*3382 The petitioner, in 1912, owning 3 farms in Kansas, entered into an agreement with his sons whereby each of the sons was to receive one-fourth of the real estate and one-fourth of the profits realized, and all were to devote their time and labor to the business and share the losses. Another farm was purchased in 1912 in the name of the petitioner. In 1919 certain oil royalty interests and oil runs were sold. Upon the evidence, held that a partnership existed between the father and the sons and that the income from the sale of the interests accrued in equal shares to the petitioner and his three sons.
*1232 This is a proceeding for the redetermination of a deficiency in income tax for the year 1919, of $22,846.38.
Two issues were raised by the petitioner but the issue of depletion being abandoned, the only issue remaining is whether the income from the sale of certain oil royalty interests and oil runs was taxable to the petitioner alone or to the petitioner and his three sons in equal*3383 shares.
FINDINGS OF FACT.
The petitioner is an individual residing at Wichita, Kans. From 1899 until 1919, he lived in Butler County, Kansas. On November 25, 1899, he purchased 320 acres of land, which was known as the Brush land, for $3,000. Thereafter, he purchased in his own name the Wilcox property, consisting of 80 acres, on March 28, 1905, for $3,500; the Furman property, consisting of 80 acres, on September 5, 1906, for $4,200; and the Page land, consisting of 160 acres, on March 4, 1912, for $12,800.
When the petitioner acquired the Bush property there were no improvements upon it except a three-wire fence around it. In 1901 a house was built, in 1910 an elevator was built upon the place, and in 1913 a barn was constructed. The other property was unimproved when acquired, except the Page place, which contained a house and a small barn.
*1233 No improvements were ever made upon the Furman, Wilcox, and Page properties except the silos built upon the Page place in 1913. The house on the Bush property burned down and was rebuilt in the fall of 1912 by the petitioner and his sons with the assistance of a carpenter.
In the early part of 1912, after the*3384 house on the Bush property had burned down and the petitioner was contemplating purchasing the Page place, he entered into an oral agreement with his three sons, Shirley, Theodore, and Cline, who were all under age, whereby the petitioner promised his sons each a one-fourth interest in all of the land which petitioner owned and the profits of the business, provided they would stay on the farms, work, help pay the mortgages off, and share the losses that might be sustained. They agreed to do this and this agreement has been in force to the present time. No time was set when the sons were to receive their shares of the realty. None of the sons had any money to put into the business. At the time of the agreement there was a mortgage of $5,000 upon the farms. This mortgage was paid in 1917 from the bank account at the Peabody State Bank, which was in the name of the petitioner. At the time of the agreement the petitioner was engaged in the farming and cattle business.
No written assignment of the royalty interests or any part of the land was ever made to the petitioner's sons.
In the fall of 1912 there were debts outstanding aggregating approximately $27,000. This was an accumulation*3385 of debts, most of it incurred between 1909 and 1912, and included the cost of the home built in 1912, $6,000; cost of the Page property, $12,000; and the cost of two silos and a cutter for the Page place, $1,000. On February 4, 1913, the house which was built in 1912 on the Bush place burned down and was rebuilt later.
On March 27, 1912, a mortgage was given by petitioner to J. W. Regier for $5,000, covering the Wilcox, Furman, and Bush properties. The petitioner also borrowed $8,300 from the Peabody State Bank and with this money purchased the Page place. The money to pay both of these debts came from the bank account in the Peabody State Bank.
Under the agreement the boys were authorized to draw on the account in the Peabody State Bank, but both before and after the agreement in 1912, the sons drew checks upon this account when they needed money, signing the name of the petitioner.
In the spring of 1919 the petitioner and his family moved to Peabody, Kans., and went into the garage business under the name of Nusbaum & Eyestone. Nusbaum owned a one-half interest in *1234 the business and the petitioner and his sons each owned a one-eighth interest. The petitioner*3386 and his sons worked in the garage. In the spring of 1920 the petitioner sold out to Nusbaum and the proceeds received were deposited in the account in the Peabody State Bank.
The petitioner and his family then moved to Wichita, Kans., where they built a garage in the fall of 1922 and another in 1923. The money with which these garages were built was obtained from the account in the Peabody State Bank. The title to one of these was in the petitioner and the title to the other was in the sons, but the intention was that they should all own them jointly. The petitioner and his sons still own these garages.
The petitioner leased various lands for oil and gas purposes. In 1919, there was sold an undivided one-sixteenth royalty interest in the Bush land for $35,000, an undivided seven-eights royalty interest in the lease on the Page land for $8,000, an undivided one-sixteenth royalty interest in the Furman land for $12,000, an undivided one-thirty-second royalty interest in the Wilcox land for $18,120, and an undivided one-sixteenth royalty interest in the Page land for $10,000. Cash was received in payment for these interests and the money was deposited in the Peabody State*3387 Bank. The money received from the oil runs was also deposited in this account.
While the petitioner and his family were living upon the farm the sons worked in the oil fields part of the time during 1918 and 1919, and the money they received was deposited in the account at the Peabody State Bank. None of the sons ever received any salary from the petitioner for their work but have continued to check upon the account when they needed money for business purposes or for their personal use. The bank always honored checks drawn by the petitioner's wife or by his sons.
The petitioner did most of the negotiating of the sales of interest in the land and other business, but always discussed the matter with his sons and received their consent before action was taken. Cline negotiated the sale of an interest in the Page property. When it was necessary to borrow money from the bank, the notes given in exchange therefor would be signed by either the petitioner or his sons, and the amount borrowed would be deposited in the bank account in the Peabody State Bank. The bank deposit account shows a note of $12,000 by "Theo. E." on March 15, 1913, and another note by "Theo." on July 31, 1915, in*3388 the amount of $600. A note by "C. Eyestone," is shown under date of February 29, 1916, in the amount of $9,707.40. All of the sons of petitioner are now married and have families but they are still operating under the same agreement.
*1235 OPINION.
SIEFKIN: The sole question to be decided in this proceeding is whether the income from the sale in 1919 of certain oil royalty interests and oil runs was taxable to the petitioner alone or to the petitioner and his three sons in equal shares.
The petitioner contends that a partnership composed of himself and his three sons was formed in 1912, within the meaning of section 218(a) of the Revenue Act of 1918, that the sons each had a one-fourth interest in the land and business, and that each is taxable upon one-fourth of the income from the sale of the oil interests.
The evidence discloses that the petitioner had acquired in his own name, between 1889 and 1912, there tracts of land and had built a house upon one of the tracts called the Bush land. In the early part of 1912 the house upon the Bush land burned down and the petitioner was contemplating purchasing another farm, known as the Page place. At that time he entered*3389 into an oral agreement with his three sons, who were all under age, whereby each was to receive a one-fourth interest in the land and the business of petitioner. The sons were to remain upon the land, devote their time and labor to the business, and were to share the profits and losses of the business. There was a bank account in the Peabody State Bank in the name of the petitioner, and by the agreement the sons were authorized to draw upon this account. The evidence discloses, however, that both before and after the agreement the sons drew checks upon this account.
At the time of the agreement there was a mortgage of $5,000 upon the farms. After the agreement was made the Page place was purchased for $12,000, in the name of the petitioner. The house upon the Bush land was rebuilt for $6,000, and two silos were erected upon the Page place for an approximate cost of $1,000. The sons, during the years 1918 and 1919, worked in the oil fields and their money received from this source was deposited in the account in the Peabody State Bank and at times they drew checks upon the account signing the name of the petitioner. They also executed some notes in their own names for money*3390 borrowed from the bank. The petitioner consulted them upon all business matters including the sales of oil interests, and in one instance one of the sons negotiated the sale of an oil royalty interest. No salary was ever paid to the sons, but whenever money was needed by any of them or the petitioner for business or for personal use, money was withdrawn from the account in the Peabody State Bank.
*1236 In , the Supreme Court says:
Partnership is usually defined to be a voluntary contract between 2 or more competent persons, to place their money, effects, labor and skill, or some one or all of them, in lawful commerce or business, with the understanding that there shall be a communion of the profits thereof between them. But partnerships and community of interest, independently considered, are not always the same thing; for the first, as between the partners themselves, is founded upon the copartnership agreement which prescribes the relation they bear to each other, and of itself creates the community of interest; but the last many exist, notwithstanding there has been no agreement between the parties.
