"In regard to personal settlement, I think it is the thing to do, and will ask that you go over the plant and property and figure out the best way to arrange it and tell me your plans and I will come over next month and fix it up. I believe to incorporate new company would be safest and best way to do it and issue stock for each one's interest."

Here is a plain admission that W. W. Kersey had an interest in the "plant and property." Prior to the writing of these letters, J. L. Kersey, writing to his father about the purchase of the real estate at the sale under

deeds of trust, said:

"Before the sale took place I made arrangements with Mr. Mann to put up the money to buy it in at sale, and allow us to pay his Bank $100.00 per month until we paid off the amount of money borrowed. I consider this real estate deal the only one that saved the business for The purchase and terms of payment on the building was arranged entirely by me, and I know positively that through a plan that I carried into effect on day of sale of the building that we got it for $1300.00 less than it would have otherwise cost."

us.

* *

under the statute of frauds. By the decree the court has virtually found the parties to have been partners in the purchase of the property and the business carried on subsequently thereto. On a basis of the stock held in the old company by each, which they set out to shield by the purchase of the the decree gives 40/79 to the plaintiff and property and a continuation of the business, 39/79 to the defendant. Though the plaintiff says he did not get his due proportion, he is content with the decree. The defendant, however, by this appeal continues his contention for the sole ownership of the property and business.

It is true that by the original bill the plaintiff sought to make a case upon the theory that by an express verbal agreement the defendant acted in the purchase of the property solely for the plaintiff. But by the amended bill the plaintiff sufficiently asks the court to decree him such interest as the

In another connection, speaking of W. W. case may entitle him to. The argument Kersey he says:

"Will has threatened several times the past 3 years while we were having financial troubles to desert the plant and leave the country, and through fear of this I have pledged all I had to finance and save the business and now when the storm is over, tell me I have no interest in it, and not so much as thank me for saving him, or his original investment, in which I had one half interest, which has been concealed to this day by Will."

In this letter he also tells his father that in a recent meeting with his brother the latter had "denied that there was ever any partnership existing," and had claimed to own the business as a whole.

that this makes a new case is not tenable. The amended bill is in place. Such rights as the plaintiff has, may properly be decreed to him. The defendant submits that no agreement on his part to hold title for the plaintiff has been established, and that even if such agreement appeared, it is not enforceable under the statute of frauds, which has been pleaded. True it is, that the express agreement alleged in the original bill, that the defendant was to take and hold title to the property as a whole for the plaintiff, has not been established. If it had been established, and the case was merely based on that, with no such equity as we find appearing, it may be that the statute of frauds would apply. The rights of the plaintiff, however, present themselves to us in different phase from any based on an express agreement. Out of the facts and circumstances an implied trust arises in favor of the plaintiff. The statute of frauds, relied on by the defendant, is not involved. It can have no application to such a trust as we find here.

The parties made no adjustment of the matter. Things went on as before until the early part of 1914. Up to that time, W. W. Kersey out of the proceeds of the business had paid more than half of the note given for the purchase money. J. L. Kersey did not put his individual money into the purchase taken in his name. The business was paying off the purchase money loan. But now differences between the brothers caused a complete break of the mutual helpfulness that had existed between them during the That the defendant purchased and took troublous times of the laundry enterprise. title to the property and business in behalf Like men do, but as brothers never should, of both himself and his brother, is clear. each became insistent in his claim and ex- That he did it in furtherance of mutual tended it further than was actually just, in | resistance to the claim of the other. W. W. Kersey took the position that J. L. Kersey had simply been acting for him in every transaction, and brought this suit to settle his title as sole owner of the property and business. Then it was that J. L. Kersey for the first time claimed to be the sole owner of the property and business. He meets the claim of the plaintiff by saying that he holds title to the property by his purchase at the sale, that he entered into no agreement to hold the title for the plaintiff, and that if there had been such verbal agreement in that regard as is alleged, the same is invalid

protection against total loss upon their previous investment in the old company, is equally clear. The defendant evidently so recognized it all along, before the purchase and after. We have seen that in letters to his brother and to his father he considers that in the purchase of the property he acted for both. These letters prove how he understood the matter at the time he was purchasing and taking the title. Besides, the circumstances which led up to the purchase are of themselves sufficient to prove that the defendant could have had no other intention when he bought in the property and took title in his own name, than the car

sense it did not. The purchase protected the investment, though the stock representing the investment lost its form.

rying out of a plan impliedly agreed upon | stock did become valueless. In an equitable by him and his brother whereby they might mutually save themselves from the loss of their interests in the old company. There is not a circumstance to indicate that he intended otherwise. In view of his former readiness to come into this affair of the laundry, a business not in his line, and to act therein for the protection of his brother as against threatened ousting by strangers, we can not in reason accuse him of intention to practice the very same arts of oust ing on his brother that he had sought to shield that brother from.

