First Nat. Bank v. Cody
| Decision Date | 27 January 1894 |
| Citation | 19 S.E. 831,93 Ga. 127 |
| Parties | FIRST NAT. BANK OF GAINESVILLE v. CODY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A written instrument, executed and attested as a deed, and which, among other things, conveys title to real and personal property, the grantor reserving to himself in the instrument a power of sale, upon specified trusts and conditions, is entitled to be recorded as a deed, and, when properly recorded, may be introduced in evidence without proof of its execution; but recitals of fact therein are not evidence of the truth of such recitals, as against one who was not a party to the instrument.
2. It was error to admit in evidence an unsigned entry upon a deed offered to show the time it was filed for record.
3. When, in answer to a proper question, illegal testimony was elicited, there was no error in ruling it out on motion of the opposite party. An admission by the plaintiff's intestate, in his lifetime, to the agent of the defendant, a corporation, was inadmissible evidence, the statute making the agent an incompetent witness to prove it.
4. Where, in a written contract for the formation of a partnership, it was stipulated that the partnership was to begin when certain stocks of goods were consolidated and inventoried, it was competent for the parties to waive this stipulation, and begin business as partners before the time originally contemplated; and it was error to charge that no partnership could exist until the stocks of goods had been put together, and an inventory thereof taken in full.
5. Where one inserts in a newspaper an advertisement of a partnership between himself and other persons, which does not in fact then exist, the latter are not affected by such advertisement, in the absence of evidence showing they knew of and acquiesced in it.
6. After a partnership is dissolved by the death of one of its members, the acceptance by a creditor of a renewal note executed in the firm name by one of the survivors, and extending the time of payment fixed by the note renewed discharges the individual liability of all the partners except the one who executes the renewal note, but does not discharge the partnership assets. These remain liable, in equity, at least, for the payment of the debt.
7. If after the dissolution of a partnership by the death of one of its members, a surviving partner, in the name of the firm conveys land which constituted a portion of the partnership assets, in part payment of a debt for which neither the firm nor its assets were liable, the creditor holding such debt took nothing by the deed, except the individual interest in the land of the partner who executed the deed, and took that interest subject to the payment of the partnership debts, and subject, also, to any prior conveyance of the land by that partner, of which the creditor had notice.
8. If, after the dissolution of a partnership composed of three members, by the death of one of them, one of the two survivors, with the consent of the other, assumed possession and control of the partnership assets for the purpose of applying the same to the partnership debts, he thereby became the liquidating surviving partner, and could, without any express assent of the cosurvivor, apply such assets to any bona fide debt to which they were subject, although such debt was not one intended to be provided for in the arrangement between the two survivors, and was in fact unknown to the cosurvivor when the arrangement was made. As to assets consisting of partnership realty, used by the firm in its business, the liquidating partner had no power to convey the legal title, except in so far as his own interest was concerned; but he could convey the equitable title of all the partners in such realty to a creditor of the partnership in payment, or part payment, of a bona fide debt chargeable upon the partnership assets. If the debt in question was infected with usury, this fact alone would not invalidate the conveyance; the payment being applied only to the principal and the lawful interest, and the usurious contract having been made prior to the payment.
9. As to questions made in the grounds of the motion for a new trial, not expressly covered by the foregoing rulings, the court committed no error requiring a new trial.
Error from superior court, Hall county; C.J. Wellborn, Judge.
Equitable petition by Laura A. Cody and others, administrators of James M. W. Cody and others, against John L. Palmour, H. H. Dean, the First National Bank of Gainesville, and Jeptha M. Cody. Judgment for petitioners, and defendant bank brings error. Reversed.
Under Code, § 267, par. 15, requiring clerks of the superior court to make minutes on all conveyances left for record, and the day recorded, to be signed officially, it was error to admit in evidence an unsigned entry on a deed to show the time it was filed for record, though the objection was not that the clerk did not sign the entry, but that the entry was made by a person assisting the clerk.
