Bowman v. O'Reilly, 31 Miss. 261

Bowman v. O'Reilly

31 Miss. 261 | Miss. | 1856

Handy, J.,

delivered the opinion of the court.

This was a bill filed in the Superior Court of Chancery by Fyler and Henderson, against the administrator of Nicholas O’Reilly, to enforce their vendor’s lien upon a tract of land purchased of them by O’Reilly in his life time. The heirs of O’Reilly were also made defendants, including the children of his brother, Philip O’Reilly, deceased, who filed their answer and cross-bill, alleging that so much of the purchase-money of the land as had been paid by Nicholas O’Reilly, was paid by money which belonged to the estate of Philip O’Reilly, and by the proceeds of the labor of slaves belonging to that estate; and praying that any surplus of money arising from the sale of the land, after the satisfaction of the balance due on the vendor’s lien, should be applied to the payment of the money due the estate of Philip O’Reilly, on account of the use of his money and means in making payments of the purchase-money. The administrator of Nicholas O’Reilly answered the cross-bill, denying its allegations, and denying the Right of Philip O’Reilly’s representatives to the relief sought by their cross-bill.

*264Under this state of pleadings, proof was taken to show that the money was paid by means of cotton grown on a plantation carried on by the firm of N. & E. O’Reilly & Co., in which Philip O’Reilly was said to have an interest. But the proof is not sufficient to show an interest in the firm as a co-partner; and it appears that a suit was brought by Philip O’Reilly’s administrator against Nicholas O’Reilly’s administrator, for the hire of slaves of the farm, and used on the plantation during the time when the cotton which was applied to the payment of the purchase-money of this land was raised, and a judgment was recovered for upwards of $6000. It is not shown that the money was paid by the individual means of Philip O’Reilly.

The chancellor decreed that the surplus of. the proceeds of the sale, after paying the vendor’s debt, should be distributed per stirpes among the distributees of Philip, Nicholas, and Edmund O’Reilly — and from this decree the administrator of Nicholas O’Reilly and of Edmund O’Reilly appeals.

It is clear that the decree cannot be sustained. It appears to be founded on the idea that there was a partnership in planting, between the three brothers, and that the means of the firm were used by Nicholas O’Reilly, in making the payments upon the purchase-money of the land. Conceding this to be true in point of fact, it will not sustain the decree, for several reasons.

1. The cross-bill does not set up a partnership. The charge is, that the money was paid by means belonging to Philip O’Reilly, and not by the application of partnership funds in making the purchase. Under such an allegation, it was not proper to proceed on evidence showing that the transaction was to be governed by the rules applicable to partnership affairs; for it is a well established rule of pleading in equity, that every fact essential to the plaintiff’s title to maintain the bill and obtain the relief sought, must be stated in the bill; and that no proof can be offered, nor can relief be granted, upon matters not charged in the bill. Story, Eq. PI. § 257.

2. Neither the pleadings nor the proofs show any ground for treating this land, or the proceeds of its sale, as partnership pro-, perty. If the money was paid by partnership means, the cross-*265bill does not seek an account of the partnership affairs, nor does the proof show what would be the state of accounts between the partners. No proof whatever was taken upon that point, nor was any account ordered or taken. Under such circumstances, it was therefore palpably erroneous to decree that the alleged partner was entitled to any interest in the avails of the property.

But if we regard the purchase-money as having been paid by the individual means of Philip O’Reilly, according to the allegations of the cross-bill, the decree is equally indefensible. For it would merely present the case of a purchaser who had used the means of another in purchasing land for himself, which, though it would render him a general debtor for. the money used, would create no lien upon the property purchased, in favor of the person whose money had been used.

The decree is reversed, and the cross-bill dismissed.