Blanchard v. Floyd

93 Ala. 53 | Ala. | 1890

COLEMAN, J.

— It is an essential requisite to a deed of conveyance of land, that the grantee be named or so described that he may be-distinguished from other persons.

The maxim,11 Id cerium est quod oertum reddi potest,” applies in such cases.

A deed made to a partnership, described as it was in this case, as “Blanchard & Burrus,” is legal, and may be aided by parol proof, showing the individuals composing the firm. Jones v. Morris, 61 Ala. 521; Lindsay v. Hoke, 21 Ala. 542.

A conveyance of real estate to- a partnership, bjr its firm name, vests the title at law in the several partners as tenants in common, and to pass the legal title all the partners must join in the conveyance. — 3 Brick. Dig., p. 692, §§ 89-91.

The legal or equitable title to lands owned by a partnership does not, like personal assets, devolve on the survivor, but the interest of the deceased partner descends to his heirs, subject in equity to be converted into partnership effects for partnership purposes. — 2 Brick. Dig., p. 692, § 99.

Where lands of a decedent have been sold by an order of the Probate Court, and the purchase-money paid, the title which passed by operation of law to the heirs; on the death of the decedent, is not divested until, under the order of the court, a conveyance is executed to the purchaser. — 3 Brick. Dig.; p. 470, § 239; 71 Ala. 594.

These familiar rules are of easy application. If the proof shows that Blanchard & Burrus, a partnership, were the purchasers of the land, and paid the purchase-money, they owned as tenants in common an equitable interest in the land. If Burrus died before the confirmation of the sale, his heirs succeeded to his equitable interest. If after his death the sale was confirmed, and an order made directing the administrator to mate title to Blanchard & Burrus, and in accordance with such order a deed was made to Blanchard & Burrus (Burrus being dead), the deed, though inoperative so as to convey the legal title to Burrus, or to his children, was not void as to Blanchard. Such a deed would convey to him the legal title to an undivided one-half interest in the lands, and upon parol proof showing that T. E. Blanchard was the Blanchard of the partnership, would sustain an action of ejectment for his half interest in the lands. Such a deed, however, would not convey the legal title to any interest to the children of Burrus. So far as it was an attempt to convey to Burrus, the deceased partner, both the order and the deed were mere nullities. Upon proof being made that Burrus died after the payment of the purchase-money, and before confirmation, the Probate Court should direct a conveyance to the heirs of Burrus of his undivided interest, or, by applying to a court of equity, the heirs could obtain the legal title to such interest. The general charge to find for the defendants, after the complaint had been amended so as to leave T. E. Blanchard the sole plaintiff, was erroneous. He was entitled to recover an undivided half interest.

The court was in error, also, in not permitting the jury to pass upon the evidence of the witness Stephens. There is no warrant in law which authorized the judge to send for the records of the Probate Court, and by a personal inspection satisfy himself as to the existence or non-existence of any disputed fact, and then as a court charge the jury upon the effect of the information thus obtained. The records of the Probate Court ought to have been introduced in evidence on the trial,, and the credibility of the witness Stephens left to the jury; or, if the records were introduced before the jury, a fact left in doubt by the bill of exceptions, it was not for the court to assume that the evidence of the witness Stephens was not of sufficient consequence to be weighed by the jury. The affirmative charge ought not to be given in any case where there is a conflict in the evidence on a material issue.

Reversed and remanded.