Bohler v. Tappan

• Decision Date: 01 January 1880
• Citation: 1 F. 469
• Parties: BOHLER, HUSE & CO. v. TAPPAN.
• Court: U.S. District Court — Eastern District of Arkansas

1 F. 469

BOHLER, HUSE & CO. v. TAPPAN.

United States District Court, E.D. Arkansas.

1880

Thwealt & Quarles, for plaintiffs.

Tappan & Horner, for defendant.

Burnett & Turner were partners in the business of keeping a wharf-boat at Helena. The firm owned a wharf-boat, which was purchased and used for partnership purposes, and was partnership property. This wharf-boat was purchased from Johnson, partially or wholly upon credit. Burnett, one of the partners, died before the wharf-boat was paid for, and after his death, and on the twenty-fifth day of April, 1879 Turner, as surviving member of the firm of Burnett & Turner transferred the wharf-boat, by deed of trust in the nature of a mortgage, to Tappan, to secure the payment to Johnson of the balance of the purchase money. The deed of trust was duly acknowledged and recorded on the twenty-fifth of April, 1879.

On the twelfth of March, 1879, Bohler, Huse & Co. recovered a judgment against Burnett & Turner, in the United States district court, at Helena, for $1,399.78, and costs. On the twenty-sixth day of April execution was issued on this judgment, and on the thirtieth day of the same month the writ came to the hands of the marshal, and was levied on this same wharf-boat. By agreement the boat was sold, and the proceeds paid into the registry until it should be determined whether the plaintiffs in the execution, or the beneficiary under the deed of trust, was entitled thereto.

CALDWELL J.

The precise question in this case, on the agreed facts, is whether a sole surviving partner can make a valid transfer by deed of trust in the nature of a mortgage of personal property, belonging to the partnership, to secure the payment of a partnership debt.

During the continuance of a partnership one partner may transfer personal property by way of mortgage as security for a partnership debt. Milton v. Mosher, 7 Met. 244; Patch v. Wheatland, 8 Allen, 102; Anderson v Tompkins, 1 Brock. (Marshall's Decs.) 456; Harrison v. Sterry, 5 Cranch, 289.

On the dissolution of partnership by the death of one copartner, the right to the possession and control of the partnership effects vests in the survivor, for the purpose of settling up the partnership affairs. He has the legal title to the assets and the exclusive right of disposing of the property, and of collecting and paying the partnership debts. Stearns v. Houghton, 38 Vt. 583; Roys v. Vilas, 18 Wis. 179; ...