Out of the circumstances under which the property was purchased both of the parties were bound in reason and good faith to each other to intend that the purchase was made for their mutual advantage and protection. Each had an equity in the property before the sale. For a long time they had worked together to the end that their investments might be saved. Each had the right to believe that the other was still acting to the same end. Nothing had transpired to alter the relation. In confidential reliance on

each other, one with ability to solve the

financial difficulties and the other with abil

Under the circumstances appearing herein the holdings in Henderson v. Henrie, 68 W. Va. 562, 71 S. E. 172, 34 L. R. A. (N. S.) 628, Ann. Cas. 1912B, 318, and similar cases, do not apply. We have not merely the taking of title by one on express verbal agreement to hold for another. This case involves an equity in the plaintiff-a trust clearly arising in his favor in the very property held by the defendant. Applicable here is the following:

"If one party obtains the legal title to property, not only by fraud or by violation of confidence or of fiduciary relations, but in any other unconscientious manner, so that he can not equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner." 1 Pomeroy's Equity Jurisprudence (3d Ed.) § 155.

As we have said, the relation between the

parties was not unlike that between partners. Impliedly there arose a sort of partnership agreement between the plaintiff and ity to run the laundry business when the the defendant, the object of which we have financial difficulties were solved, they were already set forth. Within that object came working together to the end that what each the purchase of the property. The relation had put into the old company would be saved between the parties was such that the one by a purchase of the plant and a continua- could not act within the scope of the imtion of the business by them. There is not plied agreement or toward the end sought an inference that either one of them meant without acting for the other as well as himto deprive the other of the hope of such end self. Where the purchase of certain real at the time the purchase of the plant was estate is within the object of a partnership, made, nor for months thereafter. In the the partner who buys and takes title thereold affairs they had acted as partners for for in his own name does so for the parttheir mutual good. In the purchase and nership, even though he invests his own continuation of the business they were still funds. Any other view would allow him to so acting. Jointly they were holding on, con- violate the fiduciary relation. If he does tinuing and building up their original eq- undertake so to violate it, “a court of equity uities therein. They were more than part-imposes the trust so as to nullify the breach ners; they were brothers. The relationship of confidence." 13 Harvard Law Review, between them was a confidential one-a 458. It is elementary that one partner must trust.

Not

When the defendant took title to the property he was a trustee for the plaintiff. His trusteeship extended over the property he purchased. It came within the scope of the object of their joint dealings together. only was he a trustee because of the relation to which we have referred above, but he held forty shares of the plaintiff's stock as trustee, for the very object of protecting it. We have seen that this stock came into his keeping merely as a trustee to hold and protect He could not buy in the property for himself and thereby shield his own investment alone, when he had assumed by the transfer of his brother's stock to him to protect it also. He was still under that trust. Equity will not permit him to violate it. The fact dwelt upon in the argument that all the stock became valueless by the

the same.

exercise scrupulous good faith toward the other in all matters within the scope of the partnership. That principle applies as well to other similar confidential relations.

The defendant has the legal title through the influence of confidence and trust. The parties were not dealing with each other at arm's length. The case is not simply one of the violation of a verbal agreement to hold title for another. In such case, equity follows the law. But this case involves a wholly independent equity. To allow the defendant to deny the plaintiff any interest in the property would be to sanction a fraud on the part of the former. It would convert a confidential relation into an implement of fraud. In no way will a court of equity countenance fraud. Upon the whole this case is determinable by the principle that where one obtains the legal title to property

It is argued on behalf of defendant company that, as plaintiff joined in its motion to set aside the verdict, and as neither party complained of the ruling of the court thereon, it was the duty of the court below to have empanelled a jury to re-assess the damWhere on demurrer to evidence and volun- ages, and to have entered such judgment on tary joinder therein by the demurree the trial the demurrer to the evidence as would have court, on motion of the demurree, erroneously been proper. But notwithstanding this proppermits withdrawal of the joinder, and on grounds of surprise, and newly discovered evi- osition of counsel, we are asked to reverse dence, erroneously sets aside the demurrer to the the judgment below permitting withdrawal evidence and awards the demurree a new trial of plaintiff's joinder, and to pronounce judgon all issues, this court on reversal of the judgment upon the demurrer in its favor and

evident purpose of plaintiff in joining in de- | prise was occasioned by the evidence of defendant's motion for a new trial was in aid fendant's witness Charley Taylor, to the efof his motion to withdraw his joinder in the demurrer, and to set aside the demurrer and for a new trial on all the issues, based on surprise and the newly discovered evidence of the witnesses Denning and Peebles. As we understand it the proposition of defendant's counsel now is that we should reverse the judgment below, disregard the verdict of the jury, and pronounce judgment in its favor on the demurrer to the evidence, because, as they view the evidence, the alleged negligence of the defendant has not been proven.

