Sloan v. Wilson

• Decision Date: 11 February 1898
• Citation: 23 So. 145,117 Ala. 583
• Parties: SLOAN v. WILSON.
• Court: Alabama Supreme Court

23 So. 145

117 Ala. 583

SLOAN v. WILSON.

Supreme Court of Alabama

February 11, 1898

Appeal from circuit court, Tuscaloosa county; S. H. Spratt, Judge.

Statutory action of detinue by E. F. Sloan, administrator of the estate of Mrs. T. Sloan, deceased, against John Wilson. There were verdict and judgment for defendant, and plaintiff appeals. Reversed.

Foster & Oliver, for appellant.

Van de Graaff & McCarty, for appellee.

HARALSON J.

In the case before us, as it appears by the agreed statement of facts, J. T. Taylor and A. D. Duncan were, on the 30th August, 1893, equal partners in the dairy business. On that day, Duncan duly executed to Mrs. Sloan, appellant's intestate, a mortgage on his half interest in the partnership property, to secure a debt of $300.

The plaintiff's evidence tended to show, that in May or June 1894, there was a dissolution by mutual consent, of the partnership between Taylor and Duncan, and the partnership property was divided between them, Duncan receiving as his share, among other things, 24 cows, 9 of which were seized under the writ of detinue in this case; that the partnership business was then discontinued, and there was no agreement that the property turned over to Duncan, on this division should be bound for the partnership debts; that the partnership owed, at the time, a debt to the First National Bank for money borrowed with which to buy feed for the cattle, and Duncan agreed with Taylor to pay that debt; that Duncan, who continued the business, in April or May, 1895 owed a debt to the oil mill, on his individual account, on which his former partner, Taylor, had become surety, and he agreed with Taylor, that if the latter would pay the oil mill and bank debts, and assist him in borrowing $300, with which to pay off the mortgage to Mrs. Sloan, he would turn over to him all the property he received on said division of the partnership property, to pay him therefor; that with such understanding, he turned over to Taylor said property including nine of the cows which were allotted to him, and which were seized under the writ of detinue in this suit, and Taylor afterwards sold the same to the defendant.

The evidence for the defendant tended to show, that on the division of the partnership property, it was agreed that the property delivered to Duncan should stand for the debts owing by the partnership, and that the debts owing to the bank and oil mill, were partnership debts. In other respects, there was no conflict in the evidence. The court, at the request of defendant, gave for him the general charge. The counsel on both sides agree upon, and submit for our decision, the question,-"Whether the mortgage of A. D. Duncan to plaintiff's intestate, conveyed a legal interest, such as can be recognized and enforced in a court of law, as a foundation for a recovery in his action of detinue."

The rule is recognized, that a partner does not separately own, or have right of exclusive possession to any particular article of partnership property, or aliquot part thereof; but the real ownership and the legal title are vested in the firm. Tait v. Murphy, 80 Ala. 440, 2 So. 317; Vinson v. Ardis, 81 Ala. 271, 2 So. 879.

During the continuance of this partnership, then, Duncan did not own the legal title to the property which he mortgaged. It was in the existing firm. His mortgagee, the plaintiff's intestate, took no larger interest or title in the property mortgaged, than Duncan had. The mortgage did pass, and could only pass, the ultimate share of the partnership effects that would remain, as coming to Duncan, after the payment of the partnership debts, and settlement of accounts between the partners. Fields v. Brice, 108 Ala. 632-634, 18 So. 742; Tait v. Murphy, 80 Ala. 443, 2...