Strange v. Graham

56 Ala. 614 | Ala. | 1876

STONE, J.

On the testimony disclosed in.this record, we can not learn that any partnership dealings were had between Gunn & Strange, after the dissolution of the firm in 1867 or 1868, by the election of the latter to the circuit bench. All the testimony bearing on the question shows that, from that time, to the death of Judge Strange — more than six years afterwards — the law books of Gunn & Strange were in the individual possession of Gunn, he claiming and exercising acts of ownership over them. This, in the absence of other proof, operated a bar of all claim by Strange, or his administrator, to share in said books. — Bradford v. Spyker, 32 Ala. 134.

_ 2. There is another reason, why the administrator should not have been charged with half the value of the books, on the evidence before the court. The books were assets of the firm, if the proof showed that Strange owned any interest in them. Gunn had a lien on them, if the firm owed Gunn, or owed other debts, for the payment of which, as between Gunn and Strange, the latter was bound to contribute. Gunn being the survivor, the legal title to the personal assets was cast on him; and the administrator of Strange could recover from him only his interest in the remaining effects, after all the debts of the firm should be paid, and the accounts of the partners inter sese adjusted and settled. — Donelson v. Posey, 13 Ala. 752; Houston v. Stanton, 11 Ala. 412 ; Edgar v. Cook, 4 Ala. 588.

3. While the gift of the lands known as the “ Tate place,” by Gunn and Strange to their sons, may have been a constructive fraud, and inoperative against debts then due from them, the administrator of Strange, as such, had no power to reach and subject such property. Only the creditors of Strange could reach this property.- —Marler v. Marler, 6 Ala. 367; 2 Brick. Dig. 16, § 45.

4. The record shows, that the lands known as the “ Ray place ” were sold under orders of sale issued after the death of Judge Strange, but in continuation of executions regularly kept up from a period anterior to his death. The fact that the sale was thus made after his death, does not avoid the sale. — Hendon v. White, 52 Ala. 597. Nor does the fact that the sale was made under writs of venditioni exponas, and without’giving personal notice of the levy to the defendant, invalidate the sheriff’s sale, when the question, as in this case, is collaterally presented. — 2 Brick. Dig. 458, § 373; Weir v. Clayton, 19 Ala. 132.

5. Benjamin Strange, the administrator, was not a competent witness to prove the terms of the contract, alleged to have been made between him and his intestate, as to the rent of the “ Bay place ” for 1875.—Bev. Code, § 2704, as amended; Acts 1874-5, page 252. He was, however, a competent witness to prove that the two bales of cotton, with which he charged himself in his account current, were on account of rent of that for that if such was the fact.

Bor the errors above pointed out, the judgment of the Probate Court is reversed, and the cause remanded.