Page v. Thomas

• Decision Date: 10 March 1885
• Parties: PAGE v. THOMAS.
• Court: Ohio Supreme Court

43 Ohio St. 38

1 N.E. 79

PAGE

v.THOMAS.

Supreme Court of Ohio.

Filed March 10, 1885.

Error to district court of Franklin county.

For many years prior and up to March 16, 1876, Benjamin E. Smith and John F. Bartlit were partners, under the firm name of Bartlit & Smith, in the banking business in Columbus. On that day Bartlit died testate, and D. S. Gray was qualified as his executor on the sixth day of October, 1879. Thomas, the defendant in error, recovered a judgment against Smith, and Gray, executor, in the court of common pleas of Franklin county, for over $11,000. The execution thereon was returned unsatisfied. Thereupon, on the first of November, 1879, Thomas filed his petition in this case, seeking to subject the undivided two-thirds part of lot No. 243, in the city of Columbus, to the satisfaction of said judgment. He charges that although the legal title to said lot is in one Henry Miller, yet he holds it in trust as part of the property of the late firm of Bartlit & Smith, and that there is no property of the firm, or individually, liable at law to satisfy said judgment. He seeks to subject this property to the payment of his judgment.

Horatio Page, by cross-petition, asserts prior liens in his favor, and asks that said lot be subjected to satisfy his claims. He sets up judgment, rendered at the January term, 1871, of the Franklin common pleas, against said Benjamin E. Smith, John F. Bartlit, Samuel E. Ogden, and Theodore Comstock, for $12,220. Under the statute then in force, the defendants to that judgment obtained a second trial by giving a proper undertaking. Subsequently, the case was removed to the circuit court of the United States for the Southern district of Ohio, where, on the twenty-eighth of April, 1881, a final judgment was rendered against said defendants for over $19,000. This was followed by a levy on the lot in controversy, May 1, 1881.

Page's second judgment was rendered in the district court of Franklin county, in April, 1875, for over $13,000, against Samuel E. Ogden, Benjamin E. Smith, John F. Bartlit, Theodore Comstock, and R. E. Champion, which, on error to the supreme court of Ohio, was affirmed in September, 1880, and this was followed by a levy, March 10, 1881. These two judgments against Smith and others were the individual liabilities of the several defendants, and not the firm liabilities of Bartlit & Smith.

Thomas' judgment was on the other hand a partnership liability. In his reply to the cross-petition of Page he alleges that for 10 years prior to 1870, and from that time till December 22, 1875, he was a creditor of the firm of Bartlit & Smith, in sums ranging from two to twenty thousand dollars, and from 1871 to December 22, 1875, he was such creditor from twenty to twenty-five thousand; that on the twenty-second of December, 1875, the firm then owed him upon settlement $22,000, evidenced and secured only by certificates of deposit of said banking house of Bartlit & Smith, and on that day he surrendered to them $10,000 of said certificates, and received in lieu thereof a promissory note of said firm, for a like amount, payable in two years, at 8 per cent. interest, and to secure the payment of this note, Smith, his wife joining, gave him a mortgage upon his individual property, being his interest in the opera-house block, Columbus. This was a second mortgage thereon, and upon the foreclosure of the prior mortgage the proceeds of the sale did not reach Thomas' claim, hence nothing was realized therefrom.

This note of $10,000 is the basis of Thomas' judgment, which he seeks to have satisfied by sale of the lot in question. He avers that this lot is the property of the partnership of Bartlit & Smith; that the same was purchased for partnership purposes, and actually used in and for the benefit of the partnership business.

To this reply there was a demurrer. In the court below the case was referred to a master to state the priority of liens. He found that, as between Thomas' judgment against the firm, and Page's two judgments against the individuals composing the firm and others named, the former was prior and paramount. The common pleas and district court so adjudged, and Page seeks to reverse these judgments, and claims priority over Thomas' judgment by reason of the prior statutory liens acquired in January, 1871, and April, 1875, upon the rendition of his said judgments; the legal title at that time, of said lot, being in the individual partners of Bartlit & Smith. It does not appear when the debts, evidenced by the several certificates of deposit surrendered, accrued. All that appears is that Thomas held them prior to the time they were surrendered.[Ohio St. 40]E. L. & H. C. Taylor, for plaintiff in error.

[Ohio St. 41]J. C. Richards and J. T. Holmes, for defendant in error.

JOHNSON, J.

The judgments below are to the effect that the partnership liability to Thomas must first be paid, although Page had acquired a statetory lien by judgment on individual claims. The conceded facts of the case are: First. That the statutory lien of Page's first judgment attached to the lot in controversy as early as January, 1871, and of the second judgment as early as April 15, 1875. At those times, and until June 10, 1875, the legal title to said lot was in Benjamin E. Smith and John F. Bartlit. Second. That the said lot was purchased with the funds of the partnership, for partnership purposes, and was actually used in and for the benefit of the partnership business of said firm of Bartlit & Smith. Third. That the two judgments of Page were [Ohio St. 42]not partnership liabilities of said firm, but that the judgment of Thomas was such a firm liability.

For the purposes of this decision, we will assume, without deciding, that the note taken by Thomas, ...