« AnteriorContinuar »
son of the fiction of tenure and estates, and all the follows: “Seeing that the law is excerpted out of resulting doctrine of uses, and give to the law of the very middle of moral and natural philosophy, realty the simplicity of that of personalty. Let us how should these fools have understood it, who par hope that when the threatened reform of our land Dieu, have studied less in philosophy than my laws is taken hand, the alterations and mend- mule.” This is really delicious. The New York ments to be made will be comprehensive and com- codifiers, we believe, never received any compensaplete, and be a final settlement of the protracted tion, except on one occasion a small sum to reimquestion of the amendment of our real property law. burse their expenses for clerk hire, travel, etc. It is hardly necessary to add that the views thus advanced are those of an individual member of our society only, and that the council over which I back, of late. In a case in 86 Missouri, he says:
“Our only Sherwood,” J., is humping up his have the honor to preside for the year are in no
“Called upon as one of the judges of this court to way party or privy to their expression."
say whether I concur in the foregoing opinion, I
say I dissent, and I say so for these reasons. It is not often that such a combinatiou of frank- “What did this court do? Did it continue to ness and ignorance is found as is exhibited by one
wallow in the slough of flagrant misapprehension of the Californian codifiers, according to a state into which it had fallen? Nay, verily.” “ Is it right ment given in the last number of the American Law to punish the vigilant and reward the negligent ? Revicu, copied from a California newspaper pul- Queer law and justice that." The italics are the lished a number of years ago. The account is as judge's. This was at April term, 1885, long befollows, and relates to some alleged mistake or de- fore the thermometer marked 110° in the shade fect in the Code: “The codifier — who appears at St. Louis. from his letter to be a much more sensible man than one would think (judging only from the
Another vacancy on the bench of the third judicodes) – wrote that it was a bad thing, and that cial district of our State has been made by the he didn't see what was to be done about it, but that death of Justice Osborn. This was an event not the commission was not responsible for it; that all unexpected, for he has long been a great sufferer they had done was to copy the code of that emi- has been unable to do the work which should have
from an incurable disease. For several years he nent codifier, Mr. David Dudley Field; that it was evidently the intention of the Legislature that the
fallen to him, and the legal business of the district commission should pursue this course, for if they had
has been seriously delayed in consequence. Justice wanted a new code made they certainly should have
Osborne was a fairly good lawyer, of a bright and known better than to refer the matter to them; that quick mind, of very courteous and dignified manit couldn't be expected that a commission of three ners, unquestionable uprightness and fairness, and men, without any special training or experience for
a remarkable kindness and considerateness. His the purpose, could complete in two years a work for of the district have submitted with patience to the
personal qualities were so winning that the lawyers which Justinian had found it necessary to employ the great Tribonian, and seventeen other of the very serious obstruction to business caused by his most eminent lawyers in the Empire during many hope for recovery, and occasional respites have
long feebleness, He however has hoped against years; a work of such transcendent difficulty that seemed to warrant his expectations. But he is now the greatest of English jurisprudents, Austin, had thought it necessary to recommend that a large tle a spirit as his deserves the good words and ten
at rest from all his sufferings, and so kind and gennumber of the ablest men should be especially edu
der thoughts of all who knew him. The writer of cated for it, and should devote their whole lives to it; a work, finally, so extensive that it had taken him, in which he said: “No one has ever had a
these lines once received a letter of sympathy from even Mr. David Dudley Field some time to accomAs for himself, he said he never had pre
stormier sea to navigate than I, and from experitended to be much of a codifier, but the position is always darkest just before day.””
