21 Fla. 803 | Fla. | 1886
delivered the opinion of the court:
I. The first objection urged to the bill of complaint, in the appellee’s brief, is that his name is not stated in the introductory part of the bill, as a defendant, and that therefore, the bill is demurrable. Equity Eule 17 requires that the names and places of abode of all parties be stated in the introductory part of the bill. A failure to so state the name is a ground of special demurrer, and the objection cannot he made under the general demurrer filed in this cause, nor urged in the appellate court in the absence of anything in the record, showing that it was insisted upon in the lower court. Keen vs. Jordan, 13 Fla., 327 ; Story’s Eq., Plead., §§527, 528; Thompson vs. Maxwell, 16 Fla., 777. Praying for process against this party specially by name in the prayer for process would not have cured the above defect had it beeen properly presented as a ground of demurrer.
In Martin vs. Noble, 29 Ind., 216, there was as to Martin simply a prayer that a tax deed to him be declared void and set aside. He demurred to the complaint for want of sufficient facts. The Supreme Court overruled the lower court and sustained the demurrer as there was no averment whatever against Martin, and no reason shown for making him a defendant, holding that while it is true that one may be made a defendant to answer as to interest in the property, it must, at least, be alleged against him that he either has or claims some interest.
In Short vs. Hooner, 16 Kansas, 220, the allegation against Hooner was that he has or claims to have some interest or lien upon said premises, as described in the mortgage deed, but that plaintiff is ignorant of the nature and extent thereof, and does not know whether Hooner has any subsisting lien upon the premises. It was held that the petition did not state facts to sustain any judgment against Hooner, and especially one barring all right, title and interest in the premises. The reason for this conclusion as to the complaint, is that “ it lacks an allegation showing that Hooner’s claim is junior or inferior to the mortgage lien of the plaintiff'.”
III. The next objection to the bill is that “ the original mortgage, which is made a part of the bill, purports to be the joint act of both parties, and they are individually named in it as parties to execute it. They appear to have signed the copartnership name, which they had a right to do.” It is urged that both of the parties, instead of one, should have acknowledged the execution to entitle the instrument to record under our statute; and while it is admitted that it is competent for one partner to mortgage partnership property, it is contended that he should act in the name of and as agent for the ñrm, and further, that “ this mortgage shows that it was intended before it should take effect that it should be the perfect and complete joint act of both partners, and ought not to be given effect in the condition we find it unless something. is shown indicating a change of such intention * *. ” It is also objected that the Notary’s certificate of acknowledgment does not state that LaCoste, who made the acknowledgment, was in fact known to the notary as one of the persons named in the mortgage as a mortgagor.
If it is meant that the mortgage purports upon its face that both partners were actually to participate in the physical execution of' it, we do not concur with counsel. There is nothing in the body of it so indicating. The commencement of the instrument is as follows: “ Know all men by these presents, that we, O. H. LaOoste and R. A. Terry, copartners, doing business in saw-milling, in the county of Escambia, and State of Florida, under the co-
There is nothing in the objection that the Notary’s certificate does not state that LaCoste was in fact known to the Notary as one of the persons named in the mortgage as mortgagor. It states that LaCoste is a member of the firm. The section of the statute requiring that the officer taking acknowledgments shall know or have satisfactory proof that the person making it is the individual described in, and who executed, the instrument, applies only to cases where the instruments covered by it have been executed or acknowledged out of this State. It is not pretended that this mortgage was either executed or acknowledged outside of Florida.
It being admitted in argument that, one partner may mortgage the property of the firm, and this mortgage appearing to have been executed by one member, and being alleged to be in law the act of the firm or both parties, and the demurrer admitting that it is the legal act of the firm, the question arises whether a mortgage lawfully executed by one member of a firm, can, under our statute, be admitted to record upon his acknowledgment.
In Sanders vs. Pepoon, 4 Fla., 465, the instrument called a mortgage was executed by both partners. Mr. Justice Thompson, delivering the opinion, says : “ One of the parties only appeared before the Clerk of the Circuit Court
IY. The question whether this mortgage, legally recorded, as it is, is void as to creditors or subsequent purchasers for value by reason of the provision in it implying a power in the mortgagors to sell the goods, wares and merchandise in the store house, and whether it is thereby made void in toto, or only as to such goods, wares and merchandise, and thé goods, wares and merchandise and feed that may be purchased to replenish the stock of goods, is one of great nicety aud importance. We have not found or been referred to a case in which a mortgage has, for this reason, been held void on its face as between the parties, or as to a third person whose claim was not based on a valuable consideration. The pleadings do not disclose the real status of the appellee as to the property. This status he can show by answer. When this is done we think it will he full time to decide the law of such status, whatever it may be, particularly in view of the irreconcilable character of the different decisions of other courts upon some of the points involved, and the absence of any decision on them in this State.
The decree of the Circuit Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
A petition for a rehearing was filed by the appellee, but it was denied by the court.