J. Bernstein & Sons v. Hobelman

70 Md. 29 | Md. | 1889

Bryan, J.,

delivered the opinion of the Court.

A mortgage was made to a partnership in the partnership name; and the principal question in this case depends on the effect and operation of this form of conveyance. The mortgage stated that it was made by Elizabeth M. Berger to secure the payment of her indebtedness to the “ co-partnership firm of Wehr, Hobelman and Gottlieb of Baltimore City.” It embraced certain real and leasehold estate in the City of Baltimore, and sundry personal chattels; and was made subject to the sections of Article four of the Public Local Laws relating to mortgages, and it also-contained a power of sale under Article 64 of the Public General Laws. The mortgagees were describéd as “the firm of Wehr, Hobelman and Gottlieb,” and in no other way. A petition was filed by the mortgagees in the Circuit Court of Baltimore City for a sale of the mortgaged property, and a decree was passed ordering it to be sold. The real and leasehold property was sold under the decree, and the sales were reported for ratification. Thereupon certain creditors, who had obtained judgments subsequently to the mortgage, filed exceptions to the ratification. The first exception maintained that the decree was beyond the jurisdiction of the Court and void, because it included personal goods and chattels; whereas the Public Local Laws of Baltimore City relating to mortgages authorized a decree only for lands and chattels real. The second exception alleged that the mortgage was not valid in law, because it was not executed to any natural person, nor to anybody corporate; -hut to “the firm of Wehr, Hobelman and G-ottlieb” which is neither. The exceptions were overruled and the sales ratified.

There was undoubtedly error in the decree, in so far as it ordered the sale of all the mortgaged property. There is no authority in the statute to decree the sale of personal chattels. It was decided in Williams vs. Williams, 7 Gill, 302, that an appeal would lie from a decree of this character, notwithstanding the assent embodied in the mortgage. If an appeal had been taken, the decree would have been necessarily reversed in part. Ho appeal was taken, and the present question arises exclusively on the exceptions. The seven hundred and eighty-sixth section of the fourth Article of'the Public Local Laws is as follows: “Any allegations may he made, and proof under the orders of the said Court exhibited, and a trial of the allegations had as the Court shall prescribe, to show that the sale ought not to have been made.” Of course if the decree was erroneous, it could not he held that the sales ought to have been made. But there was no error in that portion of the decree which ordered the sale of the real and leasehold estate; and there has been no attempt to execute the portion which related to the personal chattels. There could he no reason or propriety in-saying that a sale was improperly made which a Court had the authority to order; simply because at the same time, it ordered something else which was beyond its authority, and which was separate and distinct from the matter properly decreed. It is very frequently the case in Chancery appeals, that a decree is affirmed in part, and reversed in part.

Let us consider the second exception. In mercantile dealings promissory notes are constantly made payable to partnerships, and bonds are frequently made payable in the same manner. A partnership is an association of individuals; hut what is due to the partnership is due to all the partners collectively, and what is due by the partnership, is due by all the partners collectively; and suits by and against them must he prosecuted in the names of the individuals composing the firm. A contract by or with a partnership is a contract by or with all the partners. By the common law it was not necessary that a deed should contain the name of the grantee; hut a sufficient description of him was always indispensable. Lord Coke says: “But purchases are good in many cases by a known name, or by a certain description of the person without either surname or name of baptism, as to the wife ,of I. S., or his first horn son, or his second horn son, &c. &c. &c., or to the right heirs of I. S.” Co. Littleton, 3a.