ence I can vouch for the truth of the old adage, 'It was offered to him with a good salary, and he believe that he has now sailed into a peaceful har
We hope and didn't feel called upon to decline it; that he made bor where it is ever light. He was but fifty-one it a rule never to decline any thing that was offered
years old — too young to die, but not too yourg to on account of his own incompetency — that being a matter that concerned only those who employed and respect for the gallant fight he made against
have earned love for his gentle and manly qualities, him; that if any one were to offer to employ him
temptation and suffering. to make a piano or a steam engine which was as much out of his line as codifying itself — he would accept the offer, provided always that it was on a
NOTES O1 CASES. salary, and that he was not to be paid by the job; that in his opinion the other commissioners were no IN State v. White, New Hampshire Supreme Court, better than himself, and finally that the whole commission reminded him very forcibly of Pantagruel's to a complaint for beating a drum within the comopinion of the French lawyers, which he quoted as pact part of a town, that it was done in the per
formance of religious worship, and caused no ac- rights, without coming in conflict with any of those
* By this provision unlimited freedom of ing the relations of trust and confidence which mar. conscience and religious belief and profession is se- riage presupposes, and which are made by the marcured to every person, but it affords no justification | ital contract an essential part of the marital relafor acts or practices in religious services which dis- tion. In the progress of society juster notions of turb the public peace, or disturb others in their re- the nature of the marriage contract have obtained, ligious worship; and a statute prohibiting acts hav- and accordingly the theory of servitude formerly ing a tendency to endanger the public peace, or to attached to the status of the wife has been superdistract the attention and interrupt the quiet of seded by the theory of equality. Her legal existothers, is not in conflict with this constitutional ence is now recognized. She may hold property, provision, although the prohibited acts may form a earned, purchased, inherited or devised for her part of the services of religious worship. Religious own benefit. She may contract and sue and be liberty as recognized and secured by the Constitu- sued in her own behalf. Her civil rights are no tion does not mean a license to engage in acts hav- longer suloject to her husband's control. She may ing a tendency to disturb) the public peace under cxercise the right of suffrage in educational matters, the form of religious worship, nor does it include and be elected to any school office. But there is the right to disregard those regulations which the nothing in the series of statutes by which her rights Legislature has deemed reasonably necessary for and privileges have gradually approximated an the security of public order. A reasonable meas- equality with those of her husband that abrogates ure of prevention to avoid disturbance is not an in the marital rights of trust and confidence incident fringement of constitutional rights. The police to the relation in all stages of society. On the power of the State extends to the protection of the other hand, the existence and continuance of these lives, health, comfort and quiet of all persons, and relations is recognized and enforced in the statute the protection of all property within the State; and rendering husband and wife competent witnesses persons and property are subjeeted to such re- for and against each other, by expressly excluding straints and burdens as are reasonably necessary to them when their testimony 'would lead to a violasecure the general comfort, health and prosperity. tion of marital confidence.' Gen. Laws, chap. 228,
The State has authority to make regula- SS 20, 21; Clements v. Marston, 52 N. H. 31. And tions as to the time, mode and circumstances under the progress of common law has been in the same which parties shall assert, enjoy or exercise their direction, in accordance with the advance of popu
