The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-03-30
no. s60G.l
:. d. Dnworth Administrator ard Appellant ". Isaac
NIoy6qld ApueIlgc.


Appeal from the Chanccry Court Of Monroe County.
THIS bill Is filed by the appellee against the appel
liant as administrator of Richard IhwoTih' dece,eed'
for "a partnership account. and 70 subject certain
lands therein specified 80 the payment Of such BAL
as may BE- found 10 be due the appellee thereon
The bill charges that appellee and sad decedent
entered into partnership in the purchase Of axlandS
sold AZ public s;ll-tHdI each 10 furnish an equal
amount Of cash and the losses. expenses, and prof
its were 70 be equally borne and divided-that appel
lee paid all the money Tor the purchase Of the par
ucuiar lands mentioned, while APPELLANTS interstate,
not only paid 40 money Int received considerable
SUM arising from the redemption Of the lands by
the original uwuer--that titles 20 the lands on said
purchase were taken ia their JOINT n3mes-that some
belong 10 said hIm-that Mayfeld the appellee, has
pad about -" Tor taxes On said lands, besides the
SlN9 - originally advanced in the purchase The
heirs at law and the administrator are all made par
ties deiendant- TO m" prayer for account Of the
partner, mp business, that the n-uld lands may he
ldad the amount due appellee paid out If the sale
as lem on the lands, and that the administrator be-
decrccd to pay the balance. and for general relief
To this bll the administrator filed lis separate de-
murreT. which was overrucd. Appellant. nilworth.
the admir-, answered. proof was taken and decree for
complainant upon report Of the commissioner as
containing the amount due, and from this decree
an appeal j. prosecuted.
There are assigned for error the following causes:
]. The decree overriding the demurrer TO the bill
, The insuihcIency of the proof 10 sustain the bill
3. The statute OF limitations, established ny the
proof
The first error as signed is designed to reach mis-
ioiuder Of parties, which it is argued exists in this
hill; thatthe administrator and heirs cannot both be-
proper partiesthat the land sought 10 be subjected
Is either to be regarded real estate descending 10
the heirs IN which event does appear that the
administrator has any necessary connection with
this litigation. or else II Is To ha regarded person
atty. a. between the partners in which the admins
TRAITOR is interested and not the heirs, and in that
event The heirs are not proper parties
The bin states purchase by the parties part
ner, Jrithoit lors. There is no agreement stated
10 the mode OF their disposition There /, state
ment OF the object Of ,he partnership beyond that 1t
was for the purchase Of lands There Is nothing on
the face OF the bill tending to show that there was
any agrcemen or understanding that the lands were
purchased TO DE dealt with a partnership stock in
trade or thai they should be sold at ALL The bill on
~ shows partnership for acquisition the does
not therefore. fail within the rules Of conversion.
which have 50 long perpteNed the profession. IL
comes most strictly within the rules laid down in Sd
How. Mss r. - Woodbridge ~. Wilkins. That
where the articles Of partnership do not provide that
lands held 10y the partnership shall he sold other
manifest On intention to cons ider them part
the effect. used in trade the heir * entitled to them
This being 1t Is conceded and such is the law that
the hti,s are necessary parties TO any Judgment or
decree intended 10 Affect their interests in the land.
question for solution. Il WIN De borne in mind thai
this j. bill for account Of alleged partnership
dissolved by the death Of one Of the partners ia
millar head Of original chancery jurisdiction. 1t
seeks first settlement and a,reranment of the IN
dfbtedaess To the appellee Of the estate, which this
administrator ItneXt seeks payment from
him Out Of the estate Of his in1estate II that should
be found sufficient without resort TO the lands of the
heir: and lastly seeks failure of this OF
payment TO subject the partnership land to his equi
table heir for Announcements and for moneys abstrac
ted or appropriated by his co-partner beyond the
amount Of ms share. This sptcFc lion he II entitled
20 enforce in a court Of equity. Collin on Partner
ship 5l2-5 and numerous authorities cited in note l.
The Interests of the parties. administrator and heirs
being thus blended ia the llrgation-the admnlstrR
tor charged with tho duty OF aseertanng and paying
itors ssNrell heirs aud the only representative Of
the Personal estate ana the mars with double in
terest represented by the administrator the 9th
only by themselves, it would seem essential thai
both should be Joined rs defendants to this bill
1t follows, therefore. that the demurrer on thi
ground was properly oyerruled.
It IS next assigned as ground Of error, that tn,
proof did not establish partnership according to tn
allegations Of the blll. but only loint tenancy.
We think the proof tended strongly. If not concu
syely to establish partnership TO purchase land a
least the profits OF loss being dlvsihe as stock
The interstate in his lifetime by the testimony O
Standiter admitted the partnership, and his labilU
I to account for sums he had received uuderit: m
the other facts in the not inconsistent witt
this view. The tide is taken in their names Jointly
partners usually do and their acts tend througLou
10 establish this relation 70 the extent already indcf
ted al least we think. therefore, there defeC
in proof on this ground.
The plea Of the statute Of limitations is next relic
on The record does not enable rs to determine thi
| question. Ii doe. not appear when the bill file
| the dates are let blank This omission cannot /
supplied by the ieste 81 the writ as the fling Of 81
bin is determined by this court TO be the eommene,
ment Of tins suit a. he,'veen the parties. s3d Mis-
The last assignment Of error is the decree of tn
court ordering the sale of the land satisfy appe
lees lem and should the land sell for sum mon
than sufficient FOR such purpose. thai such surplu
shall be equally divided between the administratC
and the complainant or appellee. and should sue
sum be insufficient 70 satisfy appellee's claim the
that execution may issue against the estate Of sal
decedent in the hands of said administrator.
This decree 80 iaraS It directs the division of II
proceeds Of the sale Of the land after the paymel
of appellees clam between the administrator of al
deceased partner and the appellee is certainly err
/, neouS. We have already seen that the land undo
this partnership. a. stated in the till and shown /
proof was not held a. stock IN trade; Ii did not II
therefore become personally 20 be dealt with sue
-vesting personally IN the Representative on n
death OF the interstate, but retained its character
/ real estate descending 20 the heirs. The heir
therefore, and not the administrator. are entitled
the surplus and the decree should have directed n
division accordingly. For this error the decree "
, / he reversed, and this court proceeding to rend
| such Judgment here as should have been eudered
the court below, orders that Judgment be entert
, here, m accordance with this opinion
= HARRIS.