*3391 In , an oral agreement was entered into in 1907 between the father and three sons, two of whom were under age, to conduct a cattle business. A bank account was carried in the name of the father and the eldest son, and checks of any of the parties to the agreement were honored by the bank. In 1918 one of the sons managed a company in which the father and sons owned a one-sixth interest and his salary was paid over to the family account. In 1919, real estate was purchased with notes signed by the father and son and title was taken in the name of the son, who, a few months later, sold the property at a profit. The property was purchased with partnership funds and the profit was reported in 1919 partnership return. In 1918 the younger son made a contract and bond in his own name to do some grading. Partnership tools and teams were used and the profit received by him was reported as profit of the partnership for the year 1918. It was held that an ordinary common-law partnership existed between the father and his sons during the years 1918 and 1919.
From all the evidence in the instant proceeding we are of the opinion that during the*3392 year 1919 there existed an ordinary common-law partnership composed of the petitioner and his three sons.
There is no doubt that under the law of Kansas oil leases are interests in land. ; ; and .
In the case of ; , the court uses the following language:
* * * It is also well settled "that parol testimony is admissible to prove a resulting trust in relation to real estate, and that land purchased in the name of one partner, for the use and benefit of the firm, raises a resulting trust which will be enforced." Story, Eq. Jur. §§ 1206, 1207; Scruggs v. Russell, 1 McCahon, 39.
These principles are applicable to this case and decisive against the defendants. When the plaintiff was taken into the partnership of W. E. Davis & Co., on March 12, 1875, as the firm was then in existence, and in the possession of real estate purchased for partnership purposes, and then appropriated to those purposes, such real estate was partnership property, *3393 and the plaintiff, by acquiring *1237 an interest in the partnership by verbal contract, and thereafter having acted under the contract as one of the partners, with the consent of all the members, is not to be deprived of his interest in the partnership, either as to the personal property or real estate, on account of the statute of frauds. The cases establish that a partnership in any branch of trade or business may be shown by parol as an existing fact, and that whatever real estate is held for the purposes of such business is regarded as an incident thereto, and the law will imply a trust in favor of the partnership, however the lands be held in law.
* * *
We think it is immaterial whether the real estate in this case was bought with partnership funds, for partnership purposes, after the formation of the partnership, or whether a part of the real estate was put into the firm as partnership property at the formation of the new firm on March 12, 1875, if the parties have acted on the agreement and become partners. In such case, the statute of frauds ceases to be applicable. *3394 ; .
See also .
In the case of ; , where three parties entered into a parol agreement for the purchasing of land with the view of selling it, the court stated:
* * * Besides, the transaction in the present case was a partnership transaction, and in such cases real property may usually be considered in nearly the same manner as personal property; and the real intention of the parties with reference thereto, their contracts, promises, or mutual understandings, will govern without reference to whether they have been reduced to writing or not. ; ; ; ; ; *3395 . In such cases the statute of frauds and kindred statutes have no application.
In 2 Story, Eq. Jur. § 1207, the following language is used: "In cases, therefor, where real estate is purchased for partnership purposes and on partnership account, it is wholly immaterial, in the view of a court of equity in whose name or names the purchase is made and the conveyance is taken, whether in the name of one partner or of all the partners, whether in the name of a stranger alone, or of a stranger jointly with one partner. In all these cases, let the legal title be vested in whom it may, it is in equity deemed partnership property not subject to survivorship, and the partners are deemed the cestuis que trust thereof."
See also .
In , decided by the Supreme Court of Kansas in 1912, the court said:
The proposition that real estate shown to have been used and treated as partnership assets should be so considered, regardless of any writing, is well settled. *3396 ; ; ; (and other authorities cited).
The respondent contends that the doctrine that real property held by a partnership is considered as personalty and that the statute of frauds is not applicable thereto, applies only as among the members *1238 of the partnership and cites the case of , a case decided by the Supreme Court of Texas.
However, we have no doubt that under the rule of property laid down in the cited cases any one of the parties to the agreement in the instant proceeding could have recovered his proportionate share of the property and proceeds of the business in an action in the courts of Kansas. We are not primarily concerned as to who holds the legal title to the property from which the income is derived, but as to determining to whom the income accrues. We must hold that in 1919 the petitioner and his sons comprised a partnership, that the income derived from the sale in that year of oil royalty interests and oil runs accrued in equal*3397 shares to the petitioner and his three sons, and that the respondent erred in holding to the contrary.
Judgment will be entered under Rule 50.