35 Ga. 84 | Ga. | 1866
The Court seems to have put its j udgment refusing this application, upon the ground, “ That the proporty for partition is the subject of a partnership, which had not yet been dissolved nor expired;” and this would have been sufficient, under the law as it stood before the adoption of the Code. The parties would have been compelled, first, to go into Equity, and obtain a decree for a dissolution of the partnership, and then apply for a partition of the mill property. But it is not so now, and it will require time for the profession to wake up so as to comprehend properly the full meaning of the Code, its length and breadth, height and depth. Eor this purpose let us cite some of its sections.
Section 3014 provides, a That Equity j urisdiction is established and allowed, for the protection and relief of parties, where, from any peculiar circumstances, the operation
Section 3016: “No suitor, however, is compelled to appear on the equity side of the Court, but he may institute his proceeding for an equitable cause of action upon the common law side of the Court at his option, and the Court may allow the jury to find a verdict, and a judgment be rendered thereon, so moulded and framed to give equitable relief in the case, as verdicts and decrees are rendered and framed in equity proceedings.”
It was said that every line in the Statute of Frauds was worth a subsidy. This section alone is far more deserving that eulogy, and it cannot be retorted to the latter, as it was of the former, that every line in it had cost the English peo pie a subsidy in its construction.
Yet this great section was defeated for more than twenty years after its first introduction, the last time before its adoption in the Code, by a prominent Senator in the Legislature, • now no more.
Section 3903, provides, that “ whenever application is made for partition of lands and tenements, as hereinbefore provided for, and either of the parties in interest shall make it satisfactorily appear to the Court that a fair and equitable division of the lands and tenements cannot be made by means of metes and bounds, by reason of improvements made thereon, or by reason of the premises being valuable for mining ¿purposes, or for the erection of mills or other machinery, or that the value of the entire lands and tenements will be depreciated by the partition applied for, then and in that case the Court shall order a sale of such lands and tenements, and shall appoint three discreet persons to conduct such sale, under such regulations, and upon such just and equitable terms as said Court may prescribe; which sale shall take place on the first Tuesday in the month, at the Court House of the county in which the land is situated, after an advertisement of such sale in some public gazette of this State for afe least thirty days.”
There is, therefore, no want of jurisdiction in the common law Court,' to adjudicate this controversy. Is the Judge right in holding, that the time not having expired limited by the terms of partnership, that the property is not subject to partition?
Notwithstanding the timé has not elapsed limited by the articles of partnership, still there are many causes which may arise that will justify a dissolution. These are mentioned in all the books on the law of partnerships. I will not enumerate them. From the facts contained in the mutual altercations between these parties, the partnership is already dissolved, and the only question really is, how to make a proper disposition and division of the partnership effects between the several owners. Common reason teaches any man that the objects of this association have become impracticable, and that its further continuance can be productive of nothing else than serious loss and injury to some of the parties. By the destruction of the mill property by fire, caused by the Federal army, the want of means, from the emancipation of slave property, the taking and carrying away of the teams, &c., the men of means in the concern have been so impoverished and crippled that what remains of their property is hardly sufficient for sustenance, and cannot be rendered profitable if directed to this enterprise. Jackson, who was looked to mainly to supply capital, or its equivalent in labor, when this partnership was entered into, by misfortune, without fault on his part, has become unable to carry on the business without loss, instead of the profits
But I will not extend these remarks. We are quite clear that if the partnership be not already dissolved, it should be declared so by the judgment of the Court.
What, then, is to be done with the partnership effects under this application, bearing in mind that the party shall not be forced into equity, but the Court is so to frame its proceedings and order as to meet the exigency of the case ?
Let the case be reinstated, and the Judge appoint commissioners to partition by sale the whole property belonging to the partners ; that they be authorized to hear testimony as to the state of the accounts between the partners as to the property, and report back in writing to the Superior Court of Wilkinson county, together with a statement of the debts and liabilities of the copartnership, the said report, or any part of it, to be allowed or disallowed by the Court. That the Judge cause a special jury to be empanneled for this purpose who shall, by their verdict, assign to each partner such share of the money brought into Court from such sale as he is equitably entitled to, and find that said partnership as to the mill property shall be thence entirely dissolved, and that the Judge shall, upon such finding, so mould the judgment in the case as to cover all matters of controversy which were involved in said partnership.
If, in carrying out these instructions, difficulties may occur not anticipated by the Court, the Judge may, in his own discretion, enlarge his orders so as to meet and obviate them.
Judgment reversed.
