, J3ROw'll:R tI. BROWER.
transactions considered. The report is confirmed, save in, the matters hereinbefore set forth. ' Let all creditors who have made proof of their claims be made partheir distributive shares of the fund, in accordance ties, and with the,rnling hereinbefore:ll1ade; let the calcu\ations berevieed accordingly; let the costs be withdrawn from the fund in hand before the distribution is made; and the decree is so ordered.
NOTE. SALE-FRAUD. A sale procured by fraud or misrepresentation maybe avoided by the seller, and the l)roperty retaken by him as his own. Sleeper v. Davis, (N. H.) 6 At!. Rep, 201; Ensign v. Hoffield. (Pa.) 4 At1. Rep. 189; Neff v. Landis, (Pa.) 1 Atl. Rep. 177; Hanchett v. KiDibark, (Ill.) 7 N: E. Rep. 491;. S. C. 2 N. E. Rep. 512; Doane v. (Ill.) 4 N. E. Rep. 500; GoodWill v. WertheImer, (N. Y.) 1 N. E. Rep. 404; Bussmgerv. Bank of Watertown, (Wis.)30N. W.Rep. 290; Leev.Simmons. (Wis.) 27N. W. Rep. 174; Carl v. McGonigal, (Mich.) 25 N. W. Rep. 516; Oswego Starch Factory v. Lendrum, (Iowa,) 10 N. W. Rep. 900; Amer v. Hightower, (Ca1.) 11 Pac. Rep. 697; Taylor v. Mississippi Mills. (Ark.) 1 S. W. Rep. 283; unless it was subseqllently sold by the fraudulent vendee to orie who purchased in good faith. and for a valuable consideration, Sleeper v. Davis; (N. H.)'6 Atl. Rep. 201; Neffv. Landis, (Pa.) 1 At1. Rep. 177; Hanchett v. Kimbark, (Ill.) 7N.E.Rep. 491; S. O. 2N.E. Rep. 512; Goodwin v. Wertheimerh(N. Y.) 1 N., E. Rep. 404; ,Perkins v. Anderson, (Iowa,) 21 N. W. Rep. 696; Oswego Stare Factory v Lendrum, (Iowa,) 10 N. W. Rep. 900. It maybe retaken from the poasession of an officer who holds, it nnder an attachment orexecjltion against the fraud,ulent purchaser, Ensign v. Hoffield. (Pa.) 4At1. Rep. 189; Oswego Starch Factoryv. Lendrum, (Iowa,) 10 N.W.Rep. 900; Taylorv.Miasissippi Mills,' (Ark.) 1 S. W. Rep. 283. The assignee for benefit of creditors is not a bona jiae purchaser for value. and takes no better title than his assignor, the fraudulent vendee. Goodwin v. Wertheimer, (N. Y.) 1 N. E. Rep. 404; Lee v.Simmons, (Wis.) 27 N. W. Rep. 174. The purchase of goods with the intention of not paying for them is a fraud which will justify the avoidance of the sale, Sleeper v. D!l'vis, (N.H.) 6 At1. Rep. 201 ; Farwell v.lIanchett, (B1.) 9N. E.Rep. 58; Hanchettv. Kimbark, (111.) 7 N.E.Rep.491; S.C. 2 v. Simmons, (Wis.) 27 N. W. Rep. 174 ; Carl v. McGonigal. (Mich.) N. E. Rep. 25 N. W.Rep. 516; Oswego Starch Factory v. Lendrum, (Iowa,) 10 N. W.Rep.900; Taylor v; Mississippi MillsJ (Ark.) 1 S. W. Rep. 283. So are misrepresentations as to solvency, and the' .concealment of insolvency, Ensign v. Hoffield, (Pa.) 4 At!. Rep. 189; Hanchett v. Kimbark, (Ill.) 7 N. E. Rep.491; Lee v.Simmons, (Wis.) 27N. W. Rep. 174; Oswego Sta.rchFactoryv.Lendrum, (Iowa,) 10 N. W. Rep. 900. But the mere fact of the purcliaser's' insolvency does n!)t render the purchase fraudnlent, unless it was made with no intention or expectation of nl\Ying for them, Dalton v. Thurston, (R.I.) 7 Atl. Rep.112; Mack v.Adler, (Ark.) 2 S. W. Rep. 345.
«(Jircuit COWl't, D. Minneaota. January 8,1887.)
EQUITY-:--AooOUNTING-AnVANCEB ON SBCUlUTY OF IIumVOCABLE POWER OF ATTORNEY. .
