Wood v. Montgomery

STONE, J. While a title to real estate, made to a partnership, will, in some circumstances, be treated as partnership assets in a court of equity, in a court of law the members of the partnership hold such real estate only as tenants in common.—Henry v. Parmer, at last term; 2 Brick. Dig. 303, § 55; Lang v. Waring, 25 Ala. 625. 2. In eases where there has not been a joint letting of lands held by tenants in common, either tenant may maintain a separate action for his proportion of the sum due for use and occupation, or for a trespass or wrong done to the freehold or possession.—2 Brick. Dig. 340, §§ 165, 168, 169; 1 Chitty’s Pl. 65, 191. 3. The land, or lot, for the occupation of which the present action was brought, was purchased at executor’s sale, made under an order of the Probate Court. The sale was reported by the executor to the Probate Court, and the sale confirmed. The sale was on credit. Subsequently the executor made conveyance of title' to G-. W. & R. B. Montgomery, reciting in the deed that the purchase-money had been paid. It is contended for appellant, that, inasmuch as there was no report made that the purchase-money had been paid, and no order of the Probate Court, directing title to be made, the executor’s deed did not vest title in the purchasers, but left it in the heirs. We think this argument unsound. Should a conveyance be made when the purchase504 money has not been paid, we will not say those interested in the estate, as distributees or creditors, could not, if need be, have redress. That is not this case. Here, a stranger, having no visible interest in the estate, seeks, in a collateral proceeding, to defeat the operation of the deed. Not because the purchase-money had not been paid. That is neither proved nor averred. The recital in the deed admits payment, and thus estops the executor to deny it. The sole ground is, that the executor had not reported that fact to the court, and obtained an order to make title, before he executed the deed. While we admit this was an irregularity, it does not avoid the conveyance. 4. Under these views, it was the duty of the Circuit Court to instruct the jury, that plaintiff had shown a legal title to the lot in himself, as tenant in common with the heirs of R. B. Montgomery. The charge of the court, that an equitable title in plaintiff would support his action, whether right or wrong, could not possibly have injured the defendant. The judgment of the Circuit Court is affirmed.