121 Ga. 386 | Ga. | 1904
W. H. Hartnett sued John E. Stillwell, as administrator of J. D. George, to recover five hundred dollars alleged to be.due by reason of the following facts: Petitioner and J. D. George composed the firm of George & Hartnett. Among the assets of the firm were two lots of land in the city of Griffin, one known as the White place and the other being a vacant lot on Solomon street. George died, and Stillwell became his administrator, and, as such, sold a one-half interest in the White place and the vacant lot, as belonging to his intestate, and collected the proceeds, amounting to $455.90. The firm was insolvent at the time of George’s death, and the firm assets in the hands of petitioner as surviving partner are insufficient to pay the partnership debts. The proceeds of the property sold by Stillwell ás administrator of the deceased partner should be paid over to petitioner to be applied to the payment of debts of the firm. The defendant in his plea denied the substantial averments of the petition; and the case was referred to an auditor. When the- case came on to be heard before the auditor, the defendant filed a demurrer to the petition and moved to^, dismiss the same, because no cause of action was set out. The demurrer was sustained by the auditor, and he so reported. Afterwards evidence was submitted before the auditor, and the uncontradicted evidence established the following facts: George and Hartnett were partners, doing a general merchandise business, and in the course of their business purchased a house and lot from W. R. and M. J. White, paying therefor with partnership assets and procuring the deed to be made to
The plaintiff’s theory is that a surviving partner has a lien on the fund in the hands of an administrator of a deceased partner, arising from a sale by the administrator of the interest of the deceased partner in partnership property. Under the undisputed facts as found by the auditor, the plaintiff neither had a lien on the proceeds of the sale of the deceased partner’s interest in the lands sold by his administrator, nor was the plaintiff entitled to recover such proceeds on any legal or equitable ground. Real estate received in payment of a partnership debt, whether the title be taken to the individuals composing the partnership or to the partnership, is to be considered at law as the property of the partners as tenants in common, subject, however, to be sold and the proceeds thereof brought into the partnership fund for the payment of partnership debts and the settlement of balances as between the partners. Burnside v. Merrick, 4 Met. 537; Dyer v.
The title to the White lot was taken to the members of the partnership in their individual names as tenants in common. The deed did not disclose that it was partnership property or that it was purchased with partnership funds. An innocent purchaser at.the administrator’s sale would have acquired a good title as against the surviving partner, because the doctrine, of caveat i emptor does not extend to secret equities. Thus it was held in Johnson v. Equitable Co., 114 Ga. 604, that “a bona fide purchaser at a sheriff’s sale, who has paid the purchase-money.without notice of an equity, will be protected against the same.” If the purchaser of the White lot had been an innocent purchaser without notice of the partnership claim on the land, the purchase-money would be substituted for the land, and the administrator of the deceased partner would be liable to account to the surviving partner for the same. But the record discloses that the surviving • partner was himself the purchaser. He wafe charged with knowledge of the nature of the title and the interest the partnership ■ had in the land, and, by- suffering it to be sold as the -property of his deceased partner’s estate and becoming the purchaser at that sale, he is estopped from now claiming the proceeds as partnership property.
There being no conflict in the evidence, the conclusion of. the auditor that the plaintiff was not entitled to recover was right, and' the court did' not err in dismissing the exceptions to his. report'and making'the report the judgment of the court.
' Judgment affirmed.