Alexander v. Kimbro

| Miss. | Oct 15, 1873

PeytoN, C. J.,

delivered the opinion of the court:

Joseph A. Kimbro filed his bill in the chancery court of Holmes county, against the heirs of Joseph Kimbro and J. C. G. Kimbro, deceased, alleging that J. C. G. Kimbro, in his life-time, was seized and possessed of certain lots of land in the town of Lexington, in said county, as of his own estate in fee simple, and so seized and possessed, on the 7th day of January, 1854, for a valuable consideration, sold and 'conveyed to Joseph Kimbro and Joseph A. Kimbro, an undivided two-thirds of said real estate, consisting of lots numbered 28 and 29, in said town of Lexington ; that these parties are tenants in common of said real estate, and that a sale will better promote the interest of all parties than a partition. The bill prays for a decree of sale of sai4 property, and that the proceeds of the sale be distributed among all persons interested in the estate in proportion to their interests. '

Upon a final hearing of the cause, the court decreed a sale of the property for the purpose aforesaid.

On behalf of the defendants in the court below, it was insisted that said lots were partnership propertjq and that there can be no division of such property until the accounts of the partnership have been taken, and the clear interest of each partner ascertained. And this presents the main question in the cause, the solution of which will very much depend upon the terms of the partnership of Joseph Kimbro, J. O. G. Kimbro and Joseph A. Kimbro, as evidenced by them, *537in writing, in the words and figures following: “This agreement or indenture made the 7th day of January, A. D. 1854, between Joseph Kimbro and his two sons, John O. G. and Joseph A., for the purpose of forming a partnership, to take effect from the 28th of November last, for the purpose of conducting a livery stable, in the town of Lexington, and •running a steam saw-mill, under the name of Kimbro & Sons. They are to be equal -partners in furnishing capital, and severally to contribute to the advancement of the interest of the firm. And the said John 0. G. and Joseph A. are to manage and conduct the business of the mill and stable free of any compensation or charge for their services, and the -profit or losses are to be equally divided between the three parties. It is also agreed, by and between the parties, that any one member of the firm may use the money or credit of the firm for the purpose of trading, that is, buying land, negroes, or stock of any description, and all land purchased shall be deeded in the name of John 0. G. Kim-bro, for the purpose of readily conveying the same for the convenience and benefit of said firm.”

Whether the appropriation of land to the uses of the partnership, without its being purchased with partnership funds, will operate to render it partnership property, will very much depend upon the intention of the parties and the evidence of that intention. It seems to be settled, that the mere fact that property held by the firm as tenants in common, is used in and for the partnership business, or a mere agreement to use it for partnership purposes, is not of itself sufficient to convert it into partnership stock. ■ There must be some evidence of further agreement to make it partnership property. Frank v. Branch, 16 Conn., 261.

The American cases hold, generally, that real estate not purchased with partnership funds, does not become partnership property, though used for partnership purposes, unless there is some agreement that it so considered. 1 Am. L. 0., 5th ed., 605.

There was a partnership in the business of the stable and *538mill, but unless the intent of. the tenants in common to throw their real estate into the fund as partnership stock, is distinctly manifested, or unless the real property is bought with the social funds, for the partnership purposes, it must-still retain its character of realty. It is believed that the firm could acquire no interest in the property itself, unless it is by express agreement, in writing, or unless by purchasing with partnership funds, an implied trust is raised in its favor. To raise a trust by such purchase, it must have been made at the time, with partnership funds or on partnership responsibility. Wheatley’s Heirs v. Calhoun, 12 Leigh, 272.

In the case under consideration, the real estate in controversy was not purchased with common funds, nor was any common capital withdrawn from the power of creditors to make the purchase, nor was there any agreement that the property thus owned in common should become partnership stock, or constitute any part of the capital of the firm in the business of the stable and the mill.

Entertaining this view, of the law of the case, we think the decree of the court below was right, and must, therefore, be affirmed.