Evans v. John Silvey & Co.

• Citation: 42 So. 62,144 Ala. 398
• Parties: EVANS v. JOHN SILVEY & CO.
• Decision Date: 30 May 1905
• Court: Supreme Court of Alabama

42 So. 62

144 Ala. 398

EVANS v. JOHN SILVEY & CO.

Supreme Court of Alabama

May 30, 1905

Appeal from Chancery Court, Cleburne County; R. B. Kelly Chancellor.

"To be officially reported."

Suit by D. O. Daugherty and others, as individuals and as partners composing the firm of John Silvey & Co., against R. L. Evans administrator of S. O. Stripling, deceased. From an adverse decree, defendant appeals. Reversed and rendered.

This bill was filed by D. O. Daugherty, William A. Speer, Jerome Silvey, W. A. Ward, J. R. Little, and A. L. Redwine, as individuals and as partners composing the firm of John Silvey & Co., against the administrator and heirs of S. O Stripling, deceased. The allegations of the bill were to the effect that during the life of said Stripling, a judgment was rendered against him in favor of "John Silvey & Co., a firm composed of the estate of John Silvey," and the other-named complainants. This judgment was duly recorded in the office of the probate judge of Cleburne county, as required by the statute. The bill also set out real and personal property owned by Stripling at his death, claimed a lien thereon, and sought its enforcement. Demurrers were interposed and motion made to dismiss the bill, on the grounds that the judgment was void, being in favor of the estate of a deceased person, and not in name of any person and, also, that the death of the defendant in the judgment abated the lien. These demurrers and motion were overruled, whereupon a plea was interposed, setting up that the estate of said Stripling had been regularly and duly declared insolvent, and the lien of the judgment thereby abated. This plea was held insufficient by the lower court. From the action of the lower court in its ruling on the demurrers and the plea, this appeal is taken.

Anderson, J., dissenting.

Matthews & Whiteside, for appellant.

Whitson & Graham, for appellee.

ANDERSON J.

The defense made to this bill presents but two questions: First, whether or not there was a valid judgment to support the lien? Second, if there was, did the lien abate upon the death of the defendant or upon his estate being declared insolvent?

The judgment was a valid one in favor of the surviving partners of the late firm of Silvey & Company, as the estate of the deceased member could be no party plaintiff. Upon the death of one partner, the legal title to the assets and the right to sue for partnership debts are vested in the surviving partners. Costley v. Wilkerson, 49 Ala. 210. And the averment that the firm was composed of the estate of John Silvey, deceased, simply described the capacity in which the other parties sued, as the estate of a deceased member could not sue.

The recording of the judgment as provided by the statute sections 1920 to 1922 inclusive, of Code of 1896, as amended by Gen. Act 1898-99, p. 34, gave the complainant a lien on the property of the defendant in the judgment for a period of 10 years, and which did not abate upon the death of the defendant. Enslen v. Wheeler, 98 Ala. 200, 13 So. 473. As was held by this court in said case, the lien survived the defendant. We see no...