Baker v. Middlebrooks

• Decision Date: 12 December 1888
• Citation: 8 S.E. 320,81 Ga. 491
• Parties: BAKER v. MIDDLEBROOKS.
• Court: Georgia Supreme Court

8 S.E. 320

81 Ga. 491

BAKER v. MIDDLEBROOKS.

Supreme Court of Georgia

December 12, 1888

Syllabus by the Court.

Land conveyed to a firm, but never used in the partnership business, cannot, as a whole, be recovered in ejectment by the surviving partner; the partnership having been dissolved before the death of his copartner. The most the survivor can recover is his due share as a tenant in common. He cannot administer the land, either as assets of the firm, or as the property of his deceased co-tenant. The share of the latter descends to his heirs at law, though subject, it may be, to the debts of the partnership. ^[1]

It is no cause for dismissing a motion for a new trial that one of the grounds set forth was the refusal to order a nonsuit.

Error from superior court, Bartow county; FAIN, Judge.

Baker & Heyword, for plaintiff in error.

Milner Akin & Harris, for defendant in error.

BLECKLEY C.J.

1. The verdict being general, the question is whether it was warranted by law and the evidence. In this state a tenant in common can recover in ejectment only his own interest in the premises. Sanford v. Sanford, 58 Ga. 259. As to realty, partners are tenants in common, and each can convey or incumber no more than his own share. This is the general rule. Jackson v. Stanford, 19 Ga. 14; Healey v. Scofield, 60 Ga. 452; Sutlive v. Jones, 61 Ga. 676; Harris v. Visscher, 57 Ga. 229; Printup v. Turner, 65 Ga. 71. Perhaps, as to land in actual use by the firm in its business, there may be a sort of title in the partnership distinct from ownership as tenants in common. This would seem to be so if Willis v. Henderson, 43 Ga. 325, was well decided. The Code, § 1887, gives some countenance to this theory. Here, however the land in question was not so used. Moreover, the partnership ceased to exist some two years before the now deceased member died. In the interval between the dissolution and his death, where was the title, if not in the former members as tenants in common? In this state we have no joint tenancy. If a subsisting partnership can hold title to land surely an extinct one cannot. True, the Code says (section 1907) that "the surviving partner, in case of death, has the right to control the assets of the firm to the exclusion of the legal representatives of the deceased partner, and he is primarily liable to the creditors of the firm for their debts." Let it be conceded that this provision would apply to death after dissolution as well as before, and even let it include realty as well as personalty, yet we think it would not embrace realty which had never been used in the partnership business. As to it, we think the general law of descent would apply, and the share of the decedent would vest in his heirs at law; subject, it may be, to satisfy partnership creditors in preference to individual creditors. Piatt v. Oliver, 3 McLean, 27. For the surviving partner, or, rather, the surviving former partner, to administer it, sell and convey it, would be a thing unheard of in the legal history of this state, at least. The realty of a deceased person dying testate is administered by his executor, and of one dying intestate, by his administrator. It seems to us that a surviving partner cannot convey realty, save his own...