Burgess v. Rice

Paterson, J. Ejectment. The property in controversy is described as the east one half of section 16, township 3 south, range 6 east, H. B. and M. The plaintiff, while in the occupation of the lands, on October 15, 1875, filed an application to purchase from the state. In accordance with his application, proof, and payment, a patent was issued to him for the lands in his own name, August 28, 1885. In his answer the defendant denied that the plaintiff was the sole owner of the property; and in his cross-complaint alleged that the land described in the complaint is a part of a tract of land known as the Poison Camp range; that J. C. French, Enos Peabody, and plaintiff, prior to .the commencement of this action, formed a partnership for the purpose of raising stock; that these parties built houses, barns, corrals, etc., upon said range, with partnership funds; that afterwards Peabody sold his interest to Burgess and French, and on the 26th of February, 1883, French sold his interest in the range to defendant; that the defendant entered into possession under his deed from French; that there has never been an accounting of the improvements placed upon said range by any of the partners. Defendant, therefore, asked for a decree adjudging that he is the owner of an undivided half-interest in the lands described in the complaint, and that the land be divided between plaintiff and defendant in such manner as may be equitable and just.

It is difficult to perceive upon what theory defendant seeks the equitable relief prayed for, or in what respect the facts stated constitute a defense in an action of ejectment. The ranch referred to was a portion of the public domain of the United States until the land in controversy was patented to the plaintiff. Conceding that there was a partnership, as alleged by the defendant, and that houses, barns, and corrals were built upon said range with partnership funds and for partnership purposes, and that no accounting has been had, these facts [592]of themselves would not make the plaintiff a trustee with respect to the title acquired from the state. The facts stated in the cross-complaint, if true, may be sufficient to entitle the defendant to an accounting from the plaintiff concerning the partnership funds, stock, and improvements, but can in no way affect the title of the plaintiff to the real estate in controversy.

However this may be, it is sufficient to say that the findings of the court are in favor of the plaintiff upon every material allegation, and that the evidence is ample in support thereof. The evidence shows that the plaintiff filed upon the land in his own name, and paid for the same with his individual funds; that it was the understanding of all the partners that each should secure and own his own land,—the land claimed by him; that the improvements all rested upon the surface of thé ground, except the fences (there is nothing to show the character of the improvements upon the land in controversy); that if any portion of the purchase price was partnership funds, it was a loan to plaintiff by the partnership; that the improvements on each claim were to be owned by the Claimant, and were not considered as á portion of the partnership assets.