57 Ind. 532 | Ind. | 1877
This was a proceeding, in the court below, by James Goddard, against Gideon Renner, Adam Kastner, sued by the name of Kistner, and John Hoop, for an injunction.
The complaint represents, that, on the 18th day of January, A. D. 1867, one Charles Schreiber, being the owner of
A demurrer for want of sufficient facts was sustained, to the complaint, and there was judgment on the demurrer.
The only question we have to consider, therefore, is the sufficiency of the complaint.
It is claimed by the appellant, that, as Vogel and Schreiber were partners, Schreiber had the power to sell and dispose of the real estate of the firm in the same manner as if it had been personal property, and that consequently Schreiber’s deed conveyed to him Vogel’s title to the lot, as well as Schreiber’s; that, as a result, he, the appellant, obtained a full title to the entire lot, subject only to the claim of Eastner under his purchase at the sheriff’s sale; that, having redeemed the lot from the sale to Eastner, all liens against it were discharged, and his title was complete ; that, at all events, as Eastner accepted the redemption money, the firm of Eastner & Renner, for whom he was evidently acting, are estopped from asserting any further lien or claim against the lot.
As to the power of a partner over the real estate of a firm, we understand the rule to be, that no partner or proportion of partners can sell or transfer the real estate of the firm outright for money, or by way of mortgage, or to assignees in trust for debts, without the consent and authority of the other partners.
One partner may contract debts and make contracts which will indirectly reach the realty, because it must finally be subject to the debts of the firm: but he can not directly convey or appropriate it, excepting so far as he has the legal title in himself. It would seem, therefore, that the power of a partner over the real estate of the firm is less than that over the personal estate, and that the deed of Schreiber to the appellant did not transfer the interest of Vogel in the lot. Parsons Partnership, 376.
As to Vogel’s interest, the appellant was a volunteer,
Whether Kastner might not have successfully resisted the appellant’s right to redeem Yogel’s interest is a question we need not decide, as his acceptance of the redemption money recognized the appellant’s right to redeem it, and estopped him from afterward denying that right. To that extent, we think, Kastner was estopped by his acceptance of the redemption moneyj and no further. Phyfe v. Riley, 15 Wend. 248.
When real property is redeemed from a sale under execution, either by the owner or some one else acting in his behalf the certificate of sale is simp]y annulled, and the property restored to the position it occupied before the sale, with the judgment lien or liens reinstated for any balance or balances remaining unpaid, and may be resold to discharge such judgment lien or liens. Wood v. Colvin, 5 Hill, 228; Bodine v. Moore, 18 N. Y. 347.
Independently of any authority on the subject, we think that is the fair and reasonable construction of our statute for the redemption of real estate sold on execution, and we hold that such is its proper construction.
If Schreiber had redeemed the property, without conveying it to the appellant, he clearly could not have objected to a resale of it for the payment of any unpaid balance of a judgment lien against him. We can not see on what principle it can be claimed, that the appellant, as the grantee of Schreiber, occupies any better or more favorable position.
We are, therefore, led to the conclusion, that the court below did not err in sustaining the demurrer to the complaint.
The judgment is affirmed, at the costs of the appellant.