104 Ky. 351 | Ky. Ct. App. | 1898
deliveked tiie opinion of the court.
It appears from this record that Aris Throckmorton, Samuel Holmes, and the appellant, J. W. Holmes, entered into a partnership as a firm for the sale, by retail, of goods, wares, and merchandise in Mt. Olivet, Ky., under, the firm name of Throckmorton, Holmes & Co., and continued as such firm until 1891, at which time, by consent of the partners, the firm was dissolved, and the goods on
After appellant was made a party to the suit, he an
It is the contention of appellees that the court was authorized, under the law and facts, to place the partnership property in the hands of a receiver, and that, as appellant owned an undivided one-third interest in said property, it was not error to place the entire property in the hands of a receiver. It appears in this record that the individual tract of land, containing 93 acres, sold for $651, October 19, 1896. The evidence as to the value of the 124 acres of land conduces to show that it was worth at least $1,200, most of the witnesses placing the value at a ■larger amount, and the storehouse and lot were valued at from $700 to $1,000. It also appears from the deed to the 124-acre tract that the purchasers paid for it something over $2,000. The proof also tended to show that it could be divided without detriment to its value.
There can be no question as to the power of the court to appoint a receiver when the law and facts authorize it, but it is in the nature of an extreme remedy, and a
It is insisted for appellees that they had no notice of the claim of John W. Holmes at the time they took the mortgage, and that the firm of Throckmorton & Holmes was then solvent, and that as a consideration for the mortgage they extended the time for the payment of their claim, and that during the extension the mortgagors became insolvent, and that in equity they ought not to have their lien adjudged inferior to that of appellant, if, indeed, he has any lien. Appellees also insist that appellant, by his delay in asserting or making his claim, is now estopped as against them, even if it be a valid claim, and they deny its validity. The deed to the town property, as well as the deed to the 124-acre tract of land, mentions the three several parties individually, and neither of said deeds purports to have been to them as a firm. The mortgage executed to appellees also recites that the two-thirds interest conveyed was free from incumbrance, and it seems clear from the evidence in the case that Samuel Holmes, at and before the execution of the mortgage, had represented to appellees that the mortgaged property was free from incumbrance. It is insisted for appellant that, inasmuch as he paid the firm debts of Throckmorton, Holmes & Co., and that the firm executed to him the several notes filed therefor,
It is the contention of appellees that the mortgage Jien
It is also contended for appellees that, inasmuch as the deeds to the property in question did not show that the vendees constituted a firm, the giving of the mortgage by the other joint owners of their interest passed a superior equity to the mortgaged property; and we are referred to the' case of Seeley v. Mitchell’s Assignee, 85 Ky. 508 [4 S. W. 190], in support of this contention. The court in discussing the question quotes with approval Jones on Mortgages, as follows: “ ‘Land conveyed to members of a co-partnership as tenants in common, but purchased with co-partnership funds and used for co-partnership purposes, is treated in equity as co-partnership property. The creditors of the co-partnership are in such case entitled to priority of payment out of it in preference to the creditors of individual members of the firm. But if one member of the co-partnership mortgages his apparent interest as tenant in common of such land for a consideration paid him at the time, as for instance for a loan of money, the mortgagee having no notice of the character of the prop<erty in equity as co-partnership property, he is entitled to hold it under his mortgage. He may rely upon the legal effect of the conveyance to his mortgagor and upon his
It will be seen from the foregoing that the cases then under consideration are essentially different from the case at bar. As before intimated, the proof shows conclusively that the property in controversy in this case was in fact the partnership property of Throckmorton, Holmes & Co., bought by the firm, and paid for by the firm, and used by it; and, inasmuch as it further appears that the appellees had business transactions with the firm of Throckmorton, Holmes & Co. prior to its dissolution, they may reasonably be presumed to have had notice that not only the ■storehouse occupied by the firm, but also the land in question, was owned as partnership property. The doctrine seems to be well settled that where real estate is purchased by a firm, and held as partnership property, it •can not be subjected to the debts of the individual members to the detriment of the firm creditors. That doctrine was substantially announced in Divine v. Mitchum, 4 B. Mon. 488. In Pearson and Anderson v. Keedy, 6 B. Mon.