18 Minn. 232 | Minn. | 1872
By the Court.
On the 3d day of June, 1857, Jacob K. Sidle, Peter Wolford and James N. Blair, entered into an agreement under seal, containing, among others, the following provisions, viz.: ‘^The said parties have this day agreed to enter into partnership, to engage in the following business, namely, to let or loan moneys, buy and sell real estate, enter and locate lands, &c., and do business under the name and style of Sidle, Wolford & Co. The capital now amounts to six thousand three hundred dollars, and was paid in as follows, viz.: by Sidle $1,100, by Wolford $2,900, and by Blair $2,300, with the understanding that the capital may be increased to any amount agreed upon by the parties; each of said parties to be entitled to the'profits made in proportion to the amount of capital paid, and all losses sustained to be borne in th,e same proportion. The business of the company or co-partnership, to be transacted in the western territories
“ Know all men by these presents, that 'Jacob K. Sidle and Peter Wolford, for themselves, and James N. Blair (by his attorney in fact, the said Jacob K. Sidle,) doing business under the firm of Sidle, Wolford & Co., mortgagees, named in ” the mortgage aforesaid “ for and in consideration of the sum of fourteen hundred and one dollars well and truly paid to them by Edward Lewis, * * the receipt whereof at the date hereof is hereby acknowledged, have bargained, sold, transferred and assigned, and by these presents do bargain,
Witnesses-: J. K. Sidle, [Seal.]
W. M. Peter Woleord, [Seal.]
J. W. J. N. Blair, by [Seal.]
J. K. Sidle, his atty. in fact.”
This instrument was acknowledged by Wolford and Sidle, each for himself, and by Sidle as attorney in fact for Blair, and was duly recorded May 23d, 1859. In December, 1860, Lewis, claiming to be assignee of the mortgage by virtue of the foregoing instrument, foreclosed by advertisement. Our statute then provided, that to entitle any party to foreclose a mortgage by advertisement, it shall, among other things, “be requisite * * that the mortgage * * has been duly recorded, and if it shall have been assigned, that all the assignments thereof shall have been recorded.” Pul. Stai., ch. 75, sec. 2. The manifest purpose of this requirement of the statute was to make the contents of the mortgage, and, as far as the statute goes, to make the title to the mortgage matter of record. This mode of foreclosure being altogether in pais, and having been devised (as it undoubtedly was) to avoid the delay and expense of judicial proceedings, it was for obvious reasons important, not only to the parties to the mortgage itself, and to the assignee, but to subsequent incumbrancers, creditors, and contemplating purchasers, that some permanent and accessible evidence of the existence and contents of the mortgage, and of the title to the same, should be provided.
This is unquestionably what was sought to be accomplished,
But the statute has required nothing more to be recorded to authorize a foreclosure. In other words, it has expressly authorized foreclosure, if the mortgage and the assignments are recorded. Whether the spirit of this legislation would not have demanded that the authority under which the mortgage was executed, in case it was executed by attorney, as well as the authority under which an assignment was executed in a like case, should also have been spread upon the record, is an inquiry which readily suggests itself, not however as calling for a remedy at the hands of this court, but as proper to be addressed to the legislature. It is for us to say, only, that this mode of foreclosure, being a' pure creature of the statute, it is sufficient to comply with the statute.
Whatever then the spirit of the legislation upon this subject might require in order that the apparent object of the legislature might be fully secured, it will' not be inconsistent with the position taken, that the assignment must be recorded, and therefore written, to hold, as we shall presently come to do, that the authority to make the assignment need not be recorded.
The plaintiff in this case claims to have derived a good title to the mortgaged premises through the foreclosure sale made by Lewis as assignee aforesaid. And as there was no written assignment of the mortgage to Lewis, unless the instrument' above recited be such, an important question in this case is, Was that instrument a written assignment of the mortgage 1
The line of reasoning by which we arrive at this result leads us to consider first the articles of partnership. From the extract heretofore made from the same, it appears that Sidle, Wolford and Blair formed a partnership “ to engage in the following business, namely: to let or loan money; buy and sell real estate; enter and locate lands,” &c. Loans of money being thus expressly authorized by the partnership agreement, it would follow by reasonable and natural implication, that such loans might properly be made in the usual way of doing such business; that they might be evidenced as such transactions usually are evidenced, as, for example, by the promissory note of the borrower; and that they might properly be made upon such security as customary and prudent modes of doing business of the kind required, as, for instance, the loan might be secured by sureties; by a deposit of collaterals, or, as was done in this case, by a mortgage of real estate.
