Abernathy v. Smith

MANNING, J.

Appellant wholly failed to make out against defendant Smith, the case alleged in her bill of complaint, or to show that the lands which he had contracted to sell her husband and the other defendants, and for which they had failed to pay, and abandoned to him, were chargeable with a lien for the repayment by Smith of so much of her' money as had been paid therefor to him. Against' Smith, plaintiff has entirely failed to show that she is entitled to any recourse.

It is insisted, however, that under the pleadings and evi- - dence a decree ought to be rendered in her favor against the Hunters. According to her allegations, and the testimony,. she was not interested as a party in the purchase oí the property from Smith or a member of the firm of S. J. Hunter • & Co., by which name the purchasers of the lands contracted to be sold by Smith, are designated in this cause. Her claim to a decree against them is based on the appropriation of money belonging to her separate estate, toward payment for the lands which had been bargained for with Smith; which appropriation was made under the following; circumstances:

*363Without any previous association in business with one another, Samuel Abernathy, husband of complainant, and Samuel J. and Starke Hunter on one side, entered into an agreement with Bobert W. Smith on the other, for the purchase from him of the lands referred to, on which there was a plantation, and of the stock, implements, &c., belonging-thereto, for the sum of about $50,00.0. Of this they were to pay in cash $14,500, and the -residue in two instalments, one and two years afterwards, to secure which Smith was to have a lien on the property. The Hunters, (that is, Samuel for-himself and his brother Starke), made a payment of $9,000, and odd, on their share of the cash payment; and Abernathy, not having the money, used an accepted draft of $4,000 which he had received in consideration of a sale by him and his wife of property belonging to her separate estate, toward payment of his portion of the first or cash instalment to Smith. Thereupon the three purchasers took possession of the property; Abernathy (with his family) and Samuel J. Hunter occupying the premises and conducting the business. At the end of three years, the Hunters leased their interest in the premises for one year to other persons, who during that year conducted the business of the plantation in conjunction with Abernathy, and then retired; and during the fifth year Abernathy occupied, cultivated and used the property alone, the Hunters having withdrawn and apparently relinquished all interest therein. At the end of this year Abernathy also retired and abandoned the premises; and Smith, not having received any more of the-purchase money during all this time, and not having conveyed the title out of himself, resumed possession of the lands, stripped of all the stock and implements of value with which it was supplied at the time he bargained it to them.

The precise character of the relation of Abernathy and the Hunters between themselves, whether that of partners or' tenants in common, does not seem to have been settled by any definite agreement on the subject. Abernathy, who kept the books and accounts relating to their transactions, used in some of these the name of S. J. Hunter & Co., and when he transferred to Smith the accepted draft for $4,000, which was payable to himself, he first indorsed his own name upon it, and then that of S. J. Hunter & Co. But this was not done in pursuance of any agreement with them, or with their consent or knowledge; and the land was not bought for sale again as merchandise. The relation of the purchasers appears, therefore, to have been that only which resulted *364from their joint ownership, so far as they had any, of the real estate to which the transactions in controversy related; and of that they were tenants in common.—Ware v. Owen, 22 Ala. 212.

-Each of the three, if they had completed their contract of purchase, and acquired title, would have been owner of one undivided third, and would have been entitled to a partition so as to have his portion in severalty. Each of them in fact paid a part of the first instalment of the price of the property. Abernathy did not pay more than his third of that, and it is not pretended that his co-tenants received any more of the products than he did. The land seems to have been abandoned by them all from inability to pay the residue of the purchase money and because it had declined so in value that it would not on a re-sale fetch a price sufficient to pay that residue.

No equity can arise out of such a case that will entitle complainant to recover her $4,000 out of Samuel J. and Starke Hunter, or out of them and Abernathy as partners. Though the venture was a joint one, each was to furnish individually his portion of the necessary price. The Hunters paid in their own money, and have lost it. Abernathy upon his part, paid his wife’s money, and that is sunk. But the Hunters did not borrow that of her, nor did they and Abernathy together do so. How then can she make the Hunters liable for the loss of her money through an investment or employment of it by her husband, intended for his or her own benefit?

No doubt they all expected the transaction would prove to be advantageous. No doubt Mr. Abernathy intended to have the title to his one-third, or of some portion of it, conveyed to his wife. Probably he so informed her, and thus induced her to believe, as he doubtless believed himself, that she would be secured in the enjoyment of it as her separate estate. Her disappointment, as was the case in hundreds of other instances, was the result of miscalculation and unforeseen changes of values, certainly not of bad faith on the part ■ of the Hunters.

Let the decree of the chancellor be affirmed.