Ogletree v. Rainer , 152 Ala. 467 ( 1907 )

HARALSON, J.

We classify the assignments of error as appellants have done in brief, those numbered 13, 14, 15, 16, 35, 86, and 38, being grouped and considered together. These grounds of demurrer sought to-raise the question of the statute of limitations and staleness of demand against the claim of complainants. The contention of defendants, to employ the language of' their brief, is: “The bill shows upon its face that the-cause of action accrued in the year 1884, if there is a. cause of action, and the long delay in bringing the suit is not accounted for, nor is there any attempt to explain it away.”

The reply on the other side is, that the title under-which complainants claim, is the equitable title. They have been in peaceable possession for a long time, being considered for the purposes of this suit, as having been in possession ever since the sale of the property by the-surviving partner. Their possession was notice to all, of their rights and claims, and it was really not necessary for such a claimant to assert his rights until they were attacked, and that complainants in this court, assert that they have the legal title invested in them.

In 18 Am. & Eng. Ency. Law (2d Ed.) 125, it is stated, supported by reference to many decisions from many states, that “laches will not be imputed to one in peaceable possession of property for delay in resorting to a court of equity, to establish his right to the legal title. The possession is notice to all of the possessor’s-equitable rights, and he need only to assert them when he may find occasion to do so.” — Harold v. Weaver, 72 Ala. 373. These grounds were, therefore, unavailing..

The next grounds of demurrer are those numbered 24, 25, 26 and 27.

Other grounds insisted on raise the question that, there is nothing in the bill and exhibits to show that John W. Beall and his wife, Susan, át the time they signed the deed for the sale of the lands, intended to convey any interest other than what they as individuals owned; that the deed is not executed by John W. Beall, as surviving partner of the firm of Beall & Son, and it cannot he gathered from the contract that either of said parties ever contemplated conveying the interest of S. P. Beall, deceased, the senior member of said firm, in said lands which belonged to said partnership. Or, to state it differently, whether the bill should have averred, any necessity for the sale of the lands at the time they were sold by John W. Beall, for the purpose of paying the debts of the partnership, or does it rest on complainants to show that John W. Beall, the surviving partner, could not have paid the debts of the firm in any other manner than by selling the real estate, or that the personal property was exhausted at that time.

The principle is well settled, in the absence of an agreement in the partnership articles to the contrary, that, upon the death of one of the partners, the title to real estate belonging to the partnership vests in the heir, but it may be subjected by creditors to the payment of partnership debts, or sold by the surviving partner for the purpose of paying such debts, provided the personal assets of the partnership are insufficient for that purpose. Where this is the condition of the partnership business, a deed made by the surviving partner to pay partnership debts, will convey the equitable title, and upon averment and proof of these facts, the legal title may be divested out of the heir, and invested in the purchaser.

The bill in this case fails to aver the insufficiency of personal assets, to pay the partnership debts.

The burden being upon the complainants of showing that they acquired an equitable title to the lands, it was necessary that the bill should aver the insufficiency of personal assets. It follows, therefore, that the grounds. of demurrer pointing out this defect in tbe bill should have been sustained. — Davis v. Smith, 82 Ala. 203, 2 South. 897; Lang v. Waring, 25 Ala. 641, 60 Am. Dec. 533; Murphy v. Abrams, 50 Ala. 295; Parsons on Partnership (4th Ed.) p. 365, § 276.

The decree appealed from is reversed, and a decree will be here rendered sustaining the demurrer to the bill.

Reversed and rendered.

Tyson, C. J., and Simpson and Denson, JJ., concur.