6 Barb. 19 | N.Y. Sup. Ct. | 1849
A judgment or other security may be taken and held for future responsibilities and advances, to the extent of the amount of the judgment or security. But to enable a creditor to hold a judgment or other security for future responsibilities and advances, it must be a part of the original agreement that the judgment, or security, should be a security for such
In this case the bond and warrant of attorney of the defendant Geo. P. Loucks was given to Lewis Averill as a continuing security for all endorsements theretofore made and thereafter to be made by Averill for the defendant, and for the firm of Loucks & Gray, until the judgment to be entered up on such bond and warrant of attorney should be cancelled of record. The endorsement for which the judgment is sought to be held as security was made on the 30th of June, 1848, prior to the failure of Loucks &.Gray, and prior to their assignment to Bailey and P. I. Loucks. On the 30th of June, 1848, Averill endorsed a draft for Loucks & Gray for $2000, which he afterwards became liable to pay, and did actually pay. Upon the cases cited I think Averill had a right to hold the judgment as security for his liability on account of this endorsement. It was a part of the original agreement that Averill should hold the judgment as a security for subsequent endorsements. The cases in relation to a judgment or mortgage being held to meet or cover new
It is objected by the counsel of the assignees of Loucks & Gray, that parol evidence is inadmissible to vary the terms of the bond and warrant of attorney. The assignees themselves first resorted to parol evidence to show the extent and object of the bond and warrant. Besides, one of the assignees states, in his affidavit, that the bond and warrant of attorney were given to indemnify Averill against certain endorsements previously made by him, and that the notes so endorsed had been paid and taken up by Geo. P. Loucks. Bellinger, the present owner of the judgment, certainly had a right to rebut or qualify this parol evidence, by evidence of the same character. If parol evidence is to be excluded on both sides, then no ground remains for the application to have the judgment satisfied of record. Without this parol evidence the bond must be taken to be as it purports, on its face, an ordinary bond for the payment of money. And it is not pretended that Geo. P. Loucks has paid to Averill any part of the money stipulated to be paid to him, by the condition of the bond. But I apprehend that upon this application parol evidence is admissible to explain the extent and object of the bond. The application is to the equitable jurisdiction of the court. This court, as a court of law, has always exercised an equitable jurisdiction over judgments entered up by confession, on bond and warrant of attorney. (Frasier v. Frasier, 9 John. 80.) And it has generally been found necessary, on ap
It is an established rule in chancery, that parol evidence is admissible to show that a deed absolute on its face was intended by the parties as a mortgage. (1 Paige, 206. 2 Cowen, 324. 1 John. Ch. Rep. 594.) In Moses v. Murgatroyd, (1 John. Ch Rep. 118,) where an assignment of personal property, general and absolute on its face, was admitted to have been given as a security or indemnity merely, it was held by Chancellor Kent that parol evidence wás admissible to explain the extent and object of the assignment. It has frequently been held that an assignment of a chose in action, although absolute and under seal, may be shown by parol evidence to have been given and intended as a mere mortgage or collateral security. (20 Wend. 632. 1 Hill, 632.)
But the parol evidence objected to, relates to the consideration of the bond and warrant of attorney. And since the decision of McCrea v. Purmort, (16 Wend. 460,) in the court of errors, the utmost latitude of inquiry into the consideration of deeds and other written contracts has been allowed. The decision in that case authorizes the reception of parol evidence, not only to show another consideration consistent with the one expressed, but also a different consideration, one inconsistent with the consideration expressed in the deed or contract; The rule adopted in the case of McCrea v. Purmort, allows the consideration clause of a deed or other written contract, in all cases, to be ex
Where there is no change of the parties to a suit, no person but the defendant can take the objection that the execution did not issue until after the expiration of two years, without a revival of the judgment by scire facias. In this case the defendant consented that the execution might issue without such revival. (1 Cow. 739. Gra. Pr. 350, 2d ed.)
Taking the bond and warrant of attorney from George P. Loucks, and entering up a judgment thereon, extinguished the liability of Gray, the copartner of Loucks, to Averill. The debt, as a partnership debt, became merged in the judgment against Loucks; and the individual liability of Loucks was substituted in place of the joint liability of both partners. (5 Hill, 135, 82, 85. 1 Denio, 225. 18 John. 459, 481, 2, 3.) Loucks being thus made individually liable to Averill, he has a claim on the partnership property for the amount of the judgment against him, which he is entitled to have paid out of the surplus, if any remains after the payment of all the partnership creditors. (4 John. Ch. 522. Story on Part. § 93, note.) Under the decision in Coles v. Coles, (15 John. 161,) partners, in the absence of special covenants between them, hold real estate, purchased with partnership funds, and for the purposes of the partnership, as tenants in common and not as partners and the rules relative to partnerships do not apply. This decision, Chancellor Kent says, (3 Kents Com. 37,),goes to the entire subversion of the equity doctrine now prevalent in England relative to real estate belonging to a partnership. According to that doctrine, the real estate belonging to a copartnership is, in equity, treated as personal estate, and is disposable and distributable as personal estate; and the persons in whom the legal estate is vested are considered as trustees for the partnership. (Story on Part. §§ 92, 93. 3 Kents Com. 37. Story's Eq. Jur. § 674.)
The defendant George P. Loucks, in his affidavit, states that the premises secondly described in the sheriff’s advertisement were purchased by him, and that all the payments which had been made on account of the purchase money, were made by him, out of his individual funds, and that the only interest of Loucks & Gray in the premises was on account of improvements made thereon with the partnership funds. The actual interest of George P. Loucks in these premises, at least his individual interest therein, is liable to be sold on the execution against him. Gray, as one of the partners of that firm, has an equitable interest in such improvements, which doubtless passed under the assignment to Bailey and P. I. Loucks in trust for the partnership creditors of Loucks & Gray. Upon this equitable interest the judgment of Averill is no lien. The lien óf a judgment does not attach, in equity, upon the mere legal title to land existing in the defendant, when the equitable title is in a third person. And if a purchaser under the judgment has notice of the equitable title, before his purchase and the actual payment of the purchase money, he cannot protect himself as a bona fide
Bellinger has a right to sell, under his judgment, all the individual interest of George P. Loucks in these premises.
The motion must be denied, but without costs; with liberty to the assignees of Loucks & Gray to apply for relief in relation to their equitable interest as such assignees, in the premises secondly described in the sheriff’s advertisement, in a suit to be commenced by them for that purpose.
Note. In Buchan v. Sumner, (2 Barb. Ch. Rep. 167,) Chancellor Walworth held that real estate purchased with partnership funds, or for the use of the firm, is in equity chargeable with the debts of the copartnership, and with any balance which may be due from one copartner to another upon the winding up of the affairs of the firm 5 and that the separate creditors of the individual partners have no equitable right to any part of such real estate until the debts of the firm are provided for, and the rights of the partners, as between themselves, are fully protected. This decision was overlooked when the foregoing opinion was written. It seems to settle the question, as to the right of the partnership creditors of Loucks & Gray to have the whole value of the improvements made on the premises secondly described in the sheriff’s advertisement applied in payment of their debts in preference to the separate creditors of either Loucks or Gray.