Neiswanger v. Ord

81 Kan. 63 | Kan. | 1909

The opinion of the court was delivered by

Mason, J.:

An action to foreclose a real-estate mortgage executed to John D. Knox & Co., a partnership composed of John D. and Mary Knox, was brought by W. A. Neiswanger, an assignee of the firm. Thomas Ord and Charles H. Swope defended on the ground that they held under a tax deed which was good upon its face and had been of record for more than five years, and also under a decree quieting title against the mortgagees. The trial court held that the tax deed was invalid upon its face and that the decree was void. This proceeding is brought to’ review the judgment based upon these rulings.

The objection made to the decree quieting title is that it was based upon publication service directed merely to “John D. Knox & Co.,’’.and throughout the proceedings the mortgagees were described in that way, as they were in the mortgage, without further attempt to designate the members composing the firm. Counsel for the assignee of the mortgage rely largely upon The Johnson Machinery Co. v. Watson, 57 Mo. App. 629, which is indeed exactly to the purpose and supports their contention. That decision, however, is entitled to weight only so far as it is supported by sound reason or authority. Its grounds are thus stated in the opinion :

“In the absence of a statute authorizing it, a firm can only be sued in the individual names of its members. This rule rests on the principle that a firm has no legal existence apart from its members. It is a mere ideal entity.” (Page 634.)

In support of this statement nine cases are cited. One of them (Proprietors of the Mexican Mill v. Yellow Jacket Silver Mining Company, 4 Nev. 40) is clearly in point; it holds that an attempt to begin an action in a firm name is a nullity, the pleading being incapable of amendment. The five Missouri cases are explicitly to the contrary, all holding that such a defect can be corrected by amendment. One of them (Fowler & Wild v. Williams, 62 Mo. 403) adds that the defect is waived unless a timely objection is made, and another (Conrades & Co. v. Spink, 38 Mo. App. 309) that a judgment will not be reversed even when such objection is made and overruled by the trial court. In each of the other three remaining cases the attack on the judgment was direct.

The argument based upon the theory that a partnership has no legal entity apart from the members composing it is opposed to the modern tendency to give formal recognition to the actual fact that in many respects the firm has an independent status of its own.

“While it has been stated broadly that a partnership is but a relation and is not a legal being distinct from the members who compose it, still the law does take note on a wide scale of partnership as a legal entity and regards it as a unit both of rights and obligations, and there is a general tendency at this day to complete the recognition of a partnership as a body of itself with its own means appointed to its own debts.” (30 Cyc. 422.)

As early as 1841 the supreme court of Iowa noted this tendency and expressed its approval in these words:

“No very weighty argument against allowing suits to be brought in this manner [in a firm name] can be drawn from any other source than that of precedent. The defendant dealt with the plaintiffs in their partnership capacity and under their partnership name. He could not therefore be surprised by the suit being commenced by them under that name. A recovery in the present action would be quite as effectual a bar to a subsequent suit for,the same demand as though the names of the partners had been particularly set forth. Formerly the courts were fastidious in requiring the names of the partners to be particularly set forth and p.roved, and in regarding a failure in this respect as a fatal defect at any stage of the proceedings. But this, strict rule has been continually undergoing modifications, in order to encourage and facilitate the operations of mercantile traffic. If this could become a new question in the states of the Union, or even in England, we believe the courts would regard mercantile partnerships as persons in law capable of sustaining or defending suits when brought by or against them in that capacity. We are now in that very situation, and we think it better to lay down such a rule in the commencement as will not require continual alteration. This rule will be to permit the plaintiff to make his. legal demand for payment under the very name by which the credit was given.” (E. A. Johnson & Co. v. Jeremiah Smith, Morris [Ia.], 142, 143.)

The following cases affirm the absolute incapacity of a firm as such to participate in litigation: Sheffield v. Barber, 14 R. I. 263; James Reid & Co. v. McLeod, 20 Ala. 576; Frank v. Tatum, 87 Tex. 204. On the,other hand, it was said in Blue Grass Canning Co. v. Wardman, 103 Tenn. 179, although the statement was not. necessary to the decision: yet the omission of their names did not make the process void.” (Page 181.)

“The plaintiffs in error were sued in their firm name and publication was made for them in that name. While it would have been proper, for greater regularity and certainty, that the names of the members of the firm should have been given in the original papers,

In Norris Co. v. Levin’s Sons, 81 S. C. 36, a return of foreign service on a firm by notice to one of its members, the others not being named, was held sufficient. And the use of the firm name alone in the designation of the parties has often been held to be a mere irregularity. (15 Encyc. Pl. & Pr. 840, 841.)

In the present case every practical purpose of a publication summons was subserved by the procedure adopted. The mortgage had been taken by the firm under the designation of John D. Knox & Co. The published notice addressed in the same manner conveyed the necessary information as well as though the names of the partners had been stated. In this instance it might have been practicable to learn the names of the partners, but in another that might be difficult or impossible. If the service attempted was entirely ineffectual it must be because the firm as such had no capacity to be sued, not because it had not received constructive notice in the manner prescribed by the statute. ' We think the use of the firm name alone was only an irregularity and did not render either the service or the judgment void.

Moreover, we conclude also that in view of the liberal interpretation to which its age entitles it the tax deed is good upon its face. Two defects are pointed out— that it does not show the amount for which the land was bid in by the county treasurer, nor that the county clerk ever assigned a tax-sale certificate to the person to whom the deed was issued. The deed, after reciting-that the property was offered at the tax sale for the amount due against it, continues: “And, whereas, at the place aforesaid, said property could not be sold for-the sum of nine dollars and forty-two cents, being the' whole amount of tax and charges thereon, the same' was bid off by the county treasurer for said county.”' This sufficiently implies that the land was bid off by the county treasurer for $9.42, the amount for which it had been offered. The situation is very different from that presented in Robidoux v. Munson, 75 Kan. 207, where there was nothing to show what amount was chargeable to the land at the time of the sale. The amount due against the delinquent property, the amount for which it is offered, and the amount for which the treasurer bids it in for the county are necessarily all the same. The statutory form (Gen. Stat. 1901, § 7676) adapted to the conditions here presented provides a blank for stating this amount in dollars and cents in but one place, and that is in connection with the recital of the amount bid by the treasurer. In Robidoux v. Munson the statutory form was otherwise followed, but this blank was not filled, nor were the figures given elsewhere in the deed. Here, however, while the figures are not found in the place indicated by the statute, they are volunteered in connection with the statement that the property could not be sold for the amount against it, and the deed therefore supplies all the information required.

The deed recites that after the property had been bid in by the treasurer for the county one J. R. Myers paid to the treasurer a sum equal to the cost of redemption, but fails to add that the county clerk assigned the certificate of sale to him. That being a formal recital, relating to a proceeding which is the same in all tax sales of the same class, may perhaps be more readily supplied by inference than if it concerned data applicable to this particular transaction, such as the date or amount of a payment. The suggestion is made that inasmuch as it was the duty of the clerk to execute an assignment whenever the treasurer received the money, it may be presumed in aid of the tax deed that the act was performed. It is not necessary, however, to rely merely upon this presumption. There is a further recital that the taxes for the subsequent years were paid by the “purchaser,” manifestly referring to Myers, who was the grantee in the deed. One does not become a purchaser by simply paying a sum of money to the county treasurer, but by making such payment and receiving in return an assignment of the tax-sale certificate. The recital that the subsequent taxes were paid by the purchaser fairly implies that such an assignment had been made.

The judgment is reversed and the cause remanded for further proceedings in accordance herewith.