Whisenant v. Hybart

MAYFIELD, J.

The heirs at law of a deceased partner are proper if not necessary parties to a bill to redeem lands which were mortgaged to the partnership,, and in the name thereof. The necessary parties defendant to a bill to redeem .from a mortgage are those who are legally or beneficially interested in the-legal estate created by the mortgage. The heirs of the deceased partner may be both legally and beneficially interested in the mortgage estate as shown by the averments of the bill. — Moon v. Jacobs, 103 Ala. 549, 15 South. 866. The chancellor therefore erred in sustaining a demurrer to the bill because of a misjoinder of the heirs of H. EL Hybart as respondents.

The English rule seems to be that when lands are acquired in the partnership name, with partnership funds, and for partnership purposes, equity will treat them as personalty for all purposes; but the better considered American cases hold that the lands thus acquired must be treated as personalty until the purposes of the partnership are accomplished, and then as realty, with the attributes of a tenancy in common. — Brewer v. Browne, 68 Ala. 210; Espy v. Comer, 76 Ala. 501. The statute (section 4899 of the Code of 1907), providing that payment of the mortgage debt revests title, does not change the rule of law as to the necessary or proper parties in bills to redeem.

The decree is reversed, and the cause is remanded.

Dowdell, C. J., and Simpson and Sayre, JJ., concur.