53 Vt. 665 | Vt. | 1881
The opinion of the Court was delivered by
This is a bill in equity brought by Charles Q. Stebbins, Charles H. Willard, Frank A. Clark, Sylvester Morse, and Lewis S. Walker, against Wales H. Willard, Harvey Bruce, and Warren H. Willard.
Warren H. and Charles H. were partners owning real estate, subject to a mortgage to the Jamaica Savings Bank. The mortgage was foreclosed and a decree obtained. The orator Stebbins paid the decree at the request, and for the benefit of, Charles H., taking, at the time of such payment, a conveyance of the interest of Charles H. in the premises, executed by said Charles H. and his wife. The orators, Clark, Morse, and Walker, are partnership creditors, having attachment liens upon the partnership property. Warren H. Willard, after the execution of the mortgage
I. Stebbins, when he paid the decree in favor of the bank,’had no interest in the premises save that acquired at the time by virtue of the deed from Charles H. and wife ; and the defendants claim that as he was a volunteer in the matter, his payment operated as an extinguishment of the mortgage. This might well be claimed, had he made the payment in his own behalf, and for his own benefit, and not at the request of Charles H. Downer v. Wilson, 83 Vt. 1. But he made it in the interest of the orator, Willard, for his benefit, and by an arrangement with him, in order to protect the property of the partnership and prevent its passing under the decree.
We think the same force and effect should be given to the payment by Stebbins as though it had been made by Charles H. himself. The latter had no means, was unable to make the payment, and so procured Stebbins to make it for him. Charles H., and the defendants, as the owners of Warren’s interest in the partnership, were equally liable to remove the incumbrance then resting as a burden upon the common property, and for which Charles H. and Warren were originally jointly liable. They were jointly interested in the property ; and the principle is too well settled to need the citation of authorities, that one partner, or tenant in common, may pay a mortgage debt and keep the
II. As to the Hosea Willard mortgage, it should be subject to the bank mortgage and the payment of the other partnership debts. It was given after the partnership debts accrued, and covered the separate property of Warren only; and although the greater part of the consideration may have been used by him as his contribution to the capital of the firm, it did not become a firm debt, and can in no way be treated as a lien upon the property of the firm. This results from the well-known principle in equity, that the creditors of an insolvent partnership are entitled to have the partnership assets applied in satisfaction of their debts in preference to the creditors of the individual partners ; each partner had, by implied contract, a lien upon all the partnership effects until all the joint debts are paid, his interest being his share in the surplus after all claims against the partnership are discharged. See cases cited in Rob. Dig. 500, sec. 32.
III. We think the claim for the services of the defendant Warren should be disallowed. It comes within the general rule that partners are not entitled, except by special agreement, to charge each other for services rendered in the affairs of the firm ; each one is taking care of his own, and the law never undertakes to settle between partners their various and unequal services in relation to the joint concerns.
This disposes of the questions raised, and the result is, the de- • cree of the chancellor in favor of the orators is affirmed, and cause remanded.