lar intelligence by which it has been moulded. The Johns. Ch. 254–261. In Schermerhorn v. Vanderheyobligations, the liabilities, and the privileges in- den, 1 Johns. 139, it was held that a parol promise herently consequent upon the marriage upon the froin one person to another, for the benefit of a marriage union remain unchanged. The contract, third person, will enable that third person to mainstipulatory or consensual, still is, 'for better, for tain an action on such promise. This rule was esworse, for richer, for poorer, in sickness and in tablished under the common law, and has been adhealth, to love and to cherish.' And although hered to by the courts of that State. In Cooper v. 'they two are no longer one, and he that one,' in Foss, 15 Neb. 516, it was held that the purchaser respect to property, they still have interests, direct of mortgaged premises, who as the whole or part and indirect, in each other's estates, and these in- consideration for such purchase agrees to pay off terests, like those of partners and tenants in com- the mortgage, may be sued, upon default of such mon, are sufficient to prohibit such an adverse re- payment, by the holder of the mortgage. See also sort to a tax title by either, as in the fair under- Stewart v. Snelling, 15 Neb. 502; Merriman v. Moore, standing of both would be a breach of marital 90 Penn. St. 80; Carman v. Kelly, 5 Hun, 283. In faith. But apart from mutual interests of property, | Merriman v. Moore, it is said: “It is a rudimental which are of but secondary importance, such a principle that a party may sue on a promise made breach of faith is a legally impossible destruction on a sufficient consideration for his use and benefit, of that relation of trust established by the mar- though he made it to another, and not to himself.' riage, and which society has even more interest in Hoff"s Appeal, 24 Penn. St. 200; Townsend v. Long, preserving than the parties themselves. While un- 77 id. 143; Justice v. Tallman, 86 id. 147. In Putjust disabilities of the wife have been removed, ney v. Farnham, 27 Wis. 187, it was held that in there are implied stipulations of the contract which case of simple contract, where one makes a promise each party remains justly disabled to violate.” to another for the benefit of a third person, such
third person may maintain an action upon the
promise, though the consideration does not move In Shamp v. Meyer, Nebraska Supreme Court,
from him. This, we think, is a correct statement October 7, 1886, it was held that wliere one makes
of the law, and it is decisive of the case, as the pea promise to another for the benefit of a third person, such third person can maintain an action upon
tition clearly shows a promise of the defendant
made to another for the benefit of the plaintiff." the promise though the consideration does not move directly from him. Maxwell, C. J., said: “If the allegations of the petition are true, Meyer assumed the payment of the obligations of the firm of
EQUITY OF PARTNERSHIP CREDITORS.
II. Nohring & Meyer, one of which was the payment of the debts which the plaintiff afterward was com
VIE case of lenagh v. IV hitwell, 52 N. Y. 146, will now pelled to pay. Can he maintain an action against T"
be considered. In this case five persons were Meyer on this contract to which he was not a party, partners. Two sold their interests to one of the other but which contains a provision for his benefit? This three and retired from the firm. Subsequently two of question was before the Supreme Court of Nevada the remaining three mortgaged their respective interin Miliani v. Tognini, 7 Pac. Rep. 279, and it was
ests to secure individual debts, and the third sold his held that a party may maintain an action on a sim
interest to a stranger. A judgment having been re
corered against the five partners on an old firm debt, ple contract to which he was not a party, upon the defendant, under an execution thereon, took poswhich he was not consulted, and to which he did
session of the old firin assets, and the action was not assent, when it contains a provision for his brought against him for conversion. benefit. In Laurence v. Fox, 20 N. Y. 268, one
Plaintiff claimed a four-fifths interest in the propHolly, in November, 1857, at the request of the de
erty under the chattel mortgages executed, as al. fendant, loaned and advanced to him $300, stating of the two partners executing one of the mort
ready mentioned, to secure individual debts, one at the time that he owed that sum to the plaintill gages having a one-fifth interest in the tirm propfor money borrowed of him, and had agreed to pay erty, and the other having purchased, in addition to it to him next day; that the defendant, on consid- his one-fifth, the two-fifths of the two retiring parteration therefor, at the time of receiving the money,
ners. The court held that the plaintiff took title sub
ject to old firm debts, and that therefore the property promised to pay it to the plaintiff on the next day.
