65 Ga. 71 | Ga. | 1880
The above two cases involving the same subject matter, and arising out of the same decision of the court below, were argued together and will be disposed of as one case.
The litigation arose over the distribution of a fund brought into court by the sheriff, under a sale made by virtue of certain fi. fas. in favor of Printup Brothers & Co. et al. vs. J. & S. Bones & Co. et al., upon the following statement of facts, as we gather them from a very voluminous record:
City lot No. 118 in Rome, Georgia, was conveyed to John Bones, John Brown, James W. Bones and John S. Bones, May 22d, 1869. City lot No. 119, also in Rome, was conveyed to J. & S. Bones & Co., as a firm, September 4th, 1872, composed of James W. Bones, John S. Bones, John Brown and John B. Dougherty, who, as merchants and partners constituting the said firm, made to Seth Turner their promissory note for $17,500.00, and to secure the payment thereof, also executed to him a mortgage deed to the said lots 118 and 119 in the said city of Rome. This mortgage conveyed to Turner the whole of No. 119 and three fourths of 118, as John Bones, who owned one-fourth interest in 118, was not a member of the firm of J. & S. Bones & Co., nor a party to the contract.
On the 19th of April, 1879, a rule on the petition of Turner was granted, setting forth that James W. Bones, John S. Bones, then deceased, John Brown and John B. Dougherty, merchants and partners, using the firm name and style of J. & S. Bones & Co., had made and delivered to him the said note and mortgage, which rule was served personally upon Brown and Dougherty, and service acknowledged by J. W. Bones for himself and as member of the firms of J. & S. Bones & Co. and Bones, Brown & Co., upon which a rule absolute was granted at the March
At the same term of the couft Printup Brothers & Co. •obtained common law judgments against the said firm of J. & S. Bones & Co., as makers of certain promissory notes, by serving J. W. Bones and John Brown, and against Bones, Brown & Co., as indorsers, by service upon the same partners. It was alleged in the declaration that John S. Bones was dead, who was a member of both firms, .and that the others and John M. Bowie were the survivors, and against whom as such, and against the said firms respectively, judgments were rendered.
The sheriff levied the fi. fas. of Printup Brothers & Co. upon the lots 118 and 119, and it-was agreed by Turner, -the mortgagee, that he sell the title of J. W. Bones, John Brown and John B- Dougherty, unincumbered by the mortgage upon their interests therein. Lot No. 118 sold for $3,100.00 and 119 for $2,100.00. The mortgage fi. fa. .and the fi. fas. of Printup Brothers & Co., with others, contest with each other the distribution of this fund.
To ascertain the lien which each fi. fa. has thereto, fit is necessary to know exactly what the judgments bound, .and what interests the defendants in fi. fa. had in the property sold.
The mortgage of Seth Turner having been foreclosed .as against James W. Bones, John Brown and John B. Dougherty, it covered one-half interest in lot 118, that ■being the interest of James W. Bones and John Brown ; .and it covered thred-fourths interest in lot 119, as James W. Bones, John Brown and John B. Dougherty each 'Owned one-fourth interest therein.
The fi. fas. of Printup Brothers & Co. covered exactly this same property and the partnership interest of J ohn S. Bones, deceased, in lo.t 119, but were all younger than the mortgage' to Turner, whilst they and fire judgment of foreclosure were obtained at the same term of the court. When the property thus levied on came to sale
It is to be remembered that'John B. Dougherty had no interest whatever in lot No. 118, and that John S. Bones, owning one-fourth of the same lot in his individual name, and not having been in life; nor having any representative served, his individual property was not bound and could not be sold under the common law or Printup Brothers & Co. fi. fas.
We think, therefore, that the mortgage fi. fa. was entitled to all the money subject to distribution from the sale of lot 118, and to all which lot 119 sold for-, except such amount as John S. Bones’ equity of redemption may have brought at said sale, if, indeed, it brought anything, as the mortgage still rests upon it, and all the property sold did not pay one-third of the amount due thereon.
We laydown the following legal principles as applicable to the points made in this case: ,
1. Where a deed to land is made to partners in the firm name they nevertheless hold the same as tenants in common, and if in the firm name they make a promissory note with mortgage on the land, and in the body thereof use the firm name, but execute it in their individual names, it is a proper legal conveyance from the partnership as also from the partners themselves to the mortgagee, and it
2. One member of the firm cannot convey by deed or mortgage partnership land, though in the partnership-name and to secure a partnership debt contracted within the scope of the partnership business, without previous-authority, or subsequent ratification by his copartners.. Such an instrument only conveys his own interest; and though executed in the name of the partnership if it be a. mortgage, may be foreclosed as to the interest of the person who makes it. £ Brock. 456; 1 Metcalf, 518; 15. John., 159; 3 McL., 27; Coll, on Part., 394; 61 Ga., 676..
3. When a suit is brought against copartners or against the survivors of a partnership, it is not necessary to declare against and pray process as to all the members-thereof, and have a return of non est inventus as to those not served, in order to bind their interest in the partnership effects ; in either case, the judgment binds the partners sued and served as to their individual property and all the property of the partnership.
Inasmuch, therefore, as there is no evidence in this-record going to show that the equity of redemption of John S. Bones in lot No. 119 was sold for any given sum, and that the proceeds of the sale will pay less than one-third of the amount due on the mortgage of Seth Turner,, it is ordered that the judgment of the court be reversed, as to the distribution of the fund, and that the same be-paid over on the mortgage fi. fa., less the costs of the-levy, and advertisement under the fi.- fas. of Printup. Brothers & Co., and the expenses of the sale of said property.
Judgment reversed.
