52 Ala. 167 | Ala. | 1875
Real estate purchased by partners for the partnership business, and 'with partnership funds, becomes partnership property ; and it is not material in what manner it is bought, nor in what name it stands. It will make no difference that the title is in the deceased partner alone, for his heirs will be considered trustees for the survivor. Nor is it necessary that the trust should be expressed, for a court of equity will always supply this want, and treat the ownership as a distinct trust, if only the trust exist and is capable of proof and the land be in fact and substance partnership property. This doctrine rests, as has been said, on the broad foundation of a resulting trust. Parsons on Partnership, 363-4-5 ; Pugh v. Currie, 5 Ala. 446 ; Owens v. Collins & Langworthy, 23 Ala. 837.
The bill in the present case seems to have been framed with a view to the law as it is above stated, and is not without equity; but it is repugnant in some of its allegations, and we think deficient for the want of others. In the first paragraph it is averred that the copartnership was formed on or about the seventh day of October, 1866, and that each partner at that time contributed as capital stock of the firm the amounts respectively as shown by Exhibit A. to the bill. The exhibit referred to does not show that any such contribution was made by either party at the time as stated, but consists only of a statement, in figures, of various sums of money as having been contributed by the parties respectively, during a series of years commencing in 1867 and ending in 1871. Thus there is a repugnancy between the allegations and the exhibit.
The contract or agreement for the formation of the copartnership, with its terms and conditions, should have been set forth in the bill, so that it might be seen from the facts averred, whether a copartnership was really formed or not. This was not done; nor is it sufficiently shown by the bill that there was such an understanding or agreement between the parties, before the purchase of the land, as that when purchased it should be partnership property ; nor is it distinctly shown that it was purchased with partnership funds. It is a matter of doubt too,
The bill, perhaps, might have been perfected in the court below by appropriate amendments; but it does not appear that any effort was made to avoid the dismissal of the bill by having appropriate amendments allowed, and we must presume that the complainant did not desire to amend after the demurrer was sustained. Such presumption is indulged when a demurrer to a bill is sustained for the want of proper parties, and we can see no good reason why it should not obtain when a demurrer is sustained for any defect which can be cured by an amendment. Singleton v. Gayle, 8 Porter, 270 ; Goodman v. Benham, 16 Ala. 625; Andrews v. Hobson's Adm'r, 23 Ala. 219.
But we think the practice in the chancery court in such case should be, not to dismiss the bill without first allowing an opportunity to amend; such a practice would best comport with the spirit of our liberal statute of amendments.
The decree of the chancery court dismissing the bill without prejudice is affirmed; and the appellant must pay the costs of this court and of the court below.