Kellogg v. Olson

• Citation: 34 Minn. 103,24 N.W. 364
• Parties: KELLOGG AND ANOTHER, COPARTNERS, ETC., v OLSON AND OTHERS.
• Decision Date: 10 August 1885
• Court: Minnesota Supreme Court

34 Minn. 103

24 N.W. 364

KELLOGG AND ANOTHER, COPARTNERS, ETC.,vOLSON AND OTHERS.

Supreme Court of Minnesota.

Filed August 10, 1885.

Appeal from a judgment of the district court, Renville county.

Stringer & Seymour, for respondents, Henry B. Kellogg and another, copartners, etc.

Arctander & Quale, for appellants, Sevard N. Olson and others.

VANDERBURGH, J.

Plaintiffs, who were partners, held a chattel mortgage upon a certain elevator, the ownership of which is in controversy in this action. The mortgage ran to them in their firm name, and was given to secure a partnership debt. Upon default of the mortgagors to make payment as therein provided, plaintiffs proceeded to foreclose and bid in the mortgaged property. The foreclosure, however, was ineffectual to cut off the right of redemption by reason of irregularity in the proceedings. In the mean time, Brown & Spicer, the defendants, who are strangers to the title of the mortgagor, had purchased and obtained possession of the elevator under a delinquent tax sale, to satisfy certain taxes against the mortgagors, but which sale the court finds to be void, because there were no delinquent taxes due from them. The plaintiffs, after such attempted foreclosure, brought this action to recover the possession of the property in dispute, and claimed the immediate possession thereof, which was delivered to them by the sheriff, and which they have since continued to hold. The answer, after taking issue upon plaintiffs' title, proceeds affirmatively to allege and assert title and right of possession in the defendants Brown & Spicer, and demands a return of the property or its value. Subsequently Brown & Spicer interposed a supplemental answer in which they allege the value of the use of the elevator during the pendency of the action and while detained from them, for which they ask judgment for damages against the plaintiff.

The action was litigated and determined upon the merits under these issues involving the validity of the title of the respective parties to the property. The elevator was treated as personal property held by a title separate from that of the land on which it was built. After its purchase at the tax sale, the defendants Brown & Spicer put an agent in charge thereof to watch and take care of it. The plaintiffs before suit brought demanded possession of such agent, who refused to deliver the same, and notified them that he had no authority in the premises, and that he held it for Brown & Spicer.

1. As a partnership may purchase and hold personal property, there is no reason why it may not take security, by way of mortgage, upon the same to secure a partnership debt. Tidd v. Rines, 26 Minn. 211, S. C. 2 N. W. REP. 497, is referred to as holding a contrary doctrine as to real estate mortgages; but while a distinction between the two classes of mortgages will readily suggest itself, there is nothing in that case warranting the inference that if it were alleged and shown who composed a partnership in whose name a mortgage was taken, it might not be enforced by the members of such partnership. And see Chicago Lumber Co. v. Ashworth, 26 Kan. 212; Sherry v. Gilmore, 58 Wis. 332, 333;S. C. 17 N. W. REP. 252. The legal title to the mortgaged property passed to the plaintiffs by the mortgage, and upon default they were entitled to the possession without foreclosure, unless otherwise stipulated, subject to the mortgagor's right of redemption. Fletcher v. Neudeck, 30 Minn. 125;S. C. 14 N. W. REP. 513.

2. The demand upon the agent was, under the circumstances, unavailing. He had no general authority to act for defendants, and none to make a delivery of the property. He discharged his duty when he notified the plaintiffs of the character of his possession, and...