Dickens v. Dickens, 45 So. 630

Dickens v. Dickens

45 So. 630 | Ala. | 1908

McCLELLAN, J.

The bill is exhibited by a distributee oí the estate of a deceased member of a copartnership against the surviving partner, who is also the administrator of the estate of the intestate, and prays the removal of the estate for administration from the probate into the chancery court of Mobile county, the removal of the administrator for causes averred, and for an accounting in the premises by the surviving partner in respect of his acts and doings in performance of the trust involved in the winding up of the dissolved (by death) copartnership, and also that injunctive process issued to conserve the interests of all parties in the assets of the concern, and that a receiver be appointed to take charge of such assets. The bill is, patently, not without equity. — Greenhood v. Greenhood, 143 Ala. 442, 39 South. 299.

The only question presented for our decision arises over the appointment, without notice, of the receiver sought. Summarized, without detracting from its force in allegation, the bill states a case against Charles C. Dickens, surviving partner, of misappropriation and personal sequestration of the assets of the copartnership nominated the “English Manufacturing Company,” in violation of his duty to wind up the business of the co-partnership thus dissolved without delay, and with due regard for the interests of those entitled to the proceeds of the trust estate. He is charged with the withdrawal of a. vast amount of the assets of the concern, with converting a large part thereof into corporate bonds, which he has deposited in safety boxes among his personal effects and claims as his own, and with raising a bank account in his individual name upon appropriated funds rightfully belonging to the trust in his care.

The general rules of law .governing the propriety of the creation of receiverships is well stated in the recent *444case of Hayes v. Jasper Land Co., 147 Ala. 340, 41 South. 909, where our adjudications are, largely, collected. Indeed, in this instance, there is really no serious controversy as to the law in tile premises, though there is earnest conflict between the solicitors as to its application to the facts set forth in the bill. No power possessed by a court of equity is more circumscribed, for appropriate exercise, by expressed judicial limitation than that of appointing receivers; and the extremity of the given case that will warrant the creation of a receivership, without notice to the party whose possession of the property is to be affected by the receive)*, if appointed, has been often defined and in the strongest language. We see no occasion to again collate the authorities, numbers of- which are to be found in the briefs of solicitors in the cause. Nor is it necessary, in the light of repeated adjudication, to do more than state that the surviving partner is exclusively entitled to the possession, management, and control of the properties of the dissolved copartnership and to be called to account only by the personal representative of his deceased partner, unless special circumstances and conditions are shown that will justify the intervention by a court of equity to protect and enforce the rights of persons interested in assets of the dissolved copartnership. — Davis v. Sowell, 77 Ala. 262; Blackburn v. Fitzgerald, 130 Ala. 584, 30 South. 568. We are of the opinion that the matter set forth in the bill did not warrant the chancellor in appointing a receiver. •

In Warren v. Pitts, 114 Ala. 65, 21 South. 494, through Brickell, O. J., it is said: “The solvency or insolvency of the party to be affected is an important consideration with a court of equity, in all cases guiding, if it does not govern, its discretion in the appointment of receivers.” The bill here does not negative the solvency *445of diarios (\ Dickens, and it is mathematically deducible from its averments that he owns real estate of sufficient value to satisfy any demand that the allegations of the bill charge as a probably existing liability against him by reason of his conduct in respect of the trust falling into his hands for administration; and, besides, it further appears that of the aggregate net assets of the copartnership he will be entitled to one-third. But the complainant insists, and. a favorable construction is given these allegations, that Charles C. Dickens has attempted and will continue to attempt to convert his realty and other properties, as well as the properties of the copartnership, into portable values, so that the whole may be readily concealed, or else removed without the jurisdiction of the court. It appears from the bill that the alleged purpose to sell the real estate had not been accomplished when the bill was filed. This charge of a merely apprehended fraudulent purpose on the part of Dickens with respect to his own properties is supported by averments manifestly vague and indefinite and the product of an averred anxiety, to reasonably justify Avlxich sufficient facts and circumstances do not appear from the bill. It would be harsh indeed to take from a solvent surviving partner the property to the possession of which he is ordinarily entitled and in Avhich he has a substantial interest on an allegation that the complainant merely apprehended that his purpose was to convert his personal assets into properties easily concealed from the operation of the court’s processes or to remove them without the court’s jurisdiction. The fact, alone, that he had made an effort to dispose of a large and valuable tract of land, obviously does not- tend to shoAv an unlaAVful purpose in the premises. Such action, Avhatever the vieAA^point here, is just as consistent Avith righteous motives as it is inconsistent themvith; and the complain*446ant, by simply drawing from the effort to sell her conclusion that the purpose therein was to remove his property beyond the reach of the court, cannot, without more particular allegation of facts and circumstances, give unlawful color to this action on Dickens’ part.

The case, then, is one where, on the face of the bill, a solvent surviving partner has systematically breached his duty in the premises and appropriated to his own use a large part of the assets of the concern, and the general assertion, the anticipation arising from his past misconduct, that the interest of the complainant will suffer if Dickens is left in uncontrolled charge of the assets of the late firm. Ás indicated, the solvency of Dickens, which is not denied by the bill, will amply protect the complainant against loss because of the previous (to the filing' of the bill ) misconduct of Dickens in respect of the trust properties. And we entertain no doubt but that tht chancery court, having assumed, as it should, jurisdiction of the estate of James O. Dickens, deceased, an asset of which, subject to lawful liabilities, his interest in the English Manufacturing Company is, has abundant power to exercise surveillance over the surviving partner’s future administration of the trust in his hands, to the end that the trust fund may be free from misappropriation. Accordingly, the order constituting the receivership is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.