Mr. Justice Wilkin
delivered the opinion of the court:
First as to the cross-error. Prior to the purchase of the property by Turner, Manning Mayfield was employed by Harriet M. Wise, executrix, to sell the same, his compensation being agreed upon at §500, contingent upon his making a sale for §25,000, and he negotiated a sale to Thomas T. Turner for that sum. At the time of the delivery and execution of the deed and the consummation of the sale, Mayfield, being present, stated that there was §500 of the purchase price to be paid to him, whereupon the sou of Mrs. Wise, who was acting as her. agent, said to Turner, (he being about to draw a check for the amount he was to pay down,) “You can make me the check for §10,000 and I will pay Mr. Mayfield, or you can make two checks, one to me for §9500 and one to May-field for §500.” Mayfield then said: “Make the check §9500. I have an arrangement with Turner, and that will go on my arrangement.” Turner thereupon did make the check §9500, and afterwards paid the balance of the purchase price as it matured. This is substantially all the evidence found in the record relating to the §500 claim. There is no theory of the law upon which, under these facts, that amount can be made a lien upon or treated as an interest in the land. There was no contract to that effect, and nothing creating a resulting trust in favor of Mayfield. The most that can be said is, that the testimony proves that the indebtedness due from Wise to May-field was assumed by Turner. The cross-error is well assigned and must be sustained.
As to the correctness of the decree granting the relief prayed in the bill, the first question presented is, was there a contract of partnership between Thomas T. Turner, Manning Mayfield and James Moss Hunton at the time of the purchase of the land? It cannot be seriously questioned that Thomas T. Turner purchased and paid for the land. Appellants, however, earnestly contend that there was an agreement with him that it should be treated as partnership property; that it was purchased merely for the purposes of speculation and profit, and therefore, under well established principles of equity, is to be considered and treated as personalty. The relation of partnership between parties is one of contract, and the test of such relation is the intention of the parties, to be determined by the established rules for the interpretation of contracts. (National Surety Co. v. Townsend Co. 176 Ill. 156,) The only evidence claimed to prove a partnership relation in this case is the following letter of July 22, 1892, from Turner to Mayfield:
"St. Louis Mo., July 22, '92.
“Manning Mayfield, Esq.:
“Dear Sir—My understanding is, that the agreement "between you and Mr. Hunton and myself regarding the Wise land purchased by me and held in the name of William McBlair, in and near Alton, Illinois, is, that the control and disposition of said land is to be entirely in my hands until disposed of at private or public sale, in toto. I am to keep an account of all moneys received or paid out on account of said property, and when the land is sold I am to deduct from the sum total of all moneys received on account of the same all expenditures made on account of same, such as purchase money for the land, taxes, and all other expenses, of whatever nature or character, incident to the security, protection or improvement of the property, with six per cent interest from date of such expenditure, and out of the balance on hand (the net proceeds of the deal) I am to pay to you fifteen per cent and to Mr. Moss Hunton five per cent for services rendered and to be rendered in the management and sale of the property under my directions. This agreement to be binding upon myself, my heirs and assigns.
“Yours truly,
Thomas T. Turner.”
The agreement between the parties, as thus shown, is for the future disposition of the property, and manifestly was a separate and independent transaction, made subsequently to the purchase. All the inferences fairly to be drawn from this letter are repugnant to the idea of a partnership relation between the parties at that time. The fact that the land was purchased by Turner and the title taken to McBlair at Turner’s request; the declaration of trust by McBlair to Turner; the latter’s payment of the purchase price, and that Turner alone bore all the financial losses and received the proceeds of the sale of a part of the land, are circumstances weighing strongly against the existence of a partnership. (17 Am. & Eng. Ency. of Law, 832-848.) Appellants lay stress upon the last sentence of the above letter: “This agreement to be binding upon myself, my heirs and assigns.” We think, however, properly construed, it is against, rather than for, their contention. It shows that Turner did not consider the property personal assets of a partnership, otherwise it would have been wholly unnecessary to bind'his heirs, etc. Again, the conduct of Mayfield after the death of Turner, in his alleged purchase of the land from Henry S. Turner and conve3mnce. to his wife, strongly tends to prove that he did not consider himself a partner of Thomas T. Turner. It is clear to our minds that the agreement, so far as one is evidenced by the foregoing letter, was merely to fix the amount of compensation to be paid Mayfield and Hunton for their services, as the latter states in his testimony.
