King v. Weeks

Settle, J. This was an action to recover the possession of two lots in the town of Murphy, Cherokee county. It appears that one Brabson liad executed a deed, conveying these lots to the defendant, Weeks, in trust, to secure the payment of certain, debts due to the firm of Thomas &Ning,- which firm was composed of J. H. King, the plaintiff’s ancestor, and W. II. Thomas, the other defendant. J. W. King died in 1845, intestate, leaving the plaintiffs his heirs-at-law. It further appears, that in 1841, Weeks, the trustee sold the lots in pursuance of the deed in trust, and J. W. King, one of the partners, bid them off and took the title in his own name from the trustee; he did not pay any money or other consideration for the same, bnt allowed the bid to be credited as part payment on the debts due the firm, which were secured by the deed: the amount bid was less than the amount so- secured. The partnership affairs of Thomas & King bad never been settled in the life time of King-. His Honor charged the jury that where a partner in a firm purchased- real estate with the partnership effects, and took the deed to himself, the presumption of law is that the partner so purchasing-credits his ©o-partner with his part of the amount bid or paid for the property, and: charges himself with it, and is entitled to the property in bis own individual right. This charge cannot be sustained. On the contrary, the rule is, where land has been purchased with partnership funds, although it be conveyed to. o>ne partner only, yet it becomes partnership property. “ A purchase by a man in his own name, with funds in bis hands in a fiduciary capacity, creates a resulting trust in favor of those whose money is thus employed? as in case of a trustee, a partner, an agent for purchase, an executor, a guardian, the377 committee of a lunatic, and the like.” Adams’ Eq., and notes and references to American decisions, p. 33. There must be a venire de novo. Per Curiam. Venire de novo.