68 Ala. 80 | Ala. | 1880
The present suit grew out of an alleged partnership in planting between Samuel D. Morgan, complainant’s intestate, and John G. Morgan, through whom defendants claim. The partnership had its situs and place of business operations in the State of Arkansas, and went into operation in 1860. Samuel D. Morgan resided in North Carolina, and died intestate in 1864. John G. Morgan resided in Arkansas, personally superintended the affairs of the partnership, and died a resident of that State in August, 1875. In 1872, John G. Morgan invested some fourteen thousand dollars in real estate in the city of Tuscaloosa, Alabama, which real estate is the chief subject of controversy in the present suit. Moneys, alleged to be in tire possession of Mrs. Morgan, the widow, are also sought to be subjected to complainant’s claim. The bill avers these were profits and proceeds of the partnership operations in planting, amounting to fifty thousand dollars ; that the said John G. had no other means, or source of income; that he owed to his deceased partner a large sum on partnership accounts, amounting to fifty thousand dollars ; that of the sum. thus realized from partnership operations, after some intermediate adventures, he had purchased and paid for the said real estate in Tuscaloosa; and that the sum in the hands of Mrs. Morgan, the widow, was also part and parcel, of such products and proceeds. The bill was filed September 6th, 1879, and seeks to have a settlement of the partnership account, and a trust fastened on said property to pay. the sum due complainant’s estate. The defenses relied on all center in lapse of time, presented by demurrer and by pleas, in various
Tbe other defense relied on is shown in plea No. 3 of defendant. It sets forth that there was administration granted in Arkansas, on the estate.of John G. Morgan, in August, 1875, and that the claim sued on was never presented or exhibited “in behalf of said complainant, or in behalf of the said Samuel D. Morgan, or his estate, to the administrator of said John G. Morgan as a claim against the estate of said John G.; and no claim or demand, whatsoever, was ever exhibited or presented in behalf of said complainant, or in behalf of the estate of said Samuel D. Morgan, deceased, until his said bill of complaint was filed in this court.” This, it will be observed, was four years. The plea then sets forth the Arkansas statute, which declares that “if such claim be not exhibited within two years from the date of such letters, they shall be forever barred and precluded from any benefit in such estate.” There was a demurrer by defendánt to the bill as amended, assigning as oné ground the failure of the bill to aver presentation of the claim within eighteen months, to the Alabama administrator. This demurrer the Chancellor sustained. There was also a demurrer by complainant to the plea setting up the Arkansas statute of non-claim. This demurrer was overruled by the Chancellor; and complainant declining to take issue, or controvert the facts set up in the plea, the Chancellor dismissed the bill.
In the bill it is averred that complainants did not become cognizant of their rights until shortly before the present suit was commenced, and the bill contains the general charge that John G. Morgan fraudulently invested the partnership moneys in property, including that sought to be condemned in this suit, and that he fraudulently concealed the facts from
The bill in the present case, as we have said, does not aver any act or artifice of concealment resorted to by John G: Morgan. All that is charged against him, so far as the bill informs us, may have been done in the broad light of day, and known and read of all men who took on themselves-the trouble or curiosity to inquire. The family and personal representative of Samuel D. Morgau must have had knowledge of the formation of the partnership, and the nature and extent of it. The bill does not deny such knowledge. They knew when Samuel D. Morgan died, and the law charges-them with knowledge that his death worked a dissolution of the partnership. Why, with this knowledge, and with the further knowledge or belief, as averred in the bill, that all the capital of the firm was put in by Samuel D. Morgan, they slept on their rights, and made no inquiry about these very-valuable interests for near, or quite, fifteen years, is not attempted to be explained. We think the bill wholly fails to-show a case of fraudulent concealment, if that could be adjudged an answer to the defense of non-claim. As a mere-money demand, there can be no question that thé statutes of non-claim, both of this State, and of the State of Arkansas,, are a complete bar to all relief prayed in the present bill. Jones v. Lightfoot, 10 Ala. 17; Fretwell v. McLemore, 52 Ala. 124, 139; McDowell v. Jones, 58 Ala. 25; State Bank v. Walker, 14 Ark. 234.
If it be contended that inasmuch as John G. Morgan, converted the money into property during his lifetime, this is not a suit on a claim or demand for money, but a suit for the-property into which the money was converted, and therefore not within the statute of non-claim, the answer is two-fold. First: the money with which the land was purchased is- not
Affirmed.