52 S.E. 125 | N.C. | 1905
This is an action for the recovery of crops, instituted in justice's court, brought by appeal to the Superior Court, and heard by Peebles, J., who by consent, found the facts respecting the title to the land upon which the crops were grown. For some time prior to 1893, Jas. Webb, (449) Jr., and Jos. C. Webb, were engaged in mercantile business, as co-partners under the firm name and style of Jas. Webb, Jr., Bro. Jno. C. Webb died in 1893, leaving a last will and testament, properly executed and proven to pass real and personal estate, naming Jas. Webb, Jr., executor, who duly qualified. He bequeathed and devised his entire estate to his widow, Alice Webb.
With the full knowledge and consent of said Alice Webb, the surviving partner and executor continued to conduct the said mercantile business under the same name and style. Mrs. Webb did not become a member of the firm, but permitted and consented that the executor should use her husband's estate to carry on the business as it was done prior to his death.
James Webb, Jr., died in February, 1904, intestate, leaving as his heirs at law and distributees, Mary Webb, his widow, and Brown R. Webb, and J. C. Webb, his sons. The estate of Jos. C. Webb was not settled at the time of the death of said Jas. Webb, Jr.
A. J. Ruffin and H. W. Webb were appointed and duly qualified as administrators of Jas. Webb, Jr., deceased. T. N. Webb and J. Cheshire Webb were appointed administrators, with the will annexed, of Jos. C. Webb, deceased. On 15 February, 1904, the said administrators joined in the publication of a notice to debtors of the firm of Jas. Webb, Jr., Bro., to make prompt payment, concluding: "We take great pleasure in assuring the old friends and patrons of this firm that the business is to be continued indefinitely under the same style and management. *357 and we earnestly solicit the continuance of your valued patronage, promising to give you, at all times, the best possible values, together with the most courteous treatment." Neither of the administrators put any money into the business, nor did they intend to form a new firm, but did intend to give notice that the business would be continued under the firm name and style of Jas. Webb, Jr., Bro., with the funds belonging to the estates of the deceased partners, which had been (450) invested in said business. This action was taken with the full knowledge and consent of the heirs, distributees, devisees and legatees, of both of said deceased partners. On 18 July, 1904, the property and assets of the firm of Jas. Webb, Jr., Bro. were sold to H. W. and J. C. Webb. The old firm was continued for the sole purpose of collecting the debts and settling the business. J. Cox Webb was appointed agent to collect the debts due the firm.
Jas. Webb, Jr., Bro., held a judgment against defendant Miller, duly docketed in Orange County. D. S. Miller held a mortgage on the land of defendant Miller, which he duly foreclosed under power of sale therein. The crops in controversy were growing on the lands at the time of the sale. J. Cox Webb became the purchaser at the sale, paying the purchase price from money collected by him on account of the debts due Jas. Webb, Jr., Bro., and took deed therefor to Jas. Webb Jr., Bro. Soon thereafter, Alice H. Webb, widow of Jos. C. Webb, and B.R. Webb, J. Cox Webb, children, and Mary B. Webb, widow of Jas. Webb, Jr., executed a deed for said land to plaintiffs. The land brought at said sale an amount in excess of the mortgage debt. In an action brought by defendant Miller, the administrators of Jas. Webb, Jr., and Jos. C. Webb intervened; the said Miller claimed and recovered on account of his homestead interest in said land, $112.75, the balance, $55, being applied to the judgment held by said administrators. His Honor was of the opinion, upon the foregoing facts, that as the title to the land did not pass by the deed from D. S. Miller to Jas. Webb, Jr.,
Bro., the plaintiffs acquired none by the deed of Mrs. Alice Webb and others. He rendered judgment dismissing the action. The plaintiffs excepted and appealed.
