Philippi v. Philippi

STONE, J. The object of the present bill is, first, to establish a partnership between defendant and Angelo M. [45] Philippi, through whom complainants claim, and to have a settlement of its dealings; and, second, to have said defendant declared a trustee for said Angelo, of an interest in certain property, a part of which is described in the bill. A summary statement of the case made by the bill is, that about the year 1840, Angelo and Antonio Philippi formed a partnership in the keeping of a restaurant and boarding-house, and that the business was prosperous and remunerative; that in the year 1845, Angelo, who was of foreign birth, returned to France, leaving the business of the partnership undivided and unsettled, in the hands of his brother Antonio, and that the partnership has never been dissolved or settled up; that in 1856 Angelo returned to Mobile, his former home, where he afterwards continued to reside until 1874, when he died intestate. The present bill is filed by the administratrix, widow and heirs-at-law of Angelo Philippi; the suit being commenced April 17th, 1877. The material allegations of the bill, which are relied on as showing its equity, are as follows : “ That extremely amicable relations existed between defendant and his brother, said Angelo M. Philippi, from the time said defendant arrived in Mobile, in or about the year 1840 or 1841, uninterruptedly until in or about the year 1856, and that the partnership relations between defendant and his said brother Angelo, were also continuously amicable and harmonious, until the return of said Angelo from Europe, as hereinafter stated; that said partnership between defendant and his brother, said Angelo M. Philippi, was upon equal terms, share and share alike. . . . That in or about the year 1845 aforesaid, said Angelo returned to France on a visit, and placed all of his affairs and property of every kind and description in the city of Mobile aforesaid, in the keeping of his brother, the defendant, to manage and invest for him, and to invest the rentals, incomes and profits of said property and business; and your complainants charge that said defendant expressly accepted said trust, and also evidenced and acknowledged the same by writings signed by himself. Your orators and oratrixes further show that at this day they can not set forth in detail all the said affairs and property so placed in trust with said defendant by said Angelo M. Philippi, but they charge that on or about the 5th day of May, 1847, defendant had in trust for said Angelo M. Philippi, the sum of ten thousand dollars belonging to said Angelo M. Philippi, upon which the said defendant had agreed with the said Angelo to pay him interest. And complainants further charge that besides holding in trust the [46] separate property of said Angelo M. Philippi, the defendant continued to carry on for account of himself and of his brother, said Angelo M. Philippi, the partnership affairs between them, and for a time continued to keep true accounts, and therein set out the respective share of each in the joint gains of said partnership, as was his duty; and they further charge that the magnitude of the partnership operations hereinbefore referred to was such, that defendant’s accounts for the year ending November 1st, 1847, showed the net joint-profits to be eight thousand dollars, one-half of which, or four thousand dollars, defendant set out to the account of said Angelo M. Philippi, and held subject to said Angelo’s order in March, 1848. And complainants further charge that the number of slaves held, at or about the same time by said defendant, in trust for himself and said Angelo M. Philippi, was such that the annual income derived from the hire of said slaves for the year 1848 was four thousand five hundred dollars. And complainants farther charge that the real property held by defendant in trust for himself and his brother, said Angelo M. Philippi, at or about that time, consisted in March, 1848, of at least six houses in the city and county of Mobile, whose aggregate value exceeded twenty-six thousand dollars. Tour orators and oratrixes further show and charge that no settlement was ever made of said trust and partnership affairs, after said Angelo M. Philippi departed for Europe to revisit the same, in or about the year 1845. And complainants further show that said Angelo M. Philippi returned to Mobile in or about the year 1856, and thereafter requested defendant to account for the partnership property, and for the real and personal property held by said defendant in trust for him, the said Angelo M. Philippi; and that defendant promised from time to time so to do; but has hitherto neglected and failed so to do. Tour orators and oratrixes further show and charge that said partnership has never been dissolved by voluntary act of the parties thereto, and was never insolvent; that there are no debts outstanding against it, and that no account has ever been had of the same, or division made of its assets finally. . . . Complainants further show that said Angelo repeatedly declared that the thought of a suit at law with a brother was repugnant to him; and that he always expected that, at some time, defendant would render him a full account, and pay him his share of the various property and affairs, placed by him in trust with his said brother the defendant, before leaving for Europe in and about the year 1845. That should defendant [47] fail so to do, he repeatedly told his children that they would not be restrained after his death by the considerations which controlled him during his life-time, from proceeding against defendant, his brother.” The bill charges that the titles to the real property, in which it seeks to establish a trust, were all taken in the name of the defendant alone; many of the titles bearing date from 1845 to 1850. Neither writings or letters are made exhibits to the bill, nor is there any attempt to set out the contents of writings, further than is shown above. It will be observed that the bill does not disclose, or attempt to disclose, in what the partnership property consisted, when it is alleged it was placed in the hands of Antonio, defendant, in trust. It does not appear whether it was real or personal property, or what was its value. No attempt is made to set forth the date or contents of the paper writing, by which, it is averred, the trust was acknowledged. Nor is it shown in what manner, or in what description of property, Antonio was to invest the funds of Angelo, charged to have been left with him in trust for investment. Neither is any date or time fixed, after Angelo’s return from Europe in 1856, when Antonio, “ from time to time,” promised “ to account for the partnership property, and for the real and personal property held by said defendant in trust for him, the said Angelo M. Phillippi,” nor is it averred to what extent, if any, Antonio admitted himself liable to account. Everything is stated in the most general and indefinite terms. It is a cardinal rule to construe equity pleadings most strongly against the pleader. Under this rule, no act in recognition of the partnership or trust, is averred to have been done after the year 1848. The present bill was filed twenty-nine years afterwards. Even if we attach any importance to the alleged promise to account after Angelo returned from Europe, this was twenty-one years before this suit was commenced. IVe fully concur with the chancellor that the present complainants have slumbered too long on their claim to have it entertained in a court of equity. — Rhodes v. Turner, 21 Ala. 210; Austin v. Jordan, 35 Ala. 642; Goodwyn v. Baldwin, 59 Ala. 127; Dawson v. Hoyle, 58 Ala. 44; Bradford v. Spyker, 32 Ala. 134; Harrison v. Heflin, 54 Ala. 552. The claim of dower is equally lost to the demandant, Mrs. Angela F. Philippi. It falls within neither of the subdivisions of section 2232 of the Code of 1876. Her husband was not “seized in fee during the marriage.” According to the lapse of time, during which her husband slumbered on [48] his alleged rights, the intendments and presumptions above expressed, it is not shown that, as to any of these lands, “another was seized in fee to his, [her husband’s] use.” Dower is a derivative estate, carved out of the inheritance; and when there is no inheritance, there can be no dower. Edwards v. Bibb, 54 Ala. 475. Nor had her husband, at the time of his death, “ a perfect equity, having paid all the purchase-money thereof.” Affirmed.