Glover v. Hembree

• Decision Date: 01 January 1884
• Citation: 8 So. 251,82 Ala. 324
• Parties: GLOVER ET AL. v. HEMBREE. [1]
• Court: Alabama Supreme Court

8 So. 251

82 Ala. 324

GLOVER ET AL. v. HEMBREE. ^[1]

Supreme Court of Alabama

January, 1884

Appeal from chancery court, Jackson county; S. K. MCSPADDEN, Judge.

R C. Brickell and J. E. Brown, for appellants.

F P. Ward and R. W. Walker, for appellee.

CLOPTON J.

The bill, which was filed by appellee, has a twofold purpose,-a settlement of the accounts of a partnership which had theretofore existed between complainant and defendants, and which was dissolved by the retirement of complainant in September, 1882; and to apply any balance found due to complainant to the payment of a note secured by a mortgage on lands, which she had executed to the defendant Glover, on the formation of the partnership, for a one-third interest. The bill, among other things, prays for an injunction restraining Glover from selling the lands under a power contained in the mortgage, which it alleges he was proceeding to do. The injunction having been granted and issued, a motion was made to dissolve it, and to dismiss the bill for want of equity. The motion, and a demurrer to the bill, were overruled in vacation, in April, 1884.

1. The averments of the bill are sufficient for the purpose of settling the partnership accounts. It alleges the formation of the partnership, the names of the partners, the interest of each partner, the transaction of the business for which the partnership was formed, its dissolution without a settlement, and the time and manner thereof, the making of profits, and the denial by the defendants of complainant's interest in the assets, and their liability to account to her. The bill substantially conforms to the statutory requirement that "it must contain a clear and orderly statement of the facts on which the suit is founded without prolixity or repetition, and conclude with a prayer for the appropriate relief." Code 1876, § 3761.

2. If, however, the bill were defective in the respects urged in argument, being amendable, the objection should have been raised by demurrer. A motion to dismiss for want of equity is not the equivalent of a demurrer, and is not appropriate to reach mere defects or insufficiencies of pleading curable by amendment. Seals v. Robinson, 75 Ala. 363. On the allegations of the bill, if confessed or proved, the complainant would be entitled to a proper decree of reference.

3. While courts of equity will interpose by injunction, in proper cases, to restrain the execution of a power of sale in a mortgage, such jurisdiction should be exercised only when, because of fraud, or a want or illegality of consideration, or for other sufficient reasons, the enforcement of the collection of the debt is against good conscience, and would work great and irreparable injury. 2 Jones, Mortg. § 1804; Vaughan v. Marable, 64 Ala. 60. The author cited says, in section 1805: "In general, a stronger case must be presented to the court to obtain an injunction against a proposed sale under the power than to obtain a decree setting it aside after it is made." No facts constituting fraud, or want or illegality of consideration, are averred. The claim of interference by injunction is founded on the allegations that the consideration of the note secured by the mortgage is an interest in the partnership, and that on a settlement of the accounts the defendants will be found indebted to complainants. There is no averment of insolvency or of facts showing other special equity.

4. Generally courts of equity follow the law as to set-off. The limitations of the general rule are that where there is a connection between the demands, or some special circumstances, or natural equity, arising from the mutual transactions or the condition of the parties, equity acts on it, and allows a set-off, which cannot be regarded by a court of law. Except under particular circumstances, joint and separate debts, or debts accruing in different rights, will not, for the want of mutuality in the cross-demands, be set off in equity against each other. Watts v. Sayre, 76 Ala. 397.

5. The note given to Glover cannot be said, in any legal sense, to grow out of the partnership transactions. It was given by complainant, on the formation of the partnership, as her contribution to the capital, and was given to Glover individually, because he had advanced a larger part of the capital of a prior partnership between him and Ladd. There is neither averment nor proof of any mistake, or that Ladd did not sanction the taking of the note and mortgage by Glover payable to himself, or of any intention or understanding that Ladd should have any interest therein. By the terms of the contract, the property to the note and mortgage vested in Glover, and he could have maintained thereon an action at law in his own name. Any balance found due complainant on a settlement of the partnership accounts will be the joint debt of Glover and Ladd. Having retained possession and management of the partnership assets, they hold them in trust after dissolution to pay the debts and any balance due the retiring partner. Such balance, when ascertained, constitutes a joint liability, which cannot be set off against the separate debt due Glover unless there be some intervening special equity entitling complainant to the set-off. The equitable nature of the demand is not by itself sufficient. Watts v. Sayre, supra. Giving the note for...