able to judge of the weight and credibility of the testimony, than an appellate court would be, the parties would by original judgment here be deprived of the benefit of original action by the trial court, and the prevailing party of the benefit of the judgment in his favor on writ of error here. Our decisions all call for original action by the trial court, as a prerequisite to appellate jurisdiction. Armstrong v. Town of Grafton, 23 W. Va. 50; Woods v. Campbell, 45 W. Va. 203, 32 S. E. 208; Kesler v. Lapham, 46 W. Va. 293, 33 S. E. 289; Bartlett v. Boyles, 66 W. Va. 327, 66 S. E. 474. Besides it is suggested by plaintiff's counsel that original action here upon the demurrer to the evidence might deprive him of the right to take a nonsuit, if so advised, and his rights be prejudiced in that way. Thrasher v. Ballard, 33 W. Va. 285, 290-293, 10 S. E. 411, 25 Am. St. Rep. 894.

ning farm the day of the fire. One witness, who sees and hears the witnesses, is better living in the neighborhood, and well acquainted with conditions, swore that according to his recollection one Rymer had cleared the pine thicket some two or three years before the fire in question, and before Denning purchased the farm, that though Denning had done some clearing after he purchased the farm, witness was pretty sure he had done no clearing in the spring of 1911, just before plaintiff's property was burned in May of that year. There is little difference between this evidence and that contained in the affidavit of Denning relied on for a new trial. He admits he had a small portion of his land cleared in the early spring of 1911, but says that before May 22, 1911, the day of the fire, the clearing had been completed, the land burned off, plowed and planted in corn, and he thought the corn had been worked once prior to that date; that he was present at the well on the day of the fire, arriving there when the derrick was about to fall in; that there was no fire at any place on his farm that day which by any possibility could have set out the fire destroying plaintiff's property; that he observed the road spoken of by Taylor, over the Davis land, and between his land and the plaintiff's well, and that he observed no signs of fire beyond or east of that road. The witness Peebles and other witnesses could have observed the same facts at and immediately after the fire. Plaintiff himself was a witness and swears that he was at the well the evening of the fire and he then had the same opportunity to see and observe the conditions then surrounding the well, and as to whether there were any evidences of fire east of the road running through the land. He could have been recalled and could probably have proved all or substantially all that it now appears Denning would prove. Besides, when a party is surprised, and knows of evidence he should then, as a general rule, protect himself by asking a continuance, or taking a nonsuit, and not take the chance of an adverse verdict, and then resort to a motion for a new trial as a means of correcting his mistake. Henderson v. Hazlett, 83 S. E. 907.

[3] We are of opinion that under our practice we ought not to pronounce final judg ment on the demurrer here until the trial court has acted. Defendant's counsel cite Smith v. South Penn Oil Co., 59 W. Va. 204, 53 S. E. 152, in support of their motion for judgment here. But the case is inapt. In that case the court below had pronounced judgment on the demurrer. True we reversed that judgment for error therein and then proceeded to pronounce judgment here, but there the lower court had given its judgment on the demurrer. The only case we have found which at first blush might seem to justify defendant's motion for judgment here is University of Virginia v. Snyder, 100 Va. 567, 42 S. E. 337. In that case, however, the court was reviewing the judgment below refusing to compel joinder in a demurrer by the demurree. It, therefore, became necessary for the court to consider the evidence, and finding error in the judgment below, proceeded to pronounce judgment on the demurrer to the evidence in favor of the demurrant. No precedent is cited by the Virginia court for this practice. But regarding that as proper practice in such cases, it hardly furnished a precedent for a case like the one at bar. The court below in that case in pronouncing the judgment complained of was necessarily compelled to consider the evidence far enough at least to determine whether it was such as to require joinder in the demurrer thereto, and to that extent the court below must necessarily have pronounced judgment thereon. In this case here we have no judgment of the trial court of any kind on the demurrer to the evidence. If the Virginia case promulgates a correct rule of practice, it is not entirely

Plaintiff having voluntarily joined in the demurrer to the evidence, and having now determined that the court below erred in permitting him to withdraw that joinder, the question comes, what disposition shall we make of the case on this hearing? The court below has not as yet acted upon the demurrer to the evidence, except to set it aside to let in the new evidence. In ad vance of its action thereon shall we now proceed as requested by counsel for defendant company to consider the demurrer, and pro-applicable to the case in hand. nounce such judgment as we might think proper? Possibly, as an original proposition, we might take a different view of the evidence from the trial court, and as the judge,

For the reasons aforesaid, we are of opinion to reverse the judgment, reinstate the demurrer and the joinder of plaintiff therein, and to remand the case for further pro