In an action for an accounting wherein the a partne!ship, it appearing that there was no partnership, but that complamant, after taking from defendant an irrevocable power of attorney, authorizing complainant to take possession of the lands then owned, or which might thereafter be owned, by defendant, advanced the money to be put into real estate and a newspaper,on the security thereof, the court directed that thedefendantbe adjudged the owner of the rea.l estate and newspaper, that complainant have an equitable lien on the property for his advances, with and that the prop· erty be sold to satisfy the same.
J. V. Brower and D. Kerr, for complainant. D.E,. Searle, for defen!ltl-pt·
.. ' BREWER,J. This is a family; quarrel, and, as such, bitter and un. pleasapt.. ,It is, brother against brother, other members of the family siding with each. The complainant alleges a partnership, and claims an accounting.. The defendant denies partnership. The transactions between the brothers, as developed in the pleadings and by the testi. mony, extend from the years 1871 or 1872 to 1885, a period of 13 or 14 years. The property in co.ntroversy, as alleged in the bill, is-Jiirst, the Ilewspaperpublished at Saqk Centre, known as the Sauk CeJ;ltre Tribune; second, two pieces of real estate in Sauk Centre, one occupied by defendant as his ,and, third, several tracts of land outside of Sauk Centre. With regard to the third class of properties, the defendant in his answer.admitsthat he has no claim,and, in pursuance of the direction of this court at the hearing, deedstberefor have been e:xecuted by the defendant and his wife, and delivered to complainant. This should have been done by tbe defendant of his .own motion, and before any suit. The badly in withholding this property, to w.bic.h he had no pretense or Claim, and in attempting to compel thereby the. complainant to abandon all other claims. I now proceed to outline briefly the history of the relations between these brothers, and the claims of the complainant. Tbe complainant is tbe elder brother. In 1871 or, 1872 the defendant, then about 20 years of age, wasaffiicted with a severe sickness, from which he recovered, but with the entire loss of his hearing. From that day to tbis he has been totally deaf. He had ha.d comparatively little early education, and was wholly unfit for business. His sickness occurred while he was at his father's house., .After his sicknesshe,went with complainant to St. Paul to, ·about the possibility of a cure for his de-afness. The visit: :wasinefl'ectual. He returned home, and worked about his father's place for two or three years. Then he attended the Institution for the deaf, at Faribault, where he learned the art of printing. After this he worked in a printing-office for a short time, and in 1879 the complainant purchased the Todd County Argus, and placed the defend. ant in charge. In October, 1880, the defendant became dissatisfied, and the Argus was sold; the complainant receiving the entire proceeds of the sale. Later in the fall of that year the Stearns County Tribune was established, the complainant advancing all or nearly all the money therefor. This is the paper whose name afterwards changed to the Sauk Centre Tribune, is the first property above mentioned in which the complainant c1aimsa half interest as partner. On October 81,1876, defendantexecutea to complainant an irrevocable power of attorney. Complainant testifies that at this time a settlement wasnad between the brothers; that $231 was then found due from defendant to him i and that, in satisfaction and payment of this amount, as expressed in the instrument itself, this power of attorney was executed.
BROWER V. BROWER.
The power of attorney authorizes the complainant to take possession of all lands then owned,'or which tnight thereafter be owned, by defendant, or in which he might have any interest,' as defendant should enter under the homestead laws of the United States, to sell or dispose of the same in any way complainant tnight see fit, and appropriate the entire proceeds to his own use. About this time, as complainant testifies, he was having some trouble with his wife; and, being some-' what engaged in the real estate business, desired to have some one in whose name he could place title to his real estate,and carry on business. If this was the entire scope and purpose of this' instrument, and if he was simply releasing to his brother this moderate claim in payment/'for the use of his name in his own business, the transaction was perfeotlylegitimate. The consideration, though small, was, as between brothers',n6t· unreasonable compensation for valuable assistance. Such, I think, from all the circumstances, was at the time the intent of the parties, and the transaction one which might fairly be entered into between brothers, each prompted by fraternal' confidence and affection. If there Was also the thought on the part ofthe elder brother, a man of business ,capacity and experience in the affairs of life, that it would also operate temperarily to protect his' younger brother, grievously afflicted, ignorant of' business, and liable to be imposed upon, there would be nothing in the transaction to criticise or condemn; but if the inten.t of the complainant was to prevent his brother from ever becoming a free man as to the purchase, holding,and sale of real estate, if he thought by this to hold his brother forever· within his grasp; and to debar him forever from investing his own earnings in real estate, for his 0'WD benefit, and subject to his