Peirce v. Halsell

43 So. 83 | Miss. | 1907

Calhoon, J.,

delivered the opinion of the court.

In a proceeding for partition, recognizing Peirce as the owner of a two-sevenths interest, Peirce, in his answer to Halsell’s bill for the partition, set up that he was a full partner in the part in which he was not so recognized, averring that the understanding was he was to be such partner, for reasons given, though the title was to be put in Halsell’s name. His answer also avers that he does not know the exact amount he owed Halsell for the purchase price, but that he stood ready and willing to pay it, and had offered to do so. In his testimony he repeats this. Halsell in his evidence denies the partnership and the offer. In the final decree the court below finds: “That, although the allegations of E. D. Peirce as to the existence of a partnership between himself and complainant may be sustained-by the weight of evidence, yet it also appears that Peirce failed to pay Iialsell such part of the purchase money of said lands as he should have paid as an equal partner, and has failed to make and maintain legal tender of the same. Therefore he is not now entitled to a one-half interest.” In a ease like this payment of money into court is not necessary, and the decree went off on what we think an erroneous idea.

All that is left is whether there was a partnership, and this is not decided. As we are only a revisory court, we do not decide what was expressly pretermitted in the decision of the chancery court, and therefore, while we must reverse, we remand for full adjudication.

Reversed and remanded.