It being competent, then, for the firm in this cáse to take a mortgage of real estate in security of a loan of money, the next inquiry is, Was the taking of this mortgage a partnership transaction 1 The mortgage runs to “Jacob K. Sidle, Peter Wolford and James N. Blair, doing business under the firm name of Sidle, Wolford & Co. of the second part.”
Defendant’s counsel contends that the words “ doing business under the firm name of Sidle, Wolford & Co.” are merely descriptio personarían, and that, therefore, the mortgage belonged not to the firm of Sidle, Wolford & Co., but to the persons named, as individuals, jointly. Upon the language of the mortgage alone, we may assume that this is prima facie true. Bingham vs. Stewart, 13 Minn. 106; The Bk. of Genesee vs. The Patchin Bank, 13 N. Y. 309. Yet if it„be prima facie true, there is no rule of law which makes it conclusively and
A conveyance of real estate, or of an interest therein must run to some person, (a corporation being regarded in law as a person) and a partnership, as such, not being a person, conveyances of real estate for t,he use and benefit of a partnership, have usually and aptly been made to the individual partners jointly, as tenants in common. Collyer on Partnership, § 133, et seq. and notes ; Parsons on Partnership, ch. 41, sec. 2; Dyer vs. Clark, 5 Metcalf, 562; Howard vs. Priest, 5 Ib. 582. If then the mortgage in this case was taken for the use and benefit of the partnership, it was, in accordance with common usage, properly made to run to the individual partners as grantees, and Sidle, as the managing partner under the partnership articles, had the right to take it in this form for and as the property of the partnership.
While parol evidence could not be received for the purpose of varying the language of the mortgage, it was allowable to show by parol, facts and circumstances with the object of putting the court, as far as might be, in the situation of the parties at the time it was made and executed. 1 Gr. Evid., § § 278, 288 ; Sanborn vs. Neal, 4 Minn. 126.
It was therefore proper for the court below, to receive the parol evidence showing, and from which it has found, that the funds loaned on the mortgage were wholly partnership funds, and that the mortgage and the notes secured by it were taken by Sidle in the ordinary and usual course of the firm business, and as and for the property of the partnership. And there was no impropriety in going farther, and supporting this testimony by receiving parol evidence, as the court did, to show, according to the findings, that the notes and mortgage,
From these findings it is manifest that the loan of money and the taking of the mortgage were in fact partnership transactions, and that the notes and mortgage were in fact the property of the partnership.
As they were property of the partnership, it was, therefore, competent for the partnership to sell or dispose • of them. Such right of sale or disposition is not expressly provided for in the articles of partnership, but it is an incident of the right of property, and the omission to provide for it in the articles, no more proves that it did not exist, than the failure to provide for the right of collecting or receiving the money loaned by the partnership, shows that the partnership had no right so to collect or receive. The court below has found that Lewis purchased said notes and mortgage of Sidle, Wolford & Co., through Sidle, the managing partner, paying therefor the full amount due thereon, which amount went into and became a part of the partnership funds, Blair receiving his part thereof; and that Sidle, acting for said firm, in the course of the business thereof, thereupon delivered said mortgage and notes to said Lewis, and thereupon as evidence of such sale, executed to said Lewis the written assignment aforesaid, said Sidle and Wolford being present and signing the same, but the said Blair being absent his name was signed thereto by said Sidle acting for him.