Holding that the relation of partners did not exist, the next question is, was the conveyance by Henry S. Turner to Manning Mayfield valid and binding upon complainants? It is not, disputed that Manning Mayfield, at the time of the conveyance to him, knew that William McBlair had held the land in trust for Thomas T. Turner, and that McBlair, at the request of Turner, had conveyed the same to Henry S. Turner, who also held it in trust, but it is denied that he knew the conditions of either of those trusts, or that by the terms of the trust Henry S. Turner did not have power to sell as he did. On the hearing, complainants proved that shortly after the land was conveyed to William McBlair he executed a declaration of trust to Thomas T. Turner, in which he stated that he held the legal title, only, in trust for Turner, and that it was his duty to convey it as directed by Turner, or, after his death, according to his will, and if he left no will, then to his legal heirs. It was also proved that McBlair, at the request of Thomas T. Turner, did convey to Henry S. Turner, and that Henry S. Turner executed a declaration of trust to Thomas T. Turner. The existence of this instrument after the death of Thomas T. Turner was established beyond dispute, but it was claimed, on the hearing, that it had been lost. Complainants therefore sought, after proving the loss, to show the contents of that instrument by parol. The defendants objected, on the ground that the search for the lost instrument was not shown to have been sufficiently thorough. and complete. The objection being overruled, proof was offered to the effect that the declaration of trust by Henry S. to Thomas T. Turner was substantially the same as that by McBlair. Irrespective of this proof, knowing that Henry S. Turner held the title in trust, Mayfield was bound by that trust, and put upon inquiry as to its terms. We are, however, unable to agree with counsel in their contention that a proper foundation was not laid for the introduction of parol testimony of the contents of the lost instrument.
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Mr. Justice Wilkin
delivered the opinion of the court:
First as to the cross-error. Prior to the purchase of the property by Turner, Manning Mayfield was employed by Harriet M. Wise, executrix, to sell the same, his compensation being agreed upon at §500, contingent upon his making a sale for §25,000, and he negotiated a sale to Thomas T. Turner for that sum. At the time of the delivery and execution of the deed and the consummation of the sale, Mayfield, being present, stated that there was §500 of the purchase price to be paid to him, whereupon the sou of Mrs. Wise, who was acting as her. agent, said to Turner, (he being about to draw a check for the amount he was to pay down,) “You can make me the check for §10,000 and I will pay Mr. Mayfield, or you can make two checks, one to me for §9500 and one to May-field for §500.” Mayfield then said: “Make the check §9500. I have an arrangement with Turner, and that will go on my arrangement.” Turner thereupon did make the check §9500, and afterwards paid the balance of the purchase price as it matured. This is substantially all the evidence found in the record relating to the §500 claim. There is no theory of the law upon which, under these facts, that amount can be made a lien upon or treated as an interest in the land. There was no contract to that effect, and nothing creating a resulting trust in favor of Mayfield. The most that can be said is, that the testimony proves that the indebtedness due from Wise to May-field was assumed by Turner. The cross-error is well assigned and must be sustained.
