Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-01-28

oiu ootS uOL ulSCiOS0 IL. l1Ulrcctlt IL Is f,
shown by the evidence ofthe respondent,
that Henry Rives, Esq. her attorney in
the settlement of the estate Of Eugene N.
Robinson, had told her, short time be-
fore the execution of the trust deed. at
Eureka, Nevada, that the property all be-
longed to the Churches. She also testi-
fed that Howell had said the same thing
direct and indirect evidence lin relation
to the ownership of the property in the
record. This evidence shows, if it shows
anything, that the Churches had some i'll
terest in the property, which vested in
Howell under the decd OF January l3th,
1896. We know of no rule of law or of
equity, under the showing made in this
action, that would warrant decree SO
broad and far reaching in its efects-a de-
cree snJoinlnG part owner OF the prop
erty from selling or di>po~ing Of his in
terc>t therein-tfoln claiming, holding er
asserting his tltls OF right thereto or eEc!-
ci>ing any power or auth arity over or
concerning the same or from max ing or
DEL eru3g COVE vance Of his interest in
said property or any portion thereof, or
from in amy manner interfering With
said property or with the use iml enjoy
asat Of the same and directing him TO
surrender said property to his ca-owner.
We have been unable to fad SAL, glle
OF law or equity: we have not been cited
to any such rule, and we do not believe
such rule exists. 1t is elementary
that partners ara equally entitled to the
possession, use and enjoymens Of the
partnership property; and tlat tenants in
common are each entitled to the posses
sion, use and enjoyment of the common
property; and that che tenant in common
has the right to sell and dis pose OF his
int. est in the common property, as g
may deem fit and proper.
The other issues presented by the
pleadinss, and necessary to be considered
under this assignment, are The want and
entire absence OF consideration in max
ing the trust deed and the alleged fraud
ulent character of the claim of the appel
liant, Howell, for forty-one hundred dol
lars named therein for services rendered
as one Of the considerations for its exscu-
ton. The determination Of the question
OF the want of consideration necessarily
involves the determination of the fraud
ulent character Of the claim of forty-sne
hundred dollars. The court in its writ
ten findings practically says there was
nothing due the appellant, Howell, on
. his account From the recitals Of the de-
cree "a - the decision OF the court, it APP
pears that the court must have found
irA 0n1x hot hi 4
Howell on this account, but that the trust
deed was entirely without consideration
. As alleged in tho complaint. With the
admission of respondent in her brief
and the showing made by the testimony
f ia the record, We are unable to under
, stand by what process and upon what
. proven facts the court reached this con
cluSion. 1t is admitted ia her brief tina
, at the time Of the settlement of the es
tate of Eugene y. Robinson, there wa:
+. due to Howell under Mrs. Robinson's
. employment twelve hundred and TWEEN
= ty-tive dollars, for which Howell sav,
. his receipt but which was not paid. 1t l.
+ further admitted that, in addition to thu
n sum, Howell advanced to pay the debt
# of the estate six hundred and forty dol
q lars, making a total amount of sighteel
# hundred and sixty-five dollars du
l. Howell on that account, under the en-
J. ployment of the respondent. 1t is show
: by the record, with reference to this en-
. ployment and the amount to be pai
therefor, that on the Dist day of October
&c 1890, the respondent as executrix afore
# said, and as attorney-in- fact Of tn
!, Churches by written power and author
+ ity employed Howell AS agent and man
ager to personally supervise and attsn
= to all business affairs and accounts {
+ every manner and description, pertain
d ing and belonging to all property an
r. pro perty interests situated in Whit
- Pine County, Nevada, belonging to tn
n estate of e. N. Robinson and to the fri
h or partnership Of Robinson and Church,
: the surviving partners whom the rcspol
70 dent represented ~ attorney-in-fact. fl
!. which she agreed to pay to Howell tt
~, sum Of two hundred dollars per mon,
i. to commence from July 18th, 1889.
4. Record, Vol. !, p. -.
1t is further shown that the responde
NJ on the 9th day of January, 1891, gave
N Howell another written authority to 3
NJ for her in these matters as executrix,
:. which she agreed to pay to him fifty dc
:, lars per month to take effect from Mar
h. LIST, 1890, and to DO in addition and .
nv elusive of any amount previously agrs'
- to be paid to him for attending to t
business of Robinson, Church & Co.,
-. fer the estate OF E. N. Robinson.'
,.t Record, Vol. l, p. 70.
". 1t is not denied, and there il net ever
,s- prstense of denial, that the appella
he Howell rendered services in accordan
nd with his employment faithfully up to t
ill settlement of the estate Of Eugene
as Robinson on the 3lst day of May, Is
he and even up to the date Of the execute
m of the trust decd. A careful search
,ss the record discleses the following a
en- only facts relating to the claim of fort
,hs enc hundred dollars, named in the trr
at deed and secured by the property the