73 Ala. 381 | Ala. | 1882
— The present bill may be regarded as one to set aside a sale made by the register, and- to allow Moses, surviving partner of Hall, Moses & Co., to effect a redemption of part of the lands by a resale. The bill avers that in December, 1870, Wilkins and Smith, personal representatives of one Wilkins, filed their bill to foreclose a mortgage, executed in 1866 by one Carlisle to one Taylor, and transferred by the latter to Wilkins and Smith. Among other parties to that bill, Hall, Moses & Co., a mercantile firm, were made defendants; and it' was averred that they claimed some interest in the land embraced in the mortgage, but the nature of their interest was not set out. They answered the bill, setting forth the nature of their claim. After the making of the mortgage by Carlisle to Taylor, part of the lands embraced in the mortgage was sold at sheriffs sale to Iluguley and another, under execution against Carlisle; and Iluguley had then conveyed the lands he had so purchased to Hall, Moses & Co., as security for moneys he owed them. Such was the claim set up by Hall, Moses & Co.; and this court, when that case came before it — Carlisle v. Wil
The sale made by the register was not void, nor did it become void by the subsequent action of this court. We have
The bill in the present case was filed in August, 1882, more than nine years after the sale ’ by the register, and more than eight years after the decree of the chancellor was corrected and affirmed in this court. — Carlise v. Wilkins, 51 Ala. 371. The bill offers no excuse for this delay. One of the grounds of demurrer is staleness. We think this ground well taken. Robinson v. Cullom, 41 Ala. 693; McGaskell v. Lee, 39 Ala. 131; Dobbs v. Barnes, at the present term [not reported]. It would work great hardship and opression, if parties, circumstanced as -the present complainant is, could slumber so long on their rights, and allow a purchaser to quietly occupy under a title at least colorable, until a ruinous account for rents had run up against him. Such a precedent would be akin to improving a man out of his estate.
There is another view of this case which should not be ignored. Apparently, it seeks to liquidate the mortgage debt to Wilkins and Smith, under which the lands were sold, with the rents and profits alleged to have been realized since the register’s sale. The bill contains no averment that the lands will command a better price at a second sale, nor is there an offer to make them bring even that much. Now, we do not decide absolutely, but it is worthy of inquiry, whether Abernathy can be charged with rents for more than, one year before the suit was brought. — Dudley v. Witter, 46 Ala. 664; Dozier v. Mitchell, 65 Ala. 511.
The 13th ground of demurrer ought to have been sustained. The title, legal or equitable, to lands owned by a partnership does not, like personal assets, devolve on the survivor. It descends to the heir, subject in equity to be converted into partnership effects and uses, for certain partnership purposes.
On the two points mentioned the chancellor erred. But as questions may arise on a motion to amend, which can only be considered in the court below, we will remand the cause, to be further proceeded in according to the principles of this opinion.
Reversed and remanded.