120 Ga. 944 | Ga. | 1904
We quote from the statement of facts made by-Mr. Justice Cobb when this case was before this court on a former occasion (117 Ga. 556) so much as is pertinent to the decision now to be rendered: “ The decedent Samuel McGarrah, and the defendant M. B. Council, entered into a partnership in 1887, for the purpose of engaging in the warehouse and commission business, the partners taking an equal interest in the business. In 1890 the tract of land which forms the principal subject-matter of the controversy, together with its appurtenances, was conveyed to the partnership.” The land was cultivated by the partnership until 1899, when McGarrah rented it from the firm of which he was a member, giving his note to the firm for the amount of the rent. At the same time, Council & McGarrah gave to the Bank of Southwestern Georgia their promissory note for $4,624.58, depositing as collateral security therefor the rent note of Samuel McGarrah. A few days subsequently they also gave the bank a mortgage on the land to secure the note referred to, “ and all other notes or drafts which the grantor may execute to the grantee within twelve months.” “ The defendant Council also gave to the bank his individual obligation for a specified sum of money, as security for the payment of the debts due it by the partnership. Samuel McGarrah died on December 6, 1901. On December 30, 1901, the bank rented to E. Ross McGarrah and John M. McGarrah, two of the plaintiffs, the land.which had been mortgaged to it by the partnership, together with certain personal property described in the rent contract, which was to expire on December 15, 1902. In August, 1902, M. B. Council, as surviving partner of the firm of Council & McGarrah, executed to the bank a deed to the land in controversy, in payment of the. debt due the bank by the partnership, and upon the execution of
We think it is clear that the legal title to real estate can never vest in a partnership as such. Baker v. Middlebrooks, 81 Ga. 494, and cit. As before stated, this was a rule of the common law, which has been repeatedly announced by this court to be the law of Georgia. But in the winding up of partnership affairs, to treat the partners in all cases as tenants in common of land bought during the continuation of the partnership, with partnership money and as a part of the partnership enterprise, would give rise to numerous complications and render more difficult the adjustment of claims against the firm. To obviate these difficulties, and to facilitate the winding up of partnership affairs on the death of a partner, a court of equity will give to ‘the surviving partner an equitable title in the interest of-his deceased cotenant in the land, and a conveyance by him of the interest so acquired
The foregoing decides the case made by the main bill of exceptions on its substantial merits, and carries with it a decision of the other points made by the record. ' The rulings complained of necessarily followed from the view which the judge entertained of the law governing the case on the point which we have already discussed, and a detailed treatment of those rulings would involve idle repetition and be useless.
Judgment on the main bill of exceptions reversed; on the cross-bill affirmed.