As by the terms of the partnership articles it was expressly
The mortgage though it is in eifect but a lien or security, (See Adams vs. Corriston, 7 Minn. 462-3; Hill et al. vs. Edwards, 11 Minn. 29,) is in form a conveyance of an estate or interest in land, and is so treated and regarded in our statutes. (See Pub. St., ch. 35, and Gen. St. ch. 40, passim.) As such estate or interest it must at law be created and assigned by deed.' 1 Washburn Real Prop. [519] ; see also Pub. St., ch. 35, §§ 1, 30, 54, 56, 57, 63, 74, 24, 29 ; Gen. St., ch. 40, §§ 1, 21, 23, 25, 26, 32, 34, 35. And the necessity that the mortgage and assignment must not only be in writing, but by deed, is further apparent from sub. div. 3, sec. 20, ch. 75, Pub. St., which requires that to entitle a party to foreclose by advertisement, the mortgage and the assignment, if it shall have been assigned, shall be recorded; for neither is authorized to be recorded under our statute except it be under seal, and duly acknowledged. Pub. St., ch. 35, § 1, 30, 60, Sfc. It was then necessary in this case that the assignment of the mortgage should be by deed.
The general rule is that an authority to execute a sealed instrument for another must also be under seal. Applying this rule to this case, we are of opinion that by the articles of partnership, which, were under seal, authority was conferred upon Sidle to execute for the partnership any sealed instrument which might be proper and requisite for the transaction of partnership business; such instrument to be executed, as the court belo.w finds the assignment was in this instance, in the course of the partnership business. The language of the
And in addition to all this, the court finds that the defendant, in the winter of 1862 and 1863, commenced negotiations for the purchase of Lewis of a second mortgage made by Hoag upon these and other premises, and “ had notice of the facts in relation to the foreclosure of said first mortgage, and * * also the transfer thereof from said Sidle, Wolford & Co.”
Without consuming further space upon the matter of ratification, we think the importance of the facts thus found by the court will be appreciated when it is considered that it has come to be established, “ that a partnership will be bound by a deed executed by one partner on its behalf, provided the act of such partner have from his co-partners, either a previous parol or a subsequent parol ratification, which may be expressed or implied.” Parson’s Partnership 181, note and cases cited; Gram
It is argued, however, by defendant, that there is no evidence of any legal assignment of the mortgage by the firm; that the instrument claimed to be an assignment does not purport to be the act of the firm. We have already determined that 'the mortgage in this case which the court below has found to have been taken for the use and benefit of the partnership, was properly, and in accordance with common usage, made to run to the individuals'composing the firm by their own names, describing them as “ (loing business under the firm name of Sidle, Wolford & Co.”
If this.is so, it certainly must be equally proper that in case of assignment, the mortgage should be assigned by the individuals composing the partnership, by their own names, describing them as before. (See Dillon vs. Brown, 11 Gray, 180.) Even if it would be proper under any circumstances to assign a mortgage, belonging, as this did, to a partnership, in the name of the firm as assignor, there can certainly be no doubt that where the mortgage runs, as this did, to the individual members of the firm, described as aforesaid, the mortgage may be effectually assigned by such individual members by their separate names, and this would appear, as a matter of common sense, to be the only proper way of making such assignment. So far as the power of Sidle to sign the separate name of Blair is concerned, we merely say, mutaiis mutandis, as is said in Patch vs. Wheatland, 8 Allen, 102, viz.: that one of the co-partners, (Sidle) having authority to pass a valid title to, and to assign the mortgage by the sealed articles of partnership, as incident thereto, could execute such assignment in any form or mode by which such title could be legally transferred. He could execute such assignment by signing
We are, therefore, of opinion that the instrument .executed as aforesaid; .was a written and sealed assignment of the mortgage, and operated to transfer a complete title to the mortgage to Lewis, the assignee. • It was argued by defendant, that .a fair and reasonable construction of the law would require that a power to execute an assignment should be recorded before a foreclosure by advertisement by the assignee. The statute, however, requires no such record, and for reasons before given, we are of opinion that it is not a pre-requisite to the right to foreclose.
. As no question is made here against the validity of plaintiff’s title, except such as is raised by .the claim that no assignment of the same sufficient to authorize a foreclosure by advertisement was made and recorded, the view which we take of that question renders it unnecessary for us to consider the other matters presented in the briefs of counsel.
Judgment affirmed.