His Honor was of the opinion that there was no (451) such person or partnership in existence as Jas. Webb, Jr., Bro. at the time of the sale of the land, and upon the elementary proposition that, to constitute a valid deed of conveyance, there must be a grantor, *358
grantee and thing granted, the deed or paper writing having the form of a deed was inoperative. It is of course common learning that the death of a partner, in the absence of any stipulation in the articles of copartnership to the contrary, works an immediate dissolution; that the title to the assets vests in the surviving partner, impressed with a trust to close up the partnership business, pay the debts and turn over to his personal representative the share of the deceased partner. We speak only of the personalty in this connection. The facts found by his Honor show that upon the death of Jos. C. Webb, his widow, sole legatee, permitted the surviving partner, who was also executor of her husband, to continue the business under the name of the old or original firm. This condition, with her consent, continued for nine years. The only persons interested in the assets, other than creditors, were Jas. Webb, Jr., and Mrs. Alice Webb. His Honor finds that Mrs. Alice Webb did not become a member of said firm so as to be personally responsible for debts incurred after her husband's death. We do not see how this is material to the questions presented upon this appeal, and we do not express any opinion regarding her liability to creditors, notwithstanding her purpose or intention. Certainly she and the executor were the real, beneficial and only owners of the property and the profits accruing from the business. Upon the death of Jas. Webb, Jr., the same arrangement was made and continued by all of the parties in interest. They were all sui juris, and we can see no reason why inter sese it was not competent for them to permit their property, with the consent and (452) cooperation of the administrators, to remain in common and be used for their joint benefit, adopting any name or style agreeable to them for more easily and conveniently carrying out their purpose. The fact that they chose to carry on the business under the name of the old firm, does not change their rights. They could, if they had so preferred, selected any other name. Of course, the old firm, as originally constituted, was dissolved by death of the partners. Whether the parties so intended or not, the legal effect of what they did was to create a new and original arrangement for carrying on business, the capital of which was contributed by the beneficial owners of the property. The fact that they selected the administrators of the deceased partners to manage the business so far as the questions presented upon this record, is immaterial. It may be that if debt were contracted, liabilities not contemplated would have attached. For the purpose of this appeal, the transaction consisted of an arrangement between the distributees and legatees with the approval of the administrators to use the property for a joint and common benefit. The widows and children of the deceased partners were the owners and the administrators were their agents. Viewed from *359
this standpoint, we have parties conducting business in a manner which in a limited, if not absolute sense, constituted a partnership adopting a name, which, by reason of being well known and enjoying the confidence of its customers, was valuable to them. It was entirely proper, and not unusual, that they should do so — there was no concealment of the personal status of the parties. They gave notice of the death of the original partners. It is not uncommon for a business which, by reason of the credit and reputation for integrity of the founders, possesses value to be conducted, after their death, under its original name. In such cases it is the business of the living owners, and contracts made by or with them, under the name adopted, have all the force and effect as it made in the names of the individuals to whom it belongs. A man, if he chooses, may carry on business in a name other than his (453) own, or as said by Erle, C. J., in Maughan v. Sharpe, 112 E. C. L., 443: "It is clear that individuals may carry on business under any name and style which they may choose to adopt." That a deed to a partnership, in which the partners are not named, is valid, is abundantly established by this, and many other courts. In Murray v. Blackledge,
The same is held in Blanchard v. Floyd, 93 Ala., 53, Coleman, J., saying: "If the proof shows that Blanchard Burrus, a partnership, were the purchasers of the land they owned as tenants in common an equitable interest in the land." In Mewage v. Burke,
Williams, J., said: "In this case, I apprehend the meaning of the grant is plain; the deed purports and intends to convey the goods to those persons who use the style and firm of The City Investment and Advance Co. They may or may not be a corporation, but, where (455) it is ascertained that those who carry on business under that name are the defendants, the deed operates to convey the property to them." Sheppard's Touchstone, 236. His Honor, in his judgment, cites Nealv. Nelson,
Reversed.
Cited: Fidelity Co. v. Grocery Co.,