Ogletree v. Rainer

• Decision Date: 02 July 1907
• Citation: 44 So. 565,152 Ala. 467
• Parties: OGLETREE ET AL. v. RAINER ET AL.
• Court: Alabama Supreme Court

44 So. 565

152 Ala. 467

OGLETREE ET AL. v. RAINER ET AL.

Supreme Court of Alabama

July 2, 1907

Appeal from Chancery Court, Coffee County; A. B. Foster, Special Chancellor.

Bill by F. P. Rainer and another against Laura Ogletree and others to recover certain land and to compel defendants to convey all their interest therein to complainants. From a decree overruling certain demurrers to the bill, defendants appeal. Reversed and rendered.

The facts made by the bill are that on and prior to the 8th of May, 1882, Samuel P. Beall and John W. Beall were partners doing business under the firm name of S. P. Beall & Son in the town of Elba, Ala., and were the owners and in possession of a certain house and lot in the town of Elba, particularly described in the bill; that Samuel P. Beall is the father of respondent, and John W. Beall is a brother of respondent that on May 8, 1882, Samuel P. Beall died, and on the 8th day of February, 1884, the said John W. Beall, as surviving partner of the firm of S. P. Beall & Son, and his wife, Mary O. Beall, and the widow of Samuel P. Beall, sold and conveyed by warranty deed to Hettie Smith all of the above described land (a copy of the deed being attached as an exhibit to the bill); that complainants are now the owners and in possession of said land, having obtained title to the same by mesne conveyances from the said Hettie Smith and those claiming under her; that complainant Rainer owns a certain described portion of the lot by deed executed to him by J. W. Comer (a copy of that deed being attached); that Mrs. Lee is the owner of and in possession of a certain described part of said lot as described in two deeds executed to her by Claude Riley that a deed was also executed to her by W. W. Gunter (these deeds being made exhibits). It is then alleged that the sale of said lands by said John W. Beall and those joining with him in the deed to Hettie Smith was made for the purpose of securing money with which to pay the indebtedness of the firm of S. P. Beall & Son, and that the proceeds arising from the sale were paid by said John W. Beall on debts contracted by said firm of S. P. Beall & Son, and that by said conveyance the said Hettie Smith and those claiming under her acquired the equitable title to the interest of the said S. P. Beall in said lands, and the legal title of the said John W. Beall and wife and Susan A. Beall, but that the legal title to the interest of S. P. Beall is still vested in the respondents mentioned above, the respondents being the children and heirs at law of S. P. Beall; that the said Hettie Smith and those claiming under her, including these complainants, have been in the actual possession of said lands since the date of the execution of the deed to her by said John W. Beall and wife and Susan A. Beall, claiming and using said lands as their own; that at the time of the death of said S. P. Beall he left a will disposing of all his real and personal property which will has been duly admitted to probate, and by the terms of which Susan A. Beall became entitled to a life estate in the lands hereinabove mentioned; and that by virtue of the deed from John W. Beall and wife and said Susan A. Beall to Hettie Smith these complainants acquired a life estate in said lands. The respondents filed a motion to dismiss the bill for want of equity, which motion was overruled. The bill was then amended by the additional allegation that the said real estate was property belonging to said firm as a partnership, having been acquired by the said firm by purchase partly with partnership funds and partly received in payment of a debt due to said partnership, and that it was acquired before the death of the senior partner, and that it was held by said partnership and used by it for partnership purposes, and that at the time the said John W. Beall sold the said real property there were in existence debts which the said firm owed at the death of said Samuel P. Beall, and which the said John W. Beall, as surviving partner, was under the duty of paying.

After amendment the respondents filed a number of demurrers, 41 in all, but it is only necessary to set out the following: (20) "There is no averment in said bill that it was necessary to sell said real estate to pay the debts of said partnership." (24) "The bill shows, and by its averment and exhibits attached thereto, that said J. W. Beall did not sell said lands or convey the same as surviving partner." (25) "There is no averment in said bill showing how or in what way or in what manner these respondents are bound by the averments of said bill." (26) "The averments of said bill show that these respondents are not bound thereby." (27) "There is no averment in said bill showing how or in what way the estate...