298
FEDERAL REPORTER.
"occurred," which, in conjunction with the 60 days also allowed the company to ascertain whether any loss had "occurred," and make payment thereof, was held to mean one year from the expiration of said 60 days, the limitation in this case is a year from a day certain, to-wit, the day of the fire. And unless the assured is prevented by the action or non-action of the company in the matter of ascertaining the amount of the loss from commencing an action within that time, he must do so or he' will be barred therefrom. But it is said that this is 80 suit to reform this contract as well as to enforce it, and that the stipulation as to time does not apply to 80 suit for such relief, and therefore the demurrer is too broad and must be overruled. But the court will not reform an instrument merely for the sake of reforming it, but only to enable a party to assert some right thereunder. And if an action thereon by the assured to recover the amount of loss is already barred by lapse of time, there is no claim that can be asserted under it against the defendant. In Davidson v. Phamix [us. Co., 4 Sawy. 594, Mr. Justice FIELD held, in a case like this, that when the remedy on the policy for the insurance was barred, according to the stipulation therein, by lapse of time, the court would not undertake to refOl'm the instrument because there was "no occasion" for so doing. This conclusion is not reached without reluctance. So far as appears, there is, in good morals, no sufficient reason why the defendant should not pay this claim according to the real intention of the parties to the contract; that is, to the receiver for the time being in the case of Holladay v. Holladry, for the benefit of whom it may concern. Such cases as this suggest the necessity of some legislation simplifying the contract of insurance, and, within certain limits, declaring its etfect, and, in case of loss, who may claim the benefit of it and maintain an action against the insurer to enforce it. But as it is, the parties to this contract have deliberately agreed that unless the assured brings his action to recover for the loss within a year from the date of the fire, he is forever barred from so doing, and the court cannot disregard the stipulation. Nor is it intended to suggest that this limitation of the time in which to sue is either unwise or unjust. In this class of caRes especially, every consideration of justice and convenience require that claims for losses should be speedily settled, while t!J.e witnesses are within reach and the facts are fresh in their recollection. But the law should have come to the aid of this defective contract and authorized the plaintiff to maintain an action thereon to recover this loss, as the successor in office of the person who effected the insurance, -for the benefit of whom it might concern, without any reformation of the instrument, or delay on that account. The demurrer is sustained and the bill dismissed.
LOGAN t1. GREENLA.W.
299
LOGAN v. GREENLAW and otbers. 1 (Oircuit Oourt, IV D. Tennessee. 1.
September 30, 1885.) EXECUTOR OF DECEASED
PARTNERSHIP REAL ESTATE-JUDGMEN'r AGAINST PARTNEH-HEIR AT LAW-SURVIvnw PAR'l'NER,
It results from the equitahle doetrine of lhe conversion of partnership real estate into that the heir at law is bound l.Jy a judgment against the executor of a deceased partner and the surviving partner, upon a bill filed to subject the partnership land to the satisfaction of the judgment; and he c:Jnnot require the plaintiff to re-establish the delJt, unless by a direct proceedll1i{ the judgment is atLacked for some collusion or other fraud, accident, or mistake sufficient to avoid it. 2. SAME-VODE TENN. H 2011,2789, CONSTRUED-RECONVERSION INTO REALTYEVIDENCE.
Under the Code of Tennessee, allowing a remedy at law against the executor of a deceased partner, and saving to surviving partners their rights in the partnership assets as against the statute abolishing joint tenancies, the reconversion of the partnership lands into realty in favor of the heir at law does not take place until the partnership is wound up and the surplus is ascertained. It is only in this surplus that the heir has any beneficial interest, and he does not occupy, in reference to partnership lands, the same attitude he does as to other lands of his ancestor descended to him, in respect to the effect of a judgment against the executor or administrator of the decedent, as evidence against himself. This distinction must be observed, to preserve the rights of the partners and their creditors intact.
In Equity. This case was formerly heard on exception to the pleas. LO{lan v. Greenlaw, 12 Fed. Rep. 10. The plaintiff commenced an action for the death of her slave against a coal company, to which be had heen hired, and attached property to secure her claim for damages. 1.'he property was released upon the security of a replevy bond, the firm of W. B. Greenlaw & Co. becoming sureties. The firm was composed of two brothers, W. B. and J. O.-Greenlaw, who were engaged in many kinds of business as contractors, speculators in lands, etc. W. B. Greenlaw signed the bond in the firm name. The case was decided in favor of the plaintiff, and under the Tennessee p'ractice she was entitled to judgment on the bond without notice to the sllreties; but J. O. Greenlaw having died, appointing his brother, W. B. Greenlaw, his executor, a scire facias was issued, requiring the latter to show cause why judgment should not be entered on the verdict against him "individually, as surviving partner of W. B. Greenlaw & Co.,and as executor of J. O. Greenlaw, deceased." To this scire facias he pleaded,as execunot bound by the bond, as it was signed withtor, that bis testator out his assent, and was beyond the scope of the partnership business. This plea was, however, withdrawn, and the plaintiff had judgment against bim individually, as surviving partner, and as executor de bonis testatoris. On appeal to the supreme court the judgment was affirmed, and execution returned nulla bona. The plaintiff filed this bill to subject the partnership land to the satisfaction of the judgll:iee note at end of case.