Jones v. Phelps
| Decision Date | 09 June 1858 |
| Court | Michigan Supreme Court |
| Parties | George C. Jones v. William Phelps and another |
Heard May 27, 1858; May 28, 1858 [Syllabus Material]
Error to Wayne Circuit.
Action of trover, brought by the defendants in error against the plaintiff in error, before Minot T. Lane, a justice of the peace of Detroit, to recover the value of two horses, alleged to have been mortgaged to defendants in error by one Alexander L. Ross, and afterwards sold by Ross to the plaintiff in error, and converted by him.
It appeared in evidence that the horses belonged originally to Ross and one Barry, who were partners under the firm of Ross & Barry; that Ross & Barry were indebted to the defendants in error, and that to secure that debt the mortgage was given; but the mortgage was executed by Ross alone, in his own name, and did not purport to convey partnership property, or to be given to secure the partnership debt; that Barry was in town when the mortgage was given by Ross, and assented to his giving it; and that the firm of Ross & Barry were indebted, when the mortgage was given, for a larger amount than they had assets to pay.
On the trial the mortgage was produced as evidence for defendants in error, when it appeared that Mr. Lane, the justice, was the sole subscribing witness to it. Ross, the maker of the instrument, was called, and admitted, under objection, as a witness to prove the execution of the mortgage; and he having testified to the making of it by him, it was offered and admitted in evidence.
Objection was also taken to the introduction of the mortgage, on the ground that the horses belonged to Ross & Barry, and Ross's deed did not convey the title or property, but only Ross's interest, by way of estoppel, and that interest was nothing, as the firm was insolvent. This objection was overruled.
On the part of plaintiff in error, it was shown that Ross & Barry were indebted to him at the time of the mortgage to defendants in error, and that the horses had been mortgaged to him by Ross, in the firm name, but his mortgage was not executed or filed with the city clerk, till after that of the defendants in error; that afterwards the horses were turned over to him by Ross, in payment of that debt, without any public sale under his mortgage.
Judgment was rendered, by the justice, against plaintiff in error which was affirmed by the Circuit Court, on certiorari.
Both judgments reversed, with costs.
Towle, Hunt & Newberry, for plaintiff in error:
1. Ross was improperly admitted as a witness to prove the execution of the mortgage by himself. As a general rule, the subscribing witness must be called for that purpose. The exceptions to this rule do not, in any case, apply where the disability of the witness was caused by the voluntary agency of the party himself: 2 Cow. & Hill's notes, p. 1266 note 881.
2. The mortgage, if proved, was inadmissible in evidence, for the reason that it was a mortgage made by Ross alone, in his own name, and purporting to convey his individual property, and could not have the effect to transfer the joint property of Ross & Barry.
To maintain this action, plaintiffs must have had a complete property, either general or special; and also a right to immediate possession: 1 Chit. Pl., 148.
This is not a question of the right of one partner to mortgage or assign partnership property; nor whether one partner may, with the verbal assent of the other, bind the firm by an instrument under seal. But to do that, the act must be done in the partnership name, and purport to convey the whole joint interest: Story on Part., § 102; Tapley v. Butterfield, 1 Metc. 515; Andrews v. Tompkins, 1 Brock. 456; Deckard v. Case, 5 Watts 22; Mitten v. Mosher, 7 Metc. 248; Chit. on Bills, 11 Am. Ed., 57; McIntyre v. McLaurin, 2 Humph. 71.
The assent given by Barry can not alter this result. His assent was, it is to be presumed, to the mortgage as it was made; that is, he assented to Ross's making his own individual mortgage.
The sole effect of this mortgage, if it had any effect at all was to convey the individual interest of Ross. That interest was only one-half of the property that should be left after paying all the firm debts. By the evidence, it appeared that their debts exceeded the...
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Doolittle v. J.C. Murray & Co.
...be admitted to show that a mortgage given by an individual was in fact the mortgage of a partnership of which he was a member. Jones v. Phelps, 5 Mich. 218. One B. acknowledged, in writing, the receipt of payment from G. for a private way across his land, it was incompetent for him to show ......
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Doolittle v. J. C. Murray & Co.
...be admitted to show that a mortgage given by an individual was in fact the mortgage of a partnership of which he was a member. Jones v. Phelps, 5 Mich. 218. One B. having acknowledged, in writing, the receipt of payment from G. for a private way across his land, it was incompetent for him t......
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