108 Ala. 632 | Ala. | 1895
>The cotton alleged to hare been converted by the defendants belonged to the partnership of Cox, Taylor & Co., composed of three persons, and consisted of profits or accretions accruing in the prosecution of the partnership business, to-wit, in tolls received, in the operation of a cotton ginnery, by the partnership. Before this toll cotton came in esse, and in possession of the partnership, Cox, one of the partners, to secure an individual debt, executed to the plaintiff, a mortgage on his undivided one-third interest in the mill machinery, &c., and the toll cotton to be earned during the year. After the cotton (four bales) was earned and in possession of the partnership, it, the partnership, appropriated it to legitimate purposes of its business, by exchanging it, with the defendants, for bagging and ties to be used in carrying on its business. The plaintiff’s mortgage was recorded in the proper county before this exchange occurred. The cotton weighed 500 pounds per bale and was worth 7i to 8 cents per pound. The defendants were merchants engaged in the general mercantile business in Oneonta, Blount county, Alabama. The plaintiff now sues the defendants, in two counts, one, trover, for the conversion of an undivided one-third interest in the cotton, and the other case, for destroying his lien upon, or equitable interest in, an undivided one-third interest therein. It is plain the action cannot be maintained. Cox had no separate and exclusive right, for his own uses and purposes, to the possession of the partnership property, or any interest therein, and he could confer none upon a purchaser or mortgagee from him ; and no act of his, in his individual dealings, on his own individual account, could deprive the partnership of its right to use, administer and appropriate the partnership property, in any legitimate way, within the scope of the partnership business. Whilst it is true, that in a court of law, administering strictly legal remedies, the legal title to partnership property is deemed to be in the individuals composing the partnership, very much as tenants in common are entitled, yet, in equity, the only interests of the partners, as individuals, are in what remains after dissolution, the payment of all partnership liabilities, and the final settlement and adjustment of the rights and equities of the partners among themselves. A purchaser or mortgagee from or of a partner, on his indi
There was no necessity for a special plea. The complaint contains nothing which needs confession and avoidance. A general traverse puts in issue the vendible or mortgageable interest of Cox in the property described, and his right to the immediate possession, in the character in which he acted when he executed the mortgage, when the property should come in esse; and it being determined, upon the proof, that he had no such interest and right of possession, the plaintiff acquired none from him.
The rulings of the Circuit Court were in harmony with our views, and its judgment is affirmed.