The following is the official report:
On January 14, 1891, the administrators of James M. W. Cody brought an equitable petition against John L. Palmour, H. H. Dean, the First National Bank of Gainesville, and Jeptha M. Cody. The last named filed an answer in the nature of a cross bill, and made common cause with the plaintiffs. The suit was defended by the bank. Palmour did not appear or plead, and it appeared from the return of the sheriff that he was not served, and was living without the state, whereupon an order was passed that the plaintiffs have leave to perfect service on him, by publication or otherwise, in accordance with the law. The object of the petition was to obtain a decree declaring that a note given to the bank by Palmour, and signed with the partnership name of Palmour, Cody & Co. was an individual liability of Palmour, and not of the partnership, and to cancel a deed executed by Palmour in the name of the partnership to the bank, conveying land which belonged to the partnership, in part payment of the note, it being alleged that the deed was void as title, for the reason already stated, and for usury charged in the loan. The petition further sought to have certain notes and accounts due the late firm of Palmour, Cody & Co., and which had been turned over by Palmour to H. H. Dean, put into the hands of a receiver, and the proceeds applied to the payment of the debts of the partnership, etc. The jury found for the plaintiffs,--that the note held by the bank was an individual note of Palmour, that the deed to the bank was void, and that the notes, accounts, and money in the hands of Dean be applied to the legal debts of the firm of Palmour, Cody & Co. The bank and Dean moved for a new trial and the motion was overruled.
It appears from the evidence that in the early part of 1889 (the exact day is in dispute) a partnership was formed between Palmour and the two Codys for the transaction of a mercantile business. A paper put in evidence by the plaintiffs is dated March 16, 1889, and recites that this agreement is to take effect when the stock of Palmour & Smith and of Jeptha M Cody is put together, and inventory in full taken, which shall be within the next 20 or 30 days. John L. Palmour agrees to furnish a stock of goods described, and the lot of realty in question, and the Codys agree to furnish a stock of goods and furniture then in Warrenton. It is further agreed that in this way a capital of $20,000 is put in; Palmour owning half, and sharing half of all the profits and losses during a 12-months business, and the Codys owning the other half, and sharing half the profits and losses for one year, or as long as the business is thus run; "contract in full to be drawn in next 30 days." James M. W. Cody died October 12, 1889. Palmour is now insolvent, and a nonresident. He was a director in the bank, after the death of James M. W. Cody, to the close of that year. The plaintiffs introduced a note for $2,250, dated May 22, 1890, payable to them by John L. Palmour, and due December 1, 1890; and a paper of the same date, signed by Palmour, reciting that it was between him (one of the surviving partners of the firm named), of the one part, and the plaintiffs, of the second part. It further recites that the party of the first part, as one of the surviving partners, at the general winding up and settling of the business of the firm between him and the parties of the second part, has this day turned over and delivered to them and to Jeptha M. Cody a lot of wagons and buggies, of the estimated value of $800, which are a part of the remaining assets of the firm, and has delivered to the parties of the second part his note for $2,250, already described; that in order to secure this note he sells and conveys to the parties of the second part the lot of land in dispute, and also a number of notes and accounts, describing them. The real estate is to be sold, and the notes and accounts are to be collected by him, without expense to the estate of James M. W. Cody, and the proceeds of the sale of the land and the amounts collected on the notes and accounts are to be held by him in trust for, and applied, as fast as collected, to, certain named debts due by the late firm, "which are all the debts said firm owes" (the claim of the bank not being herein mentioned). After the above-described debts of the firm are paid by the party of the first part, the balance of the proceeds of the land, and the amounts collected on the notes and accounts, are to be held by him in trust for, and applied, as fast as collected, to, the payment of the note this day given by him to the parties of the second part, and the balance of the proceeds are to belong to him, unincumbered by any lien or contract. It is not...
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