own control, as, smarting under the bitterness of this present controversy, complainant now seems to claim,-the transaction . is one which all honorable men must condemn, and the contract one which, in iteentirety, no court of equity would ever enforce. It would besuehan alienation of personal rights as, attempted to be accomplished between brothers situated as these were, would find its most fitting historic parallel in the ancient record of a brother's sale of his birthright for a mess of pottage. So far as the contract evidenced by this power of attorney is made the basis of complainant's claim to the real estate in SaukCentre, it must be rejected, and the rights of the parties to those tracts determined by the facts as to their purchase. With respect to these tracts, it appears that they were selected by defendant, ll.nd that he intended to purchase them for his own benefit; and also that the complainant assisted in obtaining the title, advancing money therefor. It may well be that the complainant relied upon the power bfattorney as turnishing him abundant security on this real estate for ltll:moneysadvanced, and I think he is entitiled benefit of that contract, as giving him an equitable lien. This power of attorney having been of record, no one could acquire title to or lien upon these trads without notice of complainant's rights; so that, to the extent of his interest therein, he is enti a first lien. In October, 1880, the Argus property was sold for $2,500, all of
which wa,s paid to the complainant, he at the time ,taking the notes and security given for the amount. Complainant testifies that this was a. second settlement, and thatthi,s purchase price was, received by him as 11 full settlement of all claims, against his brother. up, to that time. I think. the testimony c!llim,and that all inquiry as to the accounting the. be limited to the period subse. quentJothat ,time. , ;,; With rE\ferenceto the Sapk Tribune, it is undjsputed that in its establishment, .andfor benefit,complainant has advanced considerable money, H.is claim"howeverj,that the property has been and still is partnership property cannot, Ithil1k, be sustained. Putting one side, as irreconcilable,. the testimony 9f the two parties, I think the weight of tbe other testhnony is that the complainant advanced this hia.brother in business, with the understanding that the property was to be the property of the defendant, and that he was to: be reimbursed the moneys advanced by him. As clearly pointing to this, niay.be noted the pill of sale complainant to defendant, tbe him, and pub1iiShed in the paper,_ the general management of the property by defeJ;ldant during· these years,f1nd the admissions .of complaillant to his mother. It is true there are writing$ ,pf the defendant, and other testimony; cleady recog. nizing the fact that complainant .had some interest in the property, but nearly all are consistel}t the idea of an interes.t by advancement of money, and do not assert an interest as a partner or a joint owner. It is opvious to .:r;ny mind, however, from all the testimony, that both parties regarded. the held by defendant as security to the complainant for the amount of his advances, and.it would be simple justice to,decree the complainant entitled to an equitable lien for what. ever balance may be due him, on While the bill proceeds.v.PQn the theory of a partnership, and prays an accounting, yet the 'aIJegations are broad enough to justify tlJe court in, ordering an accounting, and ,decreeing a lien. This decree therefore will be entered: . Fir8t. adjudging the defendant the owner of the tracts of ground in Sauk Centre, and of the Sank Centre Tribune; 8econd, adjudging the complainant entitled to a lien upon the twp tracts of ground in Sauk Centre, separately, for the moneys advanced by him, less amounts received therefrom, with legal interest to date; third, adjudging that complainant has a lien upon the Sauk Centre Tribune property in like wanner, for moneys advanced by him for the purchase or benefit of that property, less amounts so received therefrom, with interest to date; fO'l.'rth, ordering the sale of these several properties for the balances which shall be found due; fifth, referring this matter to Mr. Shipman, master chancery, to examine the testimony, and report the state of these ao. counts; Bixth, continuing all orders of injunction until the final dispositj,Qn of this case. In making this accounting the master will consider all accounts and transactions between the parties closed and settled up to November 1, 1880, and will make 110 inquiry as to matters antecedent to that time. ,As
HATHAWAY V.:EAST TENNESSEE, V. &: G. R. R.
, ' C"
the parties, he win. s'tate the account as to each tract of lim'd, and as to the newspaper properly, separately, and,' if there be transactions between the parties outside of these matters, he will state an account between the parties as to them for the assistance of the court inm'akinga final disliosition of the case.
to subsequent dealings
I agree to the decree ordered.
V. & G. 'R. R.
«(Mcuit Court, S. D. Georgia, lV, D. October. 1886.)
: Action. on theca,se against a. railroad company for damages. tion for direction ·of verdict. . Lyon ct for plaintiff. Ba can' ct Rutherford, for defendant.
, SPEER, J. '; The questi?n whether or not negligence existed is erallya questlOn for the Jury. It has been held that the case should j1.tty (1) .when the factswhich,)f true, would con. alwllysgo to stitute evidence of negligence, are controverted; (2) where such faets