Stammers v. McNaughten

STONE, J. 1. Not to notice several averments of fact both in the original and cross-bills, which are- not admitted in the answers of the adults, it can not be overlooked that to each of those bills the infant children of Mr. Streater are parties; for these infants’ answers were put in by their guardian ad litem, denying the averments of the bill and cross-bill, as it was his duty to do. The title to the real estate in controversy was mainly in those minors, and each bill sought to divest them of their title. Before this could be lawfully done, the material averments of the bills should have been [281] proved. Yet, there is neither proof nor a note of the testimony in this record. In fact, no proof — not even the documentary — appears to have been offered. This error, although not specially assigned, is fundamental, and we can not overlook it. 2. The rights of the several parties are so presented, that we feel at a loss in simply intimating an opinion on their priorities. The McNaughten claim appears to be the first lien. Tyson and Gordon dp not so set forth their claim as to constitute themselves purchasers.—See Wells v. Morrow, 38 Ala. 125. 3. Stammers & Stephens can not, in their cross-bill to this suit, settle their partnership dealings with Streater’s • estate; but they can put in issue and try so much of their .partnership dealing — even the whole of them, if necessary— for the purpose of showing how much they, as surviving partners, are entitled to receive of the debt due them as builders and material-men. This, however, must be on proper averments, showing that Streater is indebted to the partnership on partnership accounts. Reversed and remanded.