosed that these parties owned other lands located in Cache County, Utah, as well as in the state of Idaho, which they cultivated and farmed during the continuance of the partnership, and that during the continuance of the partnership a sixty-acre tract located in Cache County, the legal title to which was in the name of plaintiff, was sold and the proceeds immediately deposited to the credit of the partnership, and was invested in sheep which belonged to the partnership, and both plaintiff and defendant participated in the profits of the sheep purchased with that money.

The defendant maintains, as alleged in his answer and counterclaim, that under the original partition among the three brothers the twelve-acre and three-acre tracts were given to him, and that thereafter, in about the year 1899, an oral

Allen v. Allen, 50 Utah 104

arrangement was made between the appellant and respondent by which the appellant agreed to give to the respondent the twelve-acre and three-acre tracts in exchange for the thirteenacre tract, or a fifteen-acre tract belonging to plaintiff located about two miles from this property in what is known as the Brawley farm, and that in consideration of that agreement of exchange a deed, which he held for the twelve-acre and three-acre tracts, and which had not been recorded, and which had been executed by the original owner, one Thomas Horne, was given the plaintiff, and he in turn took the deed back to the original grantor, Thomas Horne, and that deed was destroyed and a new one executed conveying title to the twelveacre and three-acre tracts to the plaintiff. That agreement was denied by the plaintiff, and the court found that no such agreement was ever made, and that the twelve-acre and three-acre tracts were a part of the original award made to the plaintiff by the partition of the land in 1898. Plaintiff also insists that if any such an agreement as alleged in the counterclaim was entered into, it was within the statute of frauds, and therefore void. As the court found no such an agreement was ever made, the question as to whether it was void under the statute of frauds becomes immaterial.

There is a sharp conflict between the testimony of the plaintiff and the defendant, and there is testimony from other witnesses which corroborates both the testimony of the plaintiff and defendant, but from an examination of the entire record it satisfactorily appears that the findings of the court are supported by a fair preponderance of the evidence, and, under the oft-repeated and recognized rule of this court, should not be disturbed.

1

Appellant contends that, even though the findings are supported by the testimony, the conclusions of law of the court are contrary to the findings as made. He insists that if it appears in this case that the property here in question is partnership property, an action affecting only a part of that property cannot be maintained, and that the plaintiff's remedy would be to ask for an accounting and the closing up of the entire partnership affairs before any relief can be