Purvis v. Johnson , 163 Ga. 698 ( 1927 )

Hill, J.

1. The petition set forth a cause of action, and the court below did not err in overruling the general demurrer. Civil Code (1910), §§ 3176, 3177, 3188; Roach v. Roach, 143 Ga. 886 (85 S. E. 703). The grounds of special demurrer are without merit.

2. “The surviving partner, in ease of death, has the right to control the assets of the firm, to the exclusion of the legal representatives of the deceased partner, and he is primarily liable to the creditors of the firm for their debts.” Civil Code (1910), § 3176.

3. After the dissolution of a partnership by death of one of the partners, the statute of limitations does not commence to run in favor of the surviving partner against the estate of the deceased partner as long as there are debts due by the partnership to be paid, or debts due it to be collected, or until a sufficient time has elapsed since the dissolution of the firm to raise the presumption that all debts due from the partnership have been paid, and that all debts due to it have been collected. Hammond v. Hammond, 20 Ga. 556; Prentice v. Elliott, 72 Ga. 154. Where a partnership was dissolved by the death of a member in 1911, and no administration was taken out upon the estate of such deceased partner until November, 1925, a suit brought by such administrator on January 22, 1926, against the surviving partner, for an accounting for the personal assets of the partnership, was barred by the statute of limitations. It will be presumed that, before the expiration of a period of nine years, all debts due by the firm had been paid and those due to the firm had been collected; and tolling from the statute of limitations the five years allowed for the taking out of administration upon the estate of the deceased partner, the suit as to an accounting for the personal assets of the partnership, which was not brought within four years of the expiration of the five-year period, was barred. Roach v. Roach, supra.

No. 5503. Eebbtjaby 16, 1927.

4. Where lands were bought by a member of a partnership with money belonging to the firm, and the legal title thereto was taken in the name of only one member, an implied trust arose in favor of the other partner, who became equitable owners, and tenants in common, of such land. Black v. Black, 15 Ga. 445 (3), 449; Cottle v. Harrold, 72 Ga. 830; Roach v. Roach, supra.

5. There can be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession. Civil Code (1910), § 3725. Prescription does not run against an unrepresented estate until representation, provided the lapse does not exceed five years. § 4175. It not appearing from the allegations of the petition that the surviving partner held lands so purchased with funds of the partnership, and with title taken in his own name, adversely to the deceased eotenant or her heirs at law, and it being alleged that the surviving partner continued to operate the business as such, and recognized his deceased partner as having an interest therein, and the administrator of the deceased partner having brought his action to enforce the implied trust in favor of his intestate in such lands so bought by the surviving partner with money of the firm, who took the title thereto in his own name, we can not hold as matter of -law, that the action was barred by prescription, by the statute of limitations, or by laches, although it was not brought until after the expiration of fourteen years from the death of the deceased partner. Lane v. Lane, 87 Ga. 268 (2) (13 S. E. 335). Roach v. Roach, supra. Where the petition does not show on its face that it is barred by the statute of limitations, or that prescription has run in favoro of the defendant, such questions must be raised by plea, and not demurrer. Thornton v. Jackson, 129 Ga. 700, 704 (59 S. E. 905) ; Powell v. McKinney, 151 Ga. 803, 810 (108 S. E. 231).

6. It not appearing from the petition, which set out a cause of action, that prescription had run in favor of the defendant as to the lands in which he had invested the funds of the partnership, and which were owned by him and his deceased partner as equitable tenants in common, the trial judge properly overruled the demurrer which went to the whole petition. Judgment affirmed.

All the Justices concur. J. E. Chapman and Arnold & Battle, for plaintiff in error. Wallis & Fort and Hatcher & Hatcher, contra.