43 Kan. 553 | Kan. | 1890
The opinion of the court was delivered by
This was an action brought in the district court of Shawnee county on October 12, 1886, by Charles Heitman against Wm. H. Griffith and Sarah M. Griffith, who were husband and wife, for the purpose of dissolving a partnership known as “W. H. Griffith & Co.,” annulling a chattel mortgage purporting to have been executed by the firm of' W. H. Griffith & Co. to Mrs. Griffith, for an accounting between the partners, and for the appointment of a receiver to take charge of the partnership affairs. The business of the firm consisted in operating a planing mill, dressing lumber, etc. A provisional receiver was appointed at the commencement of the action. The defendants answered separately. Mrs. Griffith in her answer set forth, among other things,
The questions in dispute in this case are and have been principally questions of fact and not questions of law; and with reference to these questions of fact the court below found in favor of the defendants and against the plaintiff upon sufficient evidence, and hence there is but little for this court to decide. It appears that about nineteen years before the trial in the court below, Mr. and Mrs. Griffith were married. Neither at the time had any property, but since that time and up to the trial of this case, both used their best endeavors to accumulate property, and they together accumulated a considerable amount. Mrs. Griffith never carried on any separate' business, and never obtained any property except what she obtained through the joint exertions of herself and husband, and set apart to her by the consent of both. During the aforesaid nineteen years they had owned several pieces of real estate, and the titles to some of them were placed in her name, and to others in his name; and all this was done in good faith and not for the purpose of defi-auding any person. It does not appear that either of them was ever insolvent or 'embarrassed financially; and from anything appearing in the case, either of them could now easily pay any debt or debts which he or she may owe. About nine or ten years before the
I. It is claimed that the utmost good faith is due from every member of a partnership toward every other member thereof, and that good faith requires that no partner shall obtain any private advantage at the expense of the firm. This of course is correct. The plaintiff also says that “ every husband is interested in his wife’s property in innumerable ways; it adds to his credit, importance, comfort, and power;” and that if she should die first, he would inherit one-half of her estate in any event, and might inherit the whole of it. This is also correct. But from these things the plaintiff goes farther, and claims that Griffith as the manager of the business of the firm could not have any dealings with his wife without gaining some private advantage at the expense of the firm, and that this private advantage would have the effect to destroy the validity of all such dealings. This we do not think is correct. The remote interest which a husband has in his wife’s property cannot prevent him from having business dealings with her,-although he may be acting for a partnership of which he is a member, provided, of course, that such dealings are honest and in good faith; and such dealings will be upheld and sustained in equity whenever it is equitable that they should be upheld and sustained. This action is itself an equitable action, and as the plaintiff seeks equity, he should be willing that equity should be extended to others. Now it is certainly
II. It is also claimed that the mortgage is void for the reason that it was given for a preexisting debt. In other words, the money was loaned, the debt created and the note given on August 15, 1886, and the mortgage to secure the debt was not executed until September 6, 1886. This mortgage, however, was given in pursuance of an agreement, made at the time when the money was loaned, that such should be done in case the money was not soon refunded; but even if no such agreement had ever been made, the ground for claiming the mortgage to be void would hardly be sufficient. (Draper v. Cowles, 27 Kas. 484.) Before the plaintiff or anyone else should be allowed to say that the mortgage should be held void, he should refund to Mrs. Griffith her money.
The judgment of the court below will be affirmed.