Noonan v. Nunan

McKinstry, J. The notice of appeal was served January 12, 1885, and filed on the 13th of the same month. The certificate of the clerk shows that the undertaking on appeal was filed on the sixteenth day of January, 1885. The motion to dismiss the appeal must be denied.

If the facts found in the action, Odd Fellows’ Bank v. Noonan et al., to the effect that the right, title, and interest of the estate of Armstrong, deceased, in the leasehold and its appurtenances were purchased from the administratrix, in the name of Matthew Nunan, but really by the plaintiff herein,—who paid the whole purchase price therefor,-—for his sole use and benefit (and the decree thereupon), determined any fact which tended to establish a partnership between the parties hereto, the ruling of the court herein, excluding the judgment roll in that action, did not injure the appellant,-— because the court below found the same facts in the present action.

The court found all the facts in this action which the judgment roll would have proved, so far as they are relevant to any issue herein.

[47]In the complaint in this action it is alleged “that it was agreed and understood by and between him, this plaintiff, and this defendant, that if he, the said Thomas Noonan, would buy the said interest (of Armstrong’s estate), he and the said Matthew Nunan would thenceforward be partners in the said business, and would conduct the same as such, in the same manner as the said Armstrong and the said, defendant had done,” etc.

The court below found this' averment not to be true, and there was a substantial conflict, at least, in the evidence bearing on the issue made by it, and the denial thereof.

If it be assumed that there was a sale and conveyance of the interest of deceased in the leasehold which placed the legal title in an undivided one half thereof in Matthew Nunan in trust for Thomas Noonan, the latter would perhaps be entitled (upon proper averments) to a decree directing a conveyance of said undivided one half of the legal title to him, unless it appeared from the facts alleged, and proved by the defendant, that there were debts due from the former partnership, or from Armstrong to the former partnership, which rendered it necessary and proper that the leasehold should be sold, and its proceeds applied to the liquidation of such debts. But the leasehold and appurtenances were assets of the late partnership between defendant and Armstrong which was dissolved by the death of the latter.