And even in the ’case of corporations a misnomer of the grantee does not defeat the grant; provided it can he shown by proof what corporation was intended to he designated by the parties to the deed. In the case of the Mayor and Burgesses of Linne Regis, 10 Coke, 122, a bond was given to the plaintiff, a corporation; but the corporate name was misdescribed- in the bond; it being however,"found by special verdict that the bond was given to the plaintiff by the erroneous description,. judgment was given for the plaintiff. And in reporting this case, Lord Coke cites a case where the Abbot of York was incorporated by the name of “The Abbot of the Monastery of the blessed Mary of York,” and a bond was made to the Abbot by this name “The Abbot of the Monastery of the blessed Mary without the walls of the City of York.” The Abhot brought his action of debt by his true corporate name, and in his declaration, he averred that the bond was made to the plaintiff by the name stated in the bond, which, Lord Coke says, implied an averment that the abbey was within York; “and the writ was awarded a good writ by the opinion of the whole Court; and yet the name in the bond doth not import, of itself, the true name of the corporation without averment dehors.” In African Society vs. Varick, 13 Johns,, 38, the Court said “ where a deed is made to a corporation by a name varying from the true name, the plaintiffs may sue in their true name, and aver in the declaration that the defendant, made the deed to them by the name mentioned in the deed.” In the Linne Regis Case, Lord Coke says: “There will be found a difference between writs and grants, for if a writ abates, one might of common right have a new writ, but he cannot of common right have a new bond or a new lease.” Let us now consider the description of the grantees in this mortgage. They are designated as “the firm of Wehr, Hobelman and Gottlieb;” and in the recitals of the instrument they are called “the co-partnershijD firm of Wehr, Hobelman and Gottlieb of Baltimore City.” The petition for sale filed in the cause has this caption: “Frederick Wehr, Herman H. Hobelman, and Frederick H. Gottlieb, co-partners, trading as Wehr, Hobelman and Gottlieb vs. Elizabeth M. Berger. And it commences in these words: “The petition of Wehr, Hobelman and Gottlieb, co-partners as above mentioned, respectfully represents, &c.” It then alleges that Elizabeth M. Berger made the mortgage in question to the petitioners, and Frederick H. G-ottlieb, in the affidavit filed with the petition, styles himself a member of the said firm, and swears that the facts stated in the petition are true. The identification of the persons described as grantees could not he more certain. It is not a case of misnomer or misdescription to he explained by averment and proof; but simply a case, where an apt and proper designation of parties is to he applied to the individuals answering to the description. But we must now consider whether a deed naming the grantees in this way is entitled to registration; because the proceeding in the Circuit Court would not be proper except where the deed was regularly recorded. Art. 4, sec. 182, of Public Local Laws. It is stated in section nine of Article 24 of the Code that certain deeds therein mentioned shall he sufficient, if executed, acknowledged and recorded as required. It is not stated that deeds of any other form and character may he recorded. The deeds mentioned are required among other things to contain the names of grantor and grantee. The mortgage in this case does not contain the Christian names of the grantees or any of them. The surnames, however, are all stated and they are all identified as belonging to a’ particular co-partnership in the City of Baltimore. The use of both Christian name and surname is howrever the regular and approved method, and ought always to he adopted. Centuries ago untitled persons were better known by their Christian names than in any other way; hut at the present day the surnames are the more important and controlling appellations. And when to the surname a circumstance is added which belongs to the individual intended to be named and to no other person, the certainty of description is complete. If for instance we say Smith, the Postmaster of the city; or Thompson, the green grocer; or Peterson, the tailor, there is no difficulty in recognizing the persons we mean; and in fact they are usually hetter known by their occupations, than by their Christian names. Upon these considerations, we think that the requirements of the statute are reasonably gratified in this case. The fifty-fourth and fifty-fifth sections of the eighteenth Article of the Code, enact that after the clerk records a deed, he shall make an entry, among other things, of the Christian names and surnames of the parties. These sections impose certain duties on the clerk; hut, in our opinion, were not intended to change or affect the requirements necessary to entitle a deed to registration. They recognize the fact, that in the usual course of business, deeds would contain both names of the parties; hut they do not authorize him to refuse to record a deed when there has been a departure from the accustomed methods.

(Decided 9th January, 1889.)

Some of the questions which we have been considering were decided in Schaidt vs. Blaul, 66 Md., 141; hut the circumstances of this case required a more full discussion of them than they then received.

We will affirm the order of the Circuit Court.

Order affirmed.