As to the correctness of the decree granting the relief prayed in the bill, the first question presented is, was there a contract of partnership between Thomas T. Turner, Manning Mayfield and James Moss Hunton at the time of the purchase of the land? It cannot be seriously questioned that Thomas T. Turner purchased and paid for the land. Appellants, however, earnestly contend that there was an agreement with him that it should be treated as partnership property; that it was purchased merely for the purposes of speculation and profit, and therefore, under well established principles of equity, is to be considered and treated as personalty. The relation of partnership between parties is one of contract, and the test of such relation is the intention of the parties, to be determined by the established rules for the interpretation of contracts. (National Surety Co. v. Townsend Co. 176 Ill. 156,) The only evidence claimed to prove a partnership relation in this case is the following letter of July 22, 1892, from Turner to Mayfield:
"St. Louis Mo., July 22, '92.
“Manning Mayfield, Esq.:
“Dear Sir—My understanding is, that the agreement "between you and Mr. Hunton and myself regarding the Wise land purchased by me and held in the name of William McBlair, in and near Alton, Illinois, is, that the control and disposition of said land is to be entirely in my hands until disposed of at private or public sale, in toto. I am to keep an account of all moneys received or paid out on account of said property, and when the land is sold I am to deduct from the sum total of all moneys received on account of the same all expenditures made on account of same, such as purchase money for the land, taxes, and all other expenses, of whatever nature or character, incident to the security, protection or improvement of the property, with six per cent interest from date of such expenditure, and out of the balance on hand (the net proceeds of the deal) I am to pay to you fifteen per cent and to Mr. Moss Hunton five per cent for services rendered and to be rendered in the management and sale of the property under my directions. This agreement to be binding upon myself, my heirs and assigns.
“Yours truly,
Thomas T. Turner.”
The agreement between the parties, as thus shown, is for the future disposition of the property, and manifestly was a separate and independent transaction, made subsequently to the purchase. All the inferences fairly to be drawn from this letter are repugnant to the idea of a partnership relation between the parties at that time. The fact that the land was purchased by Turner and the title taken to McBlair at Turner’s request; the declaration of trust by McBlair to Turner; the latter’s payment of the purchase price, and that Turner alone bore all the financial losses and received the proceeds of the sale of a part of the land, are circumstances weighing strongly against the existence of a partnership. (17 Am. & Eng. Ency. of Law, 832-848.) Appellants lay stress upon the last sentence of the above letter: “This agreement to be binding upon myself, my heirs and assigns.” We think, however, properly construed, it is against, rather than for, their contention. It shows that Turner did not consider the property personal assets of a partnership, otherwise it would have been wholly unnecessary to bind'his heirs, etc. Again, the conduct of Mayfield after the death of Turner, in his alleged purchase of the land from Henry S. Turner and conve3mnce. to his wife, strongly tends to prove that he did not consider himself a partner of Thomas T. Turner. It is clear to our minds that the agreement, so far as one is evidenced by the foregoing letter, was merely to fix the amount of compensation to be paid Mayfield and Hunton for their services, as the latter states in his testimony.
Holding that the relation of partners did not exist, the next question is, was the conveyance by Henry S. Turner to Manning Mayfield valid and binding upon complainants? It is not, disputed that Manning Mayfield, at the time of the conveyance to him, knew that William McBlair had held the land in trust for Thomas T. Turner, and that McBlair, at the request of Turner, had conveyed the same to Henry S. Turner, who also held it in trust, but it is denied that he knew the conditions of either of those trusts, or that by the terms of the trust Henry S. Turner did not have power to sell as he did. On the hearing, complainants proved that shortly after the land was conveyed to William McBlair he executed a declaration of trust to Thomas T. Turner, in which he stated that he held the legal title, only, in trust for Turner, and that it was his duty to convey it as directed by Turner, or, after his death, according to his will, and if he left no will, then to his legal heirs. It was also proved that McBlair, at the request of Thomas T. Turner, did convey to Henry S. Turner, and that Henry S. Turner executed a declaration of trust to Thomas T. Turner. The existence of this instrument after the death of Thomas T. Turner was established beyond dispute, but it was claimed, on