47 Ala. 217 | Ala. | 1872
The bill was dismissed, on demurrer, for multifariousness and adequate remedy at law. It charged that the complainant, Monroe, had entered into a partnership in farming with the defendant Hamilton, for the year 186 7. Certain specified expenses were to be borne by each separately, and others were to be incurred on them joint liability. The profits were to be divided equally. Hamilton, being obliged to borrow m'oney to perform his part of the contract, obtained some directly from Monroe, and some irpon a bill of exchange, which Monroe signed as his surety. To secure the repayment of this money, he mortgaged his entire interest in the farming business to his partner, Monroe, under the following stipulations: As soon as the crop was gathered, or in a reasonable time thereafter, Monroe was to take possession of it, and sell it for their mutual benefit; “after the sale, the parties were to settle their partnership liabilities, and divide the net profits into two equal shares; Monroe was to' have his own share absolutely, and was to retain Hamilton’s in trust, and refund himself the money borrowed from him, and pay the bill of exchange, returning the residue, if any, to Hamilton.”
■ It was further charged, that, although Hamilton had paid the bill of exchange, the money due to the complainant was still unpaid, and also the partnership debts for which he was liable. Hamilton, without authority, had sold the
The mortgage was duly recorded, and the transactions complained of occurred subsequently. The prayer of the bill was for an account of the partnership matters, and against the purchasers of the cotton, for an account of its value, and for general relief.
If the complainant has a right to the remedy he has chosen, the defendants should not object because he did not resort to a legal remedy, by which he might have dispossessed them not only of the share of the property he is entitled to, but also of that which they may in this action retain as the share of them vendor. A mortgagee, with a power of sale, may apply at once to a court of equity for a foreclosure of the mortgage. — Anderson v. Hooks, 9 Ala. 704. Chargeable as these purchasers are with the disabilities imposed on their vendor by his mortgage, they still have a claim under, the purchase to his interest in the cotton, subject to its appropriation to the payment of the partnership liabilities and the other debts secured. How can the account, be taken ? how can a multiplicity of suits be avoided, except by a resort to chancery? — Story on Part. §§ 263, 264; 1 Story’s Equity Jur. 676-683; McGown v. Sprague, 23 Ala. 524. The remedy at law is not adequate.
The bill is not multifarious. The defendants have a common interest touching its matter. They are interested in the same claim of right, and the relief asked for in relation to each is of the same general character. — Story’s Eq. Plead. §§ 284, 285; Holman v. Bank of Norfolk, 12 Ala. 369-409.
The decree is reversed, and the cause remanded.