294 S.W. 1067 | Ky. Ct. App. | 1927
Reversing.
Charles Greenfield and others were interested in an oil lease in Magoffin county known as the W.B. Bailey lease. He and his associates were conducting the development and operation of this lease under the firm name of the Warrick Petroleum Company. As this court held in the case of Outram et al v. Hudson et al.,
The cashier of the appellee bank who negotiated this mortgage for his bank with Greenfield testified that he *255 knew that all Greenfield had in the oil lease was "a working interest." He admitted that he had in an indirect way understood that the financing of the lease was being done by assessments. In answer to question 25 on page 81 of the transcript, he said:
"Yes; I knew that the property was being developed by assessments but I didn't know that Mr. Outram was allowing Charlie Greenfield to drag along with his assessments in such a manner."
Reading all of the deposition of Mr. Turner, the cashier, we are convinced that he knew when he took this mortgage for his bank how these men were associated together. Such an association is what the law calls "a mining partnership." Now, although a mining partnership differs in some respects from an ordinary partnership, especially so far as the delectus personae is concerned, yet it does not differ from the ordinary partnership so far as the "partnership lien" is concerned. 40 C. J. 1147, 1151; 18 R. C. L. 1201 et seq. As said in 40 C. J. 1151:
"Each member of the mining partnership has a lien upon the partnership property for the debts due the creditors of the partnership and for moneys advanced by him for its use which he may enforce in equity without any previous agreement among the partners that such lien shall exist.
See, also, 20 R. C. L., 1030.
This lien exists as long as the partnership does. Under this principle one who takes a mortgage on a partner's interest in a firm takes it subject to the partnership lien. As said in 40 C. J. 1152:
"A partnership lien is superior to the lien of a pledgee where such lien was taken without the consent of the remaining partners."
Since the appellee bank took its mortgage with full knowledge of the character of the interest which was being put in pledge, and as the lien here sought to be enforced by the "trustee" is the partnership lien to which the lien of the mortgage is inferior, it follows that the lower court erred in holding the lien of the appellee superior to that of the appellant. Its judgment is therefore reversed, with instructions to enter a judgment adjudging the lien of the appellant superior to that of appellee. *256