Keck v. Fisher

| Mo. | Jan 15, 1875

Wagner, Judge,

delivered the opinion of the court.

This was an action in the nature of replevin, to recover the possession of certain personal property described in the petition. The plaintiff claimed the property as trustee by virtue of a Written instrument made in the name of H. Helmreich & Co., which was executed by Charles Haber, a member of the firm. The defendant claimed the property by purchase from one Holden, who bought it from H. Helmreich & Co., subsequent to the execution of the deed to plaintiff. Baber signed the name of H. Helmreich & Co. to the deed, and acknowledged its execution before a notary public. The acknowledgment is as follows: “Be it remembered, that H. Helmreich & Co. by Charles Baber, of the firm of H. Helmreich & Co., who is personally known to the undersigned, a notary public within and for said county, to be the person who subscribed the foregoing deed, as party thereto, this day appeared before me and acknowledged that he executed and delivered the same for the uses and purposes therein contained.” It is now contended that Raber had no power to make the deed, without a special authorization from the other partner, and that the acknowledgment is bad.

The first point is surely not sustainable. In Clark vs. Bives, (33 Mo., 579" court="Mo." date_filed="1863-03-15" href="https://app.midpage.ai/document/clark-v-rives-8001362?utm_source=webapp" opinion_id="8001362">33 Mo., 579) it was held,- that each, partner had full power and authority to sell, pledge or otherwise dispose of any effects belonging to the partnership, for any purpose within the scope of the partnership. ' Judge Story lays it down as the settled doctrine, that by virtue of the community of rights and interests in the partnership stock, funds and effects, each partner possesses full power and authority to sell, pledge or otherwise dispose of the entirety of any particular goods, wares, merchandise, or other personal effects belonging to the partnership, and not merely of his own share thereof, for purposes within the scope of the partnership. In respect to the shares of his co-partners, he is deemed to do such acts as their agent and as the accredited representative of the firm. Each partner is treated without any nicety of discrimination, and he isideemed to possess a dominion over the entirety of the property, and, therefore, clothed with all the ordinary attributes of ownership. (Sto. Part., § 94.)

The same principiéis announced by Chancellor Kent, who says “"With respect to the power of each partner over the partnership property, it is settled, that each one, in ordinary cases and in the absence of fraud on the part of the purchaser, has the complete Re.,5 (Msponendi of the whole partnership interests, and is considered to be,the authorized agent of the firm. He- can sell the effects, or compound or discharge the partnership debts; This power results from the nature of the business, and is indispensable to the safety of the public, and the successful operations of the partnership. He is an agent of the whole, for the purpose of carrying on the business.” (3 Kent. Com., 44.) The result of the authorities is, that the act of each partner is considered as the act of the whole partnership, or of all the partners, within the scope of the business of the firm. But in respect to real estate, a different rule prevails, founded on the nature of the property and the provisions of the common law applicable thereto. Each partner is required, both at law and equity, to join in conveyance of real estate, in order to pass the entirety thereof to the grantee ; and if one partner only executes it, whether it be in his own name or that of the firm, the deed will not ordinarily convey any more than his own share or interest therein, (Sto. Part., ubi supra).

As the property here conveyed was personal property, and the conveyance was made to secure an indebtedness of the firm, the partner had the unquestionable authority, to execute the conveyance without any special authorization for that purpose.

.This was a deed of trust and the statute provides that no mortgage or deed of trust of personal property shall be valid against any other person than tlie parties thereto, unless pos•session of the property be delivered to and retained by the mortgagee or trustee, or cestui que trust; or unless the mortgage or deed of trust be acknowledged or proved, and recorded in the county in which the mortgagor or grantor resides, in .such manner as conveyances of lands are by law directed to be acknowledged or proved and recorded. (Wagn. Stat., p. 281, § 8.)

.'’ Section 7, of the chapter in relation to conveyances of real estate, declares that all deeds or other conveyances of lands, or of any estate or interest therein, shall be subscribed and sealed by the party granting the same, or by his lawful agent, and shall be acknowledged or proved and certified in the manner herein prescribed. (/<■/., p. 273.) The 13th section of the same act provides that no acknowledgment of any instrument in writing, conveying real estate, or whereby any real estate may be effected, shall be taken unless the persons, offering to make such acknowledgment, shall be personally known to .the officer taking the same, to be the person whose name is subscribed to such instrument as a party thereto .or shall be proved, etc. The argument against the validity of the acknowledgment, is this : Raber is not the person whose name is signed to the instrument, and hence it cannot be his deed. The name of II. Helmreich & Co., is the name signed to the instrument, and Helmreich did not sign or acknowledge it, so that it cannot be his deed. It is not Raber’s deed because his name.is not signed to it, and it is not Helmreich’s deed, because he neither signed nor acknowledged it; therefore, it is not the deed of either member of the firm, and conveys nothing.

Rut this argument is founded upon a total and complete misapprehension. , As we have seen before, Raber had full authority, and was the legally empowered agent of the firm to dispose of the property, and execute the instrument, and the statute requires that the deed should be subscribed, sealed and acknowledged by either the principal or his lawful agent. It follows, that as Buber was the lawful agent, and executed and acknowledged the instrument in the name of the firm, the execution was sufficient and the conveyance valid.

The court below found for the plaintiff and its judgment will be affirmed.

All the judges concur except Judge Vories, who is absent.