Davis v. Davis

| Miss. | Jul 1, 1886

Opinion.

Cooper, C. J.,

delivered the opinion of the court:

The bill in this case charges that a partnership was formed between the complainant and defendant in the year 1876 for the purpose of conducting a planting business upon certain lands owned by the partners as tenants in common; that the firm was dissolved in 1881 and that the defendant continued to rent or cultivate the common lands during the years 1881, 1882, 1883, and 1884, using in the cultivation of the place certain personal, property belonging to the firm, and also that the defendant had sold a large portion of the personalty, converting the proceeds to his own use.

There is no allegation in the bill that there were no firm debts contracted and paid from the proceeds of the crops grown during the partnership, the only allegation being that there are now no firm debts.

The complainant sets forth in detail the quantities of crops raised or received as rents by the firm during the term of partnership from the lands held by the partners as tenants in common, and its object seemed to be to compel the defendant to pay over to the complainant one-half of these crops. There is no prayer for a partnership account; on the contrary, the evident purpose is to recover one-half of all the crops which have been received by the firm because the complainant was tenant in common of the lands on which the partnership business was conducted, and then to recover from the defendant one-half of the crops raised by him since the dissolution of the firm on the ground that he was bailiff to the complainant.

The bill was not maintained as one to settle partnership accounts because it was manifestly not filed for that purpose. The complainant cannot, as tenant in common of the lands, recover from his partner one-half, or any other portion of the crops received by the firm, for the reason that the firm was authorized to *251receive them and what portion of the proceeds belonged to complainant can only be determined upon a settlement of the partnership accounts. His rights as to these crops are determinable by his rights as partner and not as tenant in common. Nor can the bill be maintained as that of one tenant in common against another as to the rents received after the termination of the partnership, because there is no allegation in the bill that the lands cultivated by the defendant or rented by him exceeded his proportion of the common lands. For these reasons the bill was properly dismissed. But since it appears that the defendant' interposed, among other defenses, that of the Statute of Limitations, a decree dismissing the bill generally might be held as res ad judicata in another suit. We think the dismissal should have been without prejudice.

The decree will be reversed only for the purpose of so dismissing the bill. The costs of this court and the court below to be paid by the appellant.