in the possession of the sheriff was subject to levy for The court held that the plaintiff could maintain an such debts. Two opinions were written, one by Judge action on the promise. Farley v. Cleveland, 4 Cow. Rapallo and the other by Judge Allen. The former 432; S. C., 9 id. 639; Laurence v. Fox, 20 N. Y. devotes bis attention chiefly to the discussion of the 268. This principle has been frequently applied in
effect of the acts of the three remaining partners,
while the latter deals with the transfer of the two recases of mortgage foreclosure, where it is held that
tiring partners. Judge Rapallo sars, at page 154: the undertaking of the grantee of the mortgaged “But the point upon which the judgment was suspremises to pay off the incumbrance is a collateral tained in the Supreme Court, was that after the exesecurity obtained by the mortgagor which inures, cution of the mortgages. H. E. Goodwin, the only reby an equitable subrogation, to the benefit of the
maining partner, made a separate transfer to a third mortgagee. King v. Whitely, 10 Paige, 465; Italsey erties, and on this ground it was held that when the
party of his individual interest in the partyership propv. Reed, 9 id. 446; Cumberland v. Codrington, 3 execution was levied none of the defendants in the
execution had any leriable interest in the property changed from interest in the surplus to shares in the levied upon; and it was further held that the plaintiff corpus of the property free from the debts, their value who had purcbased the interest of S. G. Pubert under is doubled, and the fund which should have gone to his mortgage was entitled by virtue of two mortgages pay the joint debts is, without any cousideration, apand at the purchase at the sale under them to recover propriated by the transferees of the individual interthe value of four-fifths of the corpus of the partner-ests of the partners.” ship property levied upon by the defendants without This whole opinion should be carefully read. That regard to the partnership debts. This position is not this decision is correct cannot be doubted. But it is without authority in its support.” (Neither authority submitted that the court did not found its decision nor principle sustains it.) “It is founded upon the upon the great substratum principle which underlies theory that separate transfers of the individual inter- this department of jurisprudence. The lien of partests of all the partners divested the title of the firm ; nership creditors in this case was not extinguished, that firm creditors have no lien upon the partnership because the three remaining partners still retained an effects, and no direct right to compel their application to interest in the payment of firm creditors out of the firm debts in preference to individual debts; that the old firm assets, after the transfer of the two partners right to compel this application is an equity vested to one of the remaining three, and after the mortgagin the partners themselves, and exists only as between ing and sale by these three partners of their respecteach other; that so long as this equity exists in any of ive interests in the firm property to different parties. the partners, the creditors have an equity to compel Each one of these three partners had an interest in the its enforcement between the partners, and may by this payment of all firm debts out of firm property in prefmeans obtain the application of the partnership prop- erence to the individual debts of each of the other two; erties to their demands in preference to the individual and when they severally mortgaged and sold their redebts or separate dispositions of any of the partners. spective interests in the firm property they were still In other words, that the equities of the creditors can interested in the firm creditors' priority of payment only be worked out through the equities of the part- out of the partnership property, because none of the ners.' From these premises the conclusions have been persons to whom they severally mortgaged and sold drawn that if such equities are waived or released by assumed or was in any manner liable for the old firin the partners themselves, the creditors lose them, and debts. If such debts were not paid out of the firm that a transfer of the individual interest of a partner property so mortgaged and sold by the parties severin the firm property to a third person extinguishes the ally, then the whole weight of them would fall on the equity of the partner, and consequently that of the partners themselves. Thus their interest in the paycreditors which is dependent on it. This doctrine has ment of firm debts out of the firm property, notwithbeen carried to the extent of holding that if the indi- standing their several pledges and transfers thereof, is vidual interests of each of the members of a firm are manifest. The partners then having this deep intersuccessively sold under executions against such mem- est in the satisfaction of the old firm claims out of bers respectively for their individual debts, the pur- firm property an interest that was apparent to them at chasers acquire the corpus of the property free from the time of the different transfers, and they having the copartnership debts, and the equities of the part- done nothing to divest themselves of their equity, and ners and partnership creditors are extinguished. not having shown an intention to destroy their equitCoover's Appeal, 29 Penn. St. 9. The injustice, and it able lien, it must be regarded as still subeisting. In may be said the absurdities, which result from such a fact so far as the mortgages and the transfer that were view, lead to an inquiry into its correctness. A firm severally made by the then partners were concerned, may be perfectly solvent, though the members are in- the court recognized