102 F. 38 | 8th Cir. | 1900
after stating tbe case as above, delivered tbe opinion of the court.
Under tbe repeated decisions of this court and of tbe supreme court of tbe United 'States, the correctness of tbe special findings of fact by tbe circuit court cannot be inquired into by this court. See Searcy Co. v. Thompson, 27 U. S. App. 715, 18 C. C. A. 349, 66 Fed. 92 (Judge Thayer delivering the opinion of tbe court), where tbe cases upon this subject are reviewed. There are several assignments of error in this case, but, in the view we take of it, it is unnecessary to notice them. While tbe truth or correctness of tbe
The defendant in error, George E. Buck, sues in his trust capacity, as administrator with the will annexed oí the estate oí T. J. Martin, deceased. It appears from the special findings of fact that his testator, T. J. Martin, and his son-in-law, A. W. Blakemore, -as partners, purchased and held the lands, Martin’s undivided half of which is sued for in this case, as partnership property; that on January 8, 1888, Martin died; that Martin's undivided half of the property was inherited by his daughter, Mrs. Annie M. Blakemore, the wife of A. W. Blakemore; that said Blakemore on April 5, 1890, mortgaged said property to the Colonial & United Btai.es Mortgage Company, Limited; that the mortgage was foreclosed and the property was bought in by the mortgage company in February, 1898; and that Sam Churchill, receiver, held the same at the institution of this suit as the receiver of the United States court of the Western division of the Eastern district of Arkansas, under the decree of which court the mortgage was foreclosed, and the sale had and approved. It further aj)pears from the findings of fact that: A. W. Blakemore, the surviving partner of Martin, took possession of said property upon Martin’s death, and held the same in his exclusive possession from that time until January, 1894. The court further finds that on January 1, 1894, Mrs. A. M. Blakemore took possession of the undivided half of said property. But the court does not find that the said A. W. Blakemore surrendered the lands to his wife; nor does it find that the partnership business of the firm of Martin & Blakemore had ever been settled up, and the debts paid; nor does it find that Mrs. Blakemore was entitled to the possession thereof at any time. It may be remarked in ibis connection that there is no allegation in the complaint that the partnership of Martin & Blakemore was ever settled; and it is affirmatively shown by appropriate allegations in the complaint, which are not denied, and by exhibits thereto, that the probated claims, for the payment of which the administrator of Martin sues to recover this land, are partnership promissory notes executed by the firm of Martin & Blakemore, whereby it affirmatively apjiears that the partnership of Martin & Blakemore has never been settled.
Counsel for defendant in error, in their brief, admit, and cite authorities to show, that which ⅛ a familiar principle, namely, that the surviving partner has the exclusive right of possession, management, and control of the entire property of tiie partnership for the purpose of winding it up. 2 Bates, Parin. § 715, and numerous authorities there cited; Clay v. Freeman, 118 U. S. 97, 6 Sup. Ct. 964, 30 L. Ed. 104; Marlatt v. Scantland, 19 Ark. 443. Therefore A. W. Blakemore, so long as he lived, had the exclusive right to the possession of the jumper ty in controversy for the purpose of settling the affairs of the partnership. Bo far as the court’s special findings of fact are
“Under the usual working of the jus accreseendi, on the death of the last survivor of joint parties his rights and liabilities at law descend upon his legal representatives. Thus, in enforcing partnership claims, the representative of the last surviving partner is the proper plaintiff to collect outstanding accounts. So, in enforcing claims against the partnership, the representative of the last survivor is the proper party. Where both persons die, and the same person is administrator of both, he cannot he sued in his double capacity, nor could the several administrators of each estate he sued. The administrator of the surviving partner is charged with the duty of completing the settlement, not as owner, hut as trustee in possession.”
Dayton v. Bartlett, 38 Ohio St. 367.
It not appearing from the special findings of fact that Blakemore, the surviving partner, had surrendered the land in controversy to his wife, Annie M. Blakemore, or that the partnership of Martin & Blakemore had been settled at the institution of this suit, and it affirmatively appearing from the admissions in the pleadings and the exhibits attached thereto that said partnership had not been settled, it is clear that the administrator of Martin is not entitled to the possession of the lands, and therefore the judgment is not supported by the special findings of the court. The conclusion reached on this point renders it unnecessary to consider other assignments of error. Where, as in this case, the facts found cover all the issues, and are inadequate to support the judgment, the case will not be reversed for a new trial, but there must be a general judgment for the defendants. Ft. Scott v. Hickman, 112 U. S. 150, 164, 165, 5 Sup. Ct. 56, 28 L. Ed. 636; Allen v. Bank, 120 U. S. 20, 40, 7 Sup. Ct. 460, 30 L. Ed. 573. Judgment reversed, and case remanded to the circuit court, with directions to enter judgment for the original defendants.