the hearing, that it had been lost. Complainants therefore sought, after proving the loss, to show the contents of that instrument by parol. The defendants objected, on the ground that the search for the lost instrument was not shown to have been sufficiently thorough. and complete. The objection being overruled, proof was offered to the effect that the declaration of trust by Henry S. to Thomas T. Turner was substantially the same as that by McBlair. Irrespective of this proof, knowing that Henry S. Turner held the title in trust, Mayfield was bound by that trust, and put upon inquiry as to its terms. We are, however, unable to agree with counsel in their contention that a proper foundation was not laid for the introduction of parol testimony of the contents of the lost instrument. Pierce, the partner of Thomas T. Turner, who. was custodian of the papers of the latter after his death, until his executor, the Mississippi Valley Trust Company, took possession of them, and Vierling, an officer of the company, testified to the existence of the paper after the death of Turner, and its subsequent disappearance, and the thorough but fruitless search for it by them. It is said one Silver, a clerk in Pierce’s office, might have taken it out of the office. It was not his business to do so or in any way to molest it. If he took it he did so without authority, from sinister motives, and there being no evidence showing such a motive, or any suspicion against him, the law will not presume that he did remove it. or require evidence negativing that fact. While it is not sufficient, in laying the foundation for proving the contents of a lost instrument by parol evidence, to merely prove as a conclusion that a diligent search has been made, yet it is not required to go to the other extreme and negative every remote possibility that may exist.
It seems to us futile to insist, under the evidence appearing in this record, that Manning Mayfield did not know, at the time he took his deed from Henry S. Turner, that the latter was not the owner of the land, but that he held it in trust for his father, and after his death for these complainants, his widow and heirs.
We now come to the contention of Marcia Mayfield that she was a 6onajide purchaser for a valuable consideration without notice. The conveyance by Henry S. Turner to Manning Mayfield was, as above stated, made December 2,1897, and on December 4,1897, he conveyed to his wife, then living in California, for a stated consideration of $35,000. This deed was filed for record December 6, 1897, (two days after its date,) presumably by Manning May-field, who thereupon sent the following letter to his wife:
“Alton, III., December 6,1897.
“Dear Marcia—I have sold you the Wise tract at the price of $35,000, and on time of five years at six per cent. Of course, I expect you will make the money finally out of the transaction. I enclose you a note to sign and also a power of attorney. This power will enable me to make deeds and mortgages, and in fact to do anything in relation to the property that you could do yourself if you were here in person. I want you to have the power of attorney signed by yourself and acknowledged before the clerk of the district court,—I think his name is Bremer,— and see that he does not forget to attach his official seal. It is better than to have the acknowledgment before a notary, as the official seal proves itself in any court of record in Illinois. I would like for you to get this instrument mailed back to me as soon as you do so, as every day counts with reference to my departure for California to visit you. Do not destroy this letter, in order that same may be kept and used, if ever necessary, as a testimony of this sale.
Yours, lovingly,
Manning Mayfield.
“When signing power, just sign ‘Marcia Mayfield.’ Don’t put the letter ‘G’ in it, as you sometimes sign your name. Mail power and signed note to me at Laclede Hotel, St. Louis, and not in a registered letter, as that would delay.”
The first intimation Marcia Mayfield had that Manning Mayfield had sold her the property was this letter. Upon the receipt of it, without investigation or inquiry, she did as the letter requested. We are unable to find from the proofs any element of an innocent purchaser in Marcia Mayfield. Every consideration necessary to secure to her such protection seems to be wanting. The record shows a state of facts amply sufficient, in connection with, the foregoing letter, to justify the chancellor in finding that she was chargeable with actual notice by being put upon inquiry. In fact, we cannot see upon what reasonable theory it can be said she occupies a different or better position than her husband would if he had retained the title.
Other questions raised have been considered, but are not deemed of sufficient importance to require discussion.
For the error indicated the decree below is reversed. In all other respects it is affirmed, and the cause will be remanded to the circuit court, with direction to proceed in conformity with the views herein expressed.
Decree affirmed in part.