Green v. Reid

Fellows, J.

(after stating the facts). The partnership came to an end not later than the fall of 1884. Before that it had ceased to function. At that time William took a portion of the partnership property and went into business for himself; James kept the balance and thereafter conducted business for himself. This bill filed for a partnership accounting over a third of a century after the partnership was at an end and after one of the partners is dead presents too stale a claim for consideration in a court of equity.

Nor can relief be granted in this case based on an agreement to transfer or deed the premises. Plaintiff’s testimony as to his dealings with his brother was put into the record over objection. The trial judge intimated that it was incompetent under the statute but allowed the record to be made. We do not consider it; it comes clearly within the statute (3 Comp. Laws 1915, § 12553). Without it there is no testimony in the record of any contract between James and William when William went north. Nor does the testimony of plaintiff’s sons, that their uncle told them shortly before he died that he would deed the property to their father, establish satisfactorily to us that plaintiff had a right to the title to the premises or that he had a contract for a deed. The allegations of plaintiff’s bill negative any such claim. Giving the allegations of paragraph 6 of plaintiff’s bill, which we have quoted and which set up the purported arrangement, the most favorable construction to plaintiff that it is possible to give, he had an option to use the premises to pay the debts or at his election to take the property and pay the-debts himself. But the allegation in paragraph 11, which we have quoted, also- negatives any claim that he elected to take the property and pay the debts because it alleges that as late as 1911 he went to see William at Newberry and importuned him to come to a settlement with reference to the debts. His contingent claim filed with the commissioners on claims shows that even at that time, months after his brother’s death, he had not elected to take the property. Without proof the allegations of plaintiff’s bill do not entitle him to relief but they majr be considered by the court in so far as they are admissions against interest.

In a supplemental brief in this court, plaintiff for the first time insists that he is entitled to- the premises because of adverse possession. Ño such claim was made in the bill, nor was it suggested in the court below. In plaintiff’s original brief in this court no claim of adverse possession was even intimated and we might well dismiss it with the statement that it comes too late. But we have already shown that plaintiff’s possession was not adverse or hostile to his brother William. We have already shown that under the allegations of his bill he entered possession with the permission of his brother and at best with an option to use the premises to pay the debts or at his election to take the premises and himself pay the debts, and that he had never exercised the option to take the premises. We have already shown that these allegations may be treated as admissions against interest. Surely they show that the possession was not adverse, was not hostile in any degree.

After the death of William his representatives paid the balance due the State and received a patent of the 8-0 acres from the State. A patent had been issued by the Federal government for the other 80 many years before. Defendants ask by way of cross-bill that their title be quieted. From what we have said it follows that they are entitled to such a decree. They are not, however, entitled to an accounting from plaintiff for use and occupation. We have refused plaintiff an accounting because his claim is. stale; so is defendants’. A court of equity should leave the parties where they left themselves.

A decree will be entered in this court in conformity with this opinion. Defendants will recover costs of both courts.

Clark, C. J., and McDonald, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred.