Warfield v. Banks , 11 G. & J. 98 ( 1839 )

Archer J.,

at this term delivered the opinion of the court.

The amended bill filed in this case, calls for a disclosure by Basil Banks, of the right, interest or estate, he claims in the lands sought by the bill to be divided or sold, and the grounds or title on which his claim is rested. We consider the answer of jBasil Banks as responsive to this enquiry in the bill, and as evidence in this cause. It refers to the answer of Samuel Banks, and adopts that answer. We have then a right to refer to both answers, for the purpose of obtaining the disclosure called for in the amended bill. He declares that he has been always equally and jointly interested with Samuel and Allen Banks, in the purchase of the lands mentioned in the bill. That he, Samuel and Allen Banks purchased the lands sought to be divided, of J. T. Chase; that at the time of the purchase, they were partners in trade; that the purchase was made for the sum of $4000, and to show the purchase, refers to the bond of conveyance, which is filed as an exhibit. He further says, that the said partners continued to work together as such, until the year 1812, and continued jointly to make payments on account of the purchase out of their joint funds, and by the sale of parts of the land. The title and ground of it, he discloses to be in the contract, which although in the name of Samuel and Allen Banks, is declared to be a purchase, in which all were interested; and that so much of the purchase money as was paid anterior to the year 1812, was paid by the concern, in wdiich they were jointly interested; and by the sale of portions of the land. The facts abundantly prove, independent of the answer, that acts of ownership over the land were exercised by Basil, as well as the brothers, by the sale of rails: and it is established by proof, (which we must receive, not being excepted to under the act of Assembly,) that they were so far considered as jointly interested in the lands, that 238 acres of the original purchase, was considered as the part of the tract which Basil Banks was to have. It is further proved by several witnesses, that Basil Banks was to have one-third of the land when it was paid for. The payments which were made anterior to 1812, would seem to have been made, from the profits of the blacksmith shop, carriedym by Allen; and although there is no direct evidence to show, that Basil had an interest in this concern, by the proof of witnesses, except that an account against Basil, was allowed to be set off by an account of the firm against the witness, to whom Basil was indebted; yet the answer expressly declares, that payments were made from the concern of which Basil was a member; and it could have been made from no other concern than this, for the only business in which they were engaged, that yielded any profits, was the blacksmith business. The land by its cultivation produced none. Payments too were made by the sales of upwards of three hundred acres of land, which we are bound to believe was consented to by all, and especially by Basil, who allowed the part which he was to have, to be sold for payment of the purchase money. It was accordingly sold, and the money applied to the payment of the liability incurred by the bond of conveyance. We perceive nothing'in the proof or the circumstances of the case, sufficient in our view to contradict the answer. We therefore think, that Basil Banks was entitled to his due proportion of the amount of sales, and that in this respect the Chancellor did not err.

It is urged against the decree, that Samuel Banks has been allowed the sum of $671, paid at different times by him, with interest thereon, from the dates of payment. The receipts exhibited, with the proceedings, and proved in the cause, evidence the payment of this sum by Samuel Banks individually; at least, they furnish a prima facie case of payment by him individually, and not by him in his partnership character. If the payment out of the partnership funds were insisted upon, the onus was thrown on the party so insisting, to adduce evidence of that fact, which is not furnished by the record; we must therefore, in this state of the proof, consider the payments as made by Samuel Banks, and not by Samuel Banks and Allen Banks, or by Samuel, Allen and Basil Banks.

The next question which has been raised is, that Samuel Banks was not entitled to be paid out of the proceeds of sale, for payments made by him, over and above his proper proportion of the purchase money; and it is said, that before he could have any pretensions to this claim, he must exhaust his legal remedies against Allen Banks. Without meaning to intimate an opinion, how far a vendor could enforce his equitable lien against the vendee, without showing thnt he had exhausted his legal remedies, we must remark, that this case in our opinion, would stand on different principles. This is not the case of a vendor, going into equity against the vendee, to enforce his lien; but the complainant goes into equity to obtain a partition or sale, and if the latter, a distribution of the sale among the tenants in common, entitled thereto. He is seeking the aid of a court of equity, and should be coerced to do equity. If would be inequitable to allow him to take that proportion of the fund not procured by his means, but furnished with the means of the defendant, and which he was guilty of a violation of contract is not furnishing. It is said the claim here to a lien is in the nature of a vendor’s lien; and that it must be claimed by subrogation to the rights of J. T. Chase; and that he could possess no other rights than those of the person to whom he was substituted. Admit this, and still the conclusion would not follow, which is attempted tobe deduced from it. Suppose the complainant sought a conveyance of the legal title, as well as a division, and for this purpose had made J. T. Chase, or his heirs, parties, would the Chancellor have compelled J. T. Chase or his heirs, to have conveyed, until the purchase money was paid? certainly not. Samuel Banks therefore, taking the place of J. T. Chase or his heirs, cannot be in a worse situation than he, or they would be, and as they would be entitled to the money, so ought Samuel Banks. We conceive there is no'error in the Chancellor’s decree, and affirm the same with costs, decree affirmed.