65 F. 450 | U.S. Circuit Court for the District of Western Missouri | 1895
Complainants liare filed exceptions to the answer herein, which, for the purpose of consideration, will be grouped together in respect of their materiality.
t. It is objected that, the answer is not signed by the defendant. This has been obviated by affixing the signature of defendant by leave of court.
2. It is objected that the answer conjoins matter of defense with matter in the nature of a plea in bar, and the same is not verified •by proper certificate of counsel. Under rule 39 of practice in equity, a defendant, is entitled in Ms answer to insist, upon all matters of defense in bar, or to the merits of the bill. Waiving tfie question as to whether an answer thus containing matter in bar with the merits should be treated as of the nature of a dilatory plea, counsel for defendant, by leave of court, have appended to the answer the formal certificate required by rule 31.
3. It is objected that, the answer does not specifically deny or admit whether or not the? oratrix Sarah H. Lloyd is the widow, and the orators Tyree and William Lloyd are tlie heirs, of Elijah Lloyd, deceased, The answer denies every allegation of the bill not expressly admitted to be true. This form of pleading is of questionable admissibility, even in a law action. Long v. Long, 79 Mo. 649. In equity pleading, designed to search out the conscience of the party, and to put him. to the very truth of the matter, all semblance of double and evasive pleading should be avoided, so as not to leave the adversary to seek out through the whole body of the pleading, and determine at his peril, precisely what is intended to be admitted and- what controverted. Specific and direct denials or admissions not only tend to define and sharpen the issues, but better enable
4. The remaining exceptions, stripped of all specialty and technicality, depend for their disposition upon the single question whether or not the matters and things pleaded over in the answer constitute any bar to complainants’ right to the relief sought in the bill. The theory and gravamen of the bill is that one Elijah Lloyd, late husband of the oratrix and father of the orators Tyree and William Lloyd, died intestate in 1892, seised of the undivided one-half‘interest in certain lands situate in Jasper county, this state, and that the respondent, Guinn, is the owner of the other undivided one-half interest in said lands. After alleging the occupancy and use of said lands, and the reception of the rents and profits thereof, by the respondent, the bill seeks to have the lands partitioned, and the widow’s dower assigned, and for an accounting against the respondent. The answer denies generally these averments of the bill, and then pleads affirmatively the substantive facts following, to wit: That in 1874, and prior thereto, the respondent was the owner in fee of said land. That at said time said lands were believed by respondent and said Elijah Lloyd to be mineral lands of great value; and that thereupon they formed a copartnership, under the firm náme of Guinn & Lloyd, for the purpose of prospecting for mineral ores, and developing the same, and conducting mining operations thereon; and to that end entered into articles of copartnership, the principal provisions whereof are that the lands should be examined and prospected, and, in case valuable minerals were found, the same should be mined, and the product marketed. That said Lloyd was to make such examination, and give his personal attention thereto, the exj>enses, losses, and profits connected therewith to be equally shared between them, and securing to said Lloyd the right to purchase of respondent the one-half interest thereunder at any time daring the existence of the partnership, by paying therefor such portion of the sum of $6,000 (the original price paid therefor by respondent) as should be equal to the portion of the interest in said land purchased by Lloyd, the sum so to be paid by Lloyd to draw interest at the rate of 10 per cent, per annum from the date of respondent’s purchase of said land until the same should be paid by said Lloyd. It is further provided that whenever the profits arising from mining operations and the sale, of part of the land should amount to the sum of $6,000, and be received by Guinn, together with 10 per cent, interest as aforesaid, then the said Lloyd should become owner of an undivided one-half interest in the lands remaining unsold; whereby it is averred the land became partnership property, respondent putting the ‘land into the partnership, and the said Lloyd putting in his personal serv
The question, therefore, is, conceding these facts as pleaded, are the complainants entitled to proceed in partition of the lands, and for an accounting of the rents and profits thereof, .against, this respondent? If the lands were partnership property on the deairh of Lloyd, one of the partners, the right of possession, dominion, and management thereof devolved upon respondent as such surviving partner, for the purpose of administering and winding up the partnership affairs. In contemplation of law, the realty for this purpose is personal property and partnership assets. Its primary liability in his hands is for the debts’ of the copartnership. To this end respondent is entitled to the usufruct thereof, for the purpose of paying-off partnership debts; and he may sell and dispose of such real estate, if necessary to such end. Easton v. Courtwriglit, 84 Mo. 27; Hollman v. Nance, Id. 674; Duryea v. Burt, 28 Cal. 569. The surviving partner who has advanced-moneys for the use and benefit cf the partnership, or for the benefit of the estate, is a creditor of the estate therefor, and is entitled to a lien on the partnership properly for recompense. Priest v. Chouteau, 85 Mo. 398-406, Willett v. Brown, 65 Mo. 138. Until such administration is closed by discharge of the partnership debts, the possession of the partnership realty by the surviving partner is adverse to and exclusive of the heir at law, and hence suit in partition will not lie. Holmes v. McGee, 27 Mo. 597; Priest v. Chouteau, 85 Mo. 407; 2 Bates, Partn. 971 et seq.; 1 Woerner, Adm’n, § 126. Nor does the widow’s dower attach to the deceased husband’s interest until after the partnership debts are discharged. Authorities supra. In view of the state of the law, it' is not essential that the court should discuss the extent of respondent’s interest in the land, or the relative equities of the partners respecting the same. That question cannot be determined in a partition suit, if the lands' were partnership property, and the partner is holding the same as surviving partner for the purposes of adjusting the partnership liabilities. Nor is it necessary for the court to undertake to determine the question, mooted by counsel, as to whether the fact that respondent, as surviving- partner, has given bond to the probate court of the county where the land lies, and is accounting thereon, as surviving partner, administering the partnership estate, to the probate court, has the effect to preclude a court of chancery from entertaining a bill in equity for the adjustment of the partnership estate. The bill in question is not framed on the