56 Tenn. 660 | Tenn. | 1872
delivered the opinion of the Court.
The proof in the record establishes a partnership between C. M. & H. C. Horton.
In the opinion of the writer, the proper holding would be, — upon the death of one of a partnership 'owning realty, — that the interest of the deceased should descend to the heir, and be appropriated to the payment of debts, as other realty of the deceased held in his individual right: — the title thus vesting directly in the heir, without any distinction between such ves-‘titure and that of title to other lands.
It has heretofore been held by this Court, in a similar case, — where a member of a partnership, owning realty, had died, — that the survivor and heirs of the deceased were tenants in common; and that the surviving partner could dispose of the realty as other -assets belonging to the firm. From that opinion the
Under the rule, as it exists, established by the decision of this Court, the sale of the “ Shelby street lot” is valid. "Tis true, the interest of H. C. Horton was limited to such value as his partner might place upon his services; still this was capital in the concern;- and in this way he acquired an interest by deed in the “Shelby street” or “cotton shed lot.” The transfer by H. C. Horton, the surviving partners of C. M. Horton & Co., of the leasehold estate and the other assets of the. firm to Horton, Estes & Co., — of which firm J. B. Sharp, administrator of C. M. Horton, was a member, — is governed by the same rule; but whether-
It is objected that the sale of the “Main street lot,” as it is called in the proceedings, is void for irregularity, and want of material substance.
The decree of sale was made by a Court of competent jurisdiction. We are furnished only with the decree of confirmation, embracing the report of the special commissioner. This decree, abstractly regarded,, is sufficiently full and definite to show that the Court had jurisdiction of the subject matter.
The distinction between this case, and those relied upon to vacate the sale, is, that in each of the reported cases, the party claiming under the decree was affirmatively urging its validity and regularity as a muniment of title; in which attitude the laboring oar was upon him to show step by step, and link by link, the consistency and fulness of the chain of title. Here the complainants affirmatively and offensively attack the proceedings of the Court making the decree of sale; and the burden is upon them to make out their case, and to bring before the Court such parts of the record of the original proceedings as contain the defects alleged, and develop the fatal objection to them.
While the decree in the transcript does not recite many of the facts necessary to authorize the Court to
The complainants have alleged, and the defendants have denied, the insufficiency and irregularity of the proceedings. This reduces it to the question, Where is the onus probandi? Which is of easy solution— The party affirming must, make good his affirmation. The maxim, that all things are presumed to have been done rightly, applies with peculiar pertinence to the proceedings of Courts having jurisdiction of the subject matter of a suit and the relief sought.
To the objection that the lot was sold, leaving slaves, — thus showing that the personalty was not exhausted, — it is sufficient to reply: that, in cases where the interests of minor heirs are involved, Courts of Chancery are empowered to exercise full discretion, under the facts of each particular case, as to which it would be better to preserve to the estate — the personalty or the realty. In such cases, — where the estate is composed of real and personal property, — the Court may order the sale of either, as may appear to the best interest of those concerned. This doctrine was maintained in an MS. opinion, by C. J. Nicholson, delivered during the last term at Nashville.
It is insisted that the sale should be set aside, because Sharp, the administrator of C. M. Horton and the special commissioner to sell, was on4 of the purchasers at his own sale. This is positively denied. Complainants rely upon a trust deed from Sharp, Estes and Crocker to Wm. K. Poston, to the lot, in
The decree is affirmed and the cause remanded for the accounts ordered by the Chancellor.
In the examination of the case we' have had great vexation and annoyance with the illegality, omissions,