Hart v. Clark , 54 Ala. 490 ( 1875 )

STONE, J.

The present case was submitted to the chancellor, in term time, on, first, the demurrer; second, on motion to dissolve the injunction on the denials in the answer. The demurrers for multifariousness and for repugnancy between the original and amended bills, are not well taken. No argument is here offered in support of them, and we find, nothing in the pleadings to justify either.

The only other demurrer is a general one — -that there is no equity in the bill or amended bill. This, under the statute, we are not permitted to consider. — Pev. Code, § 3350.

The answer is not so verified as that we can consider its denials on the motion to dissolve. — Pule 32; 1 Brick. Dig. 678, § 554; Calhoun v. Cozzens, 3 Ala. 485. This would be decisive of the present case were it not for another rule, well settled by the decisions of this court, namely; that “ on the coming in of an answer, either admitting or denying the allegations of the bill, the court will, on motion, dissolve the injunction and dismiss the bill, if it is wanting in equity.”— 1 Brick. Dig. 677, §§ 546, 550. In fact, it would seem an anomaly to predicate error of a decree dissolving an injunction, when the bill contains no equity. It thus becomes our duty to inquire whether the bill in this case, as amended, contains equity.

In a suit at law between these parties, founded on the note on which the judgment was recovered, which the present bill seeks to enjoin, an appeal was prosecuted to this court. — See Clark v. Hart, 49 Ala. 86, It was then correctly ruled that the note was unambiguous, was for the payment of money, and that parol evidence of an agreement made at the time of its execution, the result of which was to vary its legal effect, could not be received. ■ On this question, the rules of evidence are the same in equity as at law. — 3 Green! Ev, § 250.

Questions of mistake in the draft of contracts, and of fraud in the procuring their execution, will sometimes authorize the introduction of parol proof, varying the terms of the writings. But this under circumstances not disclosed in the present record, and not necessary to be here considered.— McGehee v. Rump, 37 Ala. 651.

It can not be disputed that each partner has a lien on the partnership effects, and can successfully claim that they be applied to the full payment and discharge of all debts and liabilities of the partnership, before any partner or his representative, or any individual creditor of such partner, can claim any right or title thereto. And each partner has also a specific lien on the partnership effects, not only for the amount of his share, but for moneys advanced by him beyond that amount for the use of the partnership. — -Donelson v. Posey, 13 Ala. 268-9 ; Story on Part. § 97.

This lien, however, as a general proposition, exists only in favor of the several partners. Creditors, except in certain conditions not shown in this record, can assert no lien. Partners may sell the partnership property; may convey even to one of their own number ; and the lien will be thereby destroyed. They may partition or divide the partnership effects, each partner taking his own share; and -the lien spoken of above will cease to exist. In the case of Coffin v. McCullough, 30 Ala. 107, the two partners had changed their firm connections by taking in one Griggs; and the firm name was changed to that of Coffin & Griggs. Into this new firm Coffin & McCullough each put the stock of the old firm of Coffin & McCullough as their several shares of the capital stock of the new firm. In a suit brought by McCullough before his death, but decided afterwards, a decree was rendered in his favor for the amount of his share in the latter firm. Coffin then sought to have the amount of such decree apjfiied primarily to the partnership debts of Coffin & McCullough. It was held, that by the formation of the. new partnership, and by the transfer of the partnership assets of Coffin & McCullough to the new partnership of Coffin & Griggs — each partner obtaining an individual credit by such transfer for one-half thereof — the effects ceased to be partnership assets of Coffin & McCullough, and the right to have them applied first to the partnership debts of Coffin & McCullough was thereby lost.- — See, also, Reese v. Bradford, 13 Ala. 816.

"We think the case of Coffin v. McCullough, supra, decisive of this. Hart purchased of the administrators of Clark the latter’s half interest in certain partnership effects, and gave his note for such half interest, payable to said administrators.

That note is the foundation of the judgment sought to be enjoined in tlie present suit. Hart, by his own voluntary act and contract, separated this part of the assets from the partnership effects of Clark & Hart, and thereby waived and surrendered all lien which be, as a partner, bad thereon. Tbe equity of bis bill rests alone on tbe lien which be thus surrendered. There is no equity in tbe bill, and tbe chancellor did not err in dissolving tbe injunction.

Decree affirmed.