Parker v. Parker , 99 Ala. 239 ( 1892 )

HARALSON, J.

The assignments of error are so general, and the transcript so voluminous, that one would hardly ascertain in what the alleged errors consisted, except for the fact, that the appellant’s counsel have called attention to them in the brief they have filed.

The fact seems to liave been overlooked by the court and counsel on both sides, that the infant distributees of the intestate, whose estate the bill in this case was filed to settle, have not, as complainants or defendants, been made parties to the suit. The complainant filed the bill, as one would suppose, more especially in the interest of her children, as, together, they were more largely interested than she. They owned four-fifths of the assets of the estate of their deceased father, when finally settled; and the lands of the intestate, — ; the estate being solvent,- — descended to them, subject only to the widow’s dower, if she was entitled to any. On the death of the deceased partner, the firm of which he was a member was eo instanii dissolved, and one of the consequences of the dissolution by death was (subject to well defined limitations) that the distributees, as to the personal assets, became joint owners, and the heirs, as to the realty, became tenants in common with the surviving partner. — Story on Part., § 346. The title to the personal assets, in a case of the kind, devolves on the survivor, to be used for the purpose of paying the debts of the partnership, and thereafter, for distribution among the representatives of the deceased; bat the title to the real property of the firm devolves on the heirs of the deceased member, subject in equity to be converted into partnership effects and used for certain partnership purposes. In any suit, therefore, touching the interest of a deceased partner in the lands of the partnership, his heirs are necessary parties. — Abernathy v. Moses, 73 Ala. 381. And it may be stated as a general rule, that in a bill for final settlement of the estate of a deceased intestate, all the next of kin are necessary parties, so that, as Story expresses it, “the rights and claims of all may be conveniently established at the same time, and in the same suit.” — Story’s Eq. PL, §§ 89, 205, 207; Teague v. Corbitt, 57 Ala. 537. And when a suit in equity cannot be disposed of properly on its merits, for the want of necessary parties, objection may be taken on error, and, in the absence of objection, by the court, ex mero motu.—Lawson v. Ala. Warehouse Co., 73 Ala. 294; Boyle v. Williams, 72 Ala. 353; Prout v. Hoge, 57 Ala. 29.

As the case must be reversed, because the infant children of the deceased intestate, who were his only next of kin and heirs at law, were not made parties, it may be well, for the purposes of another trial, to refer to some of the alleged errors in the final decree.

On the ground, that the interests of the complainant and infants in the litigation were supposed to be in substantial accord, — without reference to the fact, whether they were employed by the guardian ad litem of the infants, or represented them by other authority, — the chancellor allowed the solicitors of ihe complainant $200 as a fee for their representation of said minors in this suit. He also allowed $100 to the defendant’s solicitor for his services as guardian of said minors, and to the guardian ad litem he allowed a fee of $20. These allowances were not proper. The infants were not parties, to be represented by anybody. And if they had been, their interests were opposed throughout to those of the defendant, and, in one aspect of the case, to those of the complainant. The guardian ad litem of minor defendants, in any cause, is their responsible representative; and no one can properly represent an infant, as guardian ad litem, or as his attorney, who has an engagement to represent an adverse interest, however slight.

It is said the defendant was improperly charged with $232 “on the Deshazo mortgage.” On his statement of the receipts of the partnership, we find that he charges himself with this amount, as collected from W. L. Deshazo. Defendant sought to show that this was a mistake, and he ought not to have charged himself with that item. The only evidence we have on the subject is that of L. W. Kolb, taken before the register, and it is rather indefinite, too much so to be well understood. It was as follows: “W. L. Deshazo borrowed $200, and interest, $32, from Mrs. L. J. Parker (the complainant). Mr. H. Z. Parker bought the mortgaged property, paying the difference between the mortgage and the value of the property, and gave Mrs. Parker credit for $232, on her account at the store of H. Z. Parker, which included both her account as administrator and individual.” If Mrs. Parker lent Deshazo her own money, and took a mortgage to secure it, and the estate of S. D. Parker had no connection with the loan, and H. Z. Parker purchased the mortgage from her, and paid her, by giving her credit at his own store, and it was inadvertently charged, as an item of receipt by him of money for the partnership of H. Z. Parker & Son, the mistake ought to be corrected. It would be wrong in such case to charge him with it.

It appears from the evidence, that the defendant advanced to complainant, since his administration, for herself and' children, for support and maintenance, the sum of $954.33, The court required it to he ascertained how much of this sum was expended for the benefit of each distributee, and the amounts to be charged to them, respectively, in distribution. On a legal settlement, this would have been proper, if it was ascertained these sums were necessary to be advanced.

The evidence tends to show, though it is presented in an imperfect and very unsatisfactory form, that the store-house and lot in Ozark was purchased for, and conveyed by the seller to the firm of H. Z. Parker & Son; but it does appear that the purchase-money was all advanced by H. Z. Parker, and none of it by the deceased partner. Defendant charged the amount of the purchase-money, with interest, to the firm, as so much money paid by him on account of the purchase of the property, and to this credit he was entitled. For some unexplained reason, he procured a deed from the complainant, purporting, as the evidence tends to show, to con7 vey the interest of her deceased husband in said lot to him. After the dissolution of the partnership, by the death of his co-partner, the defendant erected a brick building on said lot, the upper part of which is used as a hotel, and the lower, for two store-rooms, which he paid for out of his own means, and which cost him, as is agreed $7,500; and this sum he seeks to have credited to himself, on the partnership settlement. The chancellor refused, on final decree, to pass upon the interest of the heirs in the property, holding that the question was not properly before the court; but did charge the defendant with the increased rents of the property, growing out of the improvements put on the lot by the de-. fendant.

There is every reason to have this question settled in this suit. With all the parties in interest before the court, it is better to have it done, than to force them to resort to another bill for the purpose.—McMaken v. McMaken, 18 Ala. 578; Sto. Eq. Pl., § 72. It does not require partition to be made, as was supposed, before the interest of the survivor and of the heirs of the deceased partner in this property may be adjudicated. Without passing on the question now, we may refer to what the authorities seem to hold.

Mr. Freeman, in his work on cotenancy and partition says, “Neither cotenant has any power to compel the other to unite with him in erecting buildings, or making any other improvements upon the common property. If either chooses to make such improvements, he can not recover from the others fheir share of the expense incurred thereby, in the absence of an express agreement on their part, or such a course of dealing as to convince the court that a mutual understanding existed between them to that effect.”—Freeman on Cotenancy & Partition, § 262; Dech's Appeal, 57 Pa. St., 472; Ford v. Knapp, 31 Hun, 522; Bazemore v. Davis, 55 Ga. 504; Elrod v. Keller, 89 Ind. 382; Becnel v. Becnel, 23 La. An. 502. And on this subject, see our own adjudications. Ferris v. Montgomery Land Co., 94 Ala. 557, and authorities there cited. And as to whether or not the cotenant making such improvements may be charged with the increase of the productive value of the property resulting from his improvements, see Freeman on Cotenancy & Partition, § 262; Nelson v. Clay, 7 J. J. Marsh. 138; s. c., 23 Am. Dec. 387.

We have made the foregoing suggestions, on the record as it now appears. When new parties are made, new facts and questions may arise, variant from those now presented.

Eeversed and remanded.