Dilworth v. Mayfield ( 1858 )

HaNDY, J.,

delivered the opinion of the court.

This bill is filed by the appellee against the appellant, as administrator of Richard Dilworth, deceased, for a partnership account, and to subject certain lands therein specified to the payment of such balance as may be found to be due the appellee thereon.

The bill charges that appellee and said decedent entered into partnership in the purchase of tax lands sold at public sale; that each was to furnish an equal amount of cash, and the losses, expenses, and profits were to be equally borne and divided; that ap-pellee paid all the money for the purchase of the particular lands mentioned, while appellant’s intestate not only paid no money, but received a considerable sum arising from the redemption of the lands by the original owner; that titles .to the lands on said purchase were taken in their joint names; that some of said lands are yet unsold or unredeemed, and still belong to said firm; that May-field, the appellee, has paid about $200 for taxes on said lands, besides the $189 85 originally advanced in their purchase.

The heirs-at-law and the administrator are all made parties defendants ; prayer for an account of the partnership business; that the unsold lands may be sold; the amount due appellee paid out of the sale as a lien on the lands; and that the administrator be decreed to pay the balance, and for general relief.

To this bill the administrator filed his separate demurrer, which was overruled; appellant Dilworth, the administrator, answered; proof was taken, and decree for complainant, upon report of commission ascertaining the amount due; and from this decree an appeal is prosecuted.

There are assigned for error the following causes:—

1. The decree overruling the demurrer to the bill.

2. The insufficiency of the proof to sustain the bill.

3. The Statute of Limitations, established by the proof.

The first error assigned, is designed to reach a misjoinder of parties, which it is argued exists in this bill; that the administrator and heirs cannot be both proper parties; that the land sought to be subjected is to be regarded, either as real estate, descending to the heirs, in which event it does not appear that the administrator has any necessary connection with this litigation; or else it is to be regarded as personalty, as between the partners, in which the administrator is interested, and not the heirs, and in that event the heirs are not proper parties.

The bill states a purchase by the parties as partners without more. There is no agreement stated, as to the mode of their disposition ; there is no statement of the object of the partnership, beyond that it was “for the purchase of landsthere is nothing on the face of the bill, tending to show that there was any agreement, or understanding, that the lands were purchased to be dealt with as partnership stock in trade, or that they should be sold at all. The bill only shows a partnership for acquisition. See Brady v. Calhoun, 1 Penn. R. 147; Collyer on Part. 47, § 51, note 5, and authorities cited. The case does not, therefore, fall within the rules of conversion, which have so long perplexed the profession. It comes most strictly within the rule laid down in Wooldrige v. Wilkins, 3 How. Miss. R. 372, that “when the articles of partnership do not provide that lands held by the partnership shall be sold, or otherwise manifest an intention to consider them a part of the effects used in trade, the heir is entitled to them.” This being so, it is conceded, and such is the law, that the heirs are necessary parties to any judgment, or decree, intended to affect their interests in the land.

Is the administrator a proper party ? is the next question for solution. It will be borne in mind, that this is a bill for an account of an alleged partnership dissolved by the death of one of the partners, a familiar head of original chancery jurisdiction. It seeks, first, a settlement and ascertainment of the indebtedness to the ap-pellee, of the estate which this administrator represents; it next seeks, payment from him, out of tbe estate of bis intestate, if that should be found sufficient, without resort to the lands of the heir; and it lastly seeks, on failure of this source of payment, to subject the partnership land to his equitable lien for advancements, and for moneys abstracted or appropriated by his copartner, beyond the amount of his share. This specific lien he is entitled to enforce in a court of ^equity. Collyer on Partnership, § 125, and numerous authorities cited in note 1. The interests of the parties, administrator, and heirs, being thus blended in this litigation — the administrator charged with the duty of ascertaining and paying the debts of the estate, by law, for the benefit of creditors as well as heirs, and the only representative of the personal estate; and the heirs with a double interest, one represented by the administrator, the other only by themselves — it would seem essential that both should be joined as defendants to this bill.

It follows, therefore, that the demurrer on this ground was properly overruled.

It is next assigned, as ground of error, that the proof did not establish a partnership, according to the allegations of the bill, but only a joint tenancy.

We think the proof tended strongly, if not conclusively, to establish a partnership, to purchase land, at least; the “ profits or loss being divisible as stock.” The intestate in his lifetime, by the testimony of Standifer, admitted the partnership, and his liability to account, for sums he had received under it; and the other facts in the case are not inconsistent with this view. The title is taken in their names jointly, as partners usually do; and their acts tend, throughout, to establish this relation, to the extent already indicated, at least. We think, therefore, there was no defect in proof on this ground.

The plea of the Statute of Limitations is next relied on. The record does not enable us to determine this question. It does not appear when the bill was filed; the dates are left blank. This omission cannot be supplied by the date of the writ, as the filing of the HU is determined, by this court, to be the commencement of the suit as between the parties. Bacon et al. v. Gardner et al. 23 Miss. 60.

The last assignment of error is the decree of the court ordering tbe sale of tbe land to satisfy appellee’s lien ; and should land sell for a sum more than sufficient for sucb purpose, that such lur-plus shall be equally divided between the administrator and the complainant, or appellee; and should such sum be insufficient to satisfy appellee’s claim, then, that execution may issue against the estate of said deceased, in the hands of said administrator.

This decree, so far as it directs the division of the proceeds of the sale of the land, after the payment of appellee’s claim, between the administrator of the deceased partner and the appellee, is certainly erroneous. We have already seen that the land under this partnership, as stated in the bill and shown by the proof, was not held as stock in trade; it did not, therefore, become personalty, to be dealt with as such, vesting as personalty in the representative, on the death of the intestate, but retained its character as real estate, descending to the heirs. The heirs, therefore, and not the administrator, are entitled to the surplus; and the decree should have directed the division accordingly. For this error, however, the decree will not be reversed, as the administrator is the only appellant, and the decree below is in his favor.

Let the judgment be affirmed.