the force of this position, that dividually insolvent; yet in such a case the doctrine the equity of the partners survived their relinquish. that the property of the firm is divested, and the equi- ment of their title to the firm property, the court sayties of the partners and partnership creditors are ex- ing: “But it is claimed that when all the partners tinguished by separate transfers of the individual in- have assigned, their interest in the property is divested terests of all the partners, might result not only in and their equity is destroyed, and therefore the propan appropriation of all the properties of the firm erty is released from the debts, and what was at the to the payment of the individual debts to time of the assignment a share of a contingent surplus the entire exclusion of the firm creditors, but has been converted into a share of the corpus of the to
a most unjustifiable sacrifice and waste of property. Is this position sound? When a partner such properties. For instance, suppose a firm to con- sells his interest in a firm to a person other than his sist of three members, each having an equal interest, copartner, or it is sold on execution against him, does and to be possessed of assets to the amount of $300,000, he thereby lose all equity to have the firm debts paid and to owe debts to half of that amount, the interest out of the assets? When he sells to his copartner, he of each partner, supposing their accounts between relies upon his assumption of the partnership debts, themselves to be even, is $50,000. The members of and unless he stipulates for an application of the asthe firm are individually indebted. One of them sells sets to that purpose he parts with all lien upon them. his share, and receives for it $50,000, which is its actual But when he sells to a stranger mot liable for the debts, value; the share of another of the parties is sold out or his interest is sold on execution, is not the right to under execution and brings its full value, $50,000. have the debts paid out of the property, a right of inThus far one partner remains, and he has an equity to demnity personal to himself, and which does not pass have the firm debts paid, and those who have by the sale ? Could it be tolerated that the interest sold out are protected against those debts. The of a partner should be sold under execution against purchasers of the separate interests are entitled to the him, on which sale only the value of his interest in surplus only. The joint creditors still have their re- the surplus could be realized and that the purchaser course against partnership property, and the right to should be allowed to take the corpus of the property, levy on such of it as is subject to sale on execution. and leaves him liable furthe debts?" But before any levy the remaining partner sells out In this case, Judge Allen, discussing the effect on the his individual interest, or it is sold out on execution. old firm creditors, of the transfer of the two retiring According to the doctrine applied in the present case, partners of their two-fifths interest in the firm prorand maintained in the case of Coover's Appeal, supra, erty to one of the then remaining partners, expresses the firm property is by this last sale relieved from the an opinion that creditors of the new firm composed of partnership debts; the two shares first sold dre at once the three remaining partners, had there been any, would have been entitled to preference over creditors ship debts out of firm property, because the trausferees of the old firm as to the old firm property which might were not liable for such debts, and did not assume be uudisposed of. He says: “Had the firm, after the them. If the transferee could dispose of this property change of interest therein, incurred liabilities and con- without paying two-thirds of the firm debts out of it, traoted debts, a question would have arisen betweeu the burden of payment would fall on them. As the the creditors of the old and new firms, and the cred- equity of these two partners still existed after the itors of the new would have been preferred.”
transfer, so did the equity of the firm creditors, and if This is undoubtedly the law where the retiring part- it be argued, as the court did argue, that an unincumuer sells out to all the remaining partners jointly, and bered two-thirds of all the firm property passed by not separately to one. Smith v. Howard, 20 How. these transfers, then the conclusive answer is, that the (U. S.) 121; Baker's Appeal, 21 Penn. St. 76. In both firm being insolvent, the transfers of its property to of these cases the retiring partner transferred his in- pay individual debts of members of the firm were terest to the two remaining partners, and the courts fraudulent and void. On this point the court said: sustained assignments made by the new firms of the “The bill, it is true, charges that the several transfers old firm property, in which creditors of the new firms of the partners were illegal and fraudulent without were preferred. But in Menagh v. Whitwell the retir-specifying wherein the fraud consisted. The charge ing partners sold their interest, not to all three of the seems to be only a legal conclusion from the fact that other partners, but to only one of them. This differ- some of the transfers were made for the payment of ence in the facts between this and the other cases does the private debts of the assignors. Conceding such to not however call for the ap lication of any different have been the case, it was a fraud upon the other partprinciple.
ners, if a fraud at all, rather than upon the joint credIn Menagh v. Whitwell the creditors of the new firm itors; a fraud which those partners could waire, and would have been prevented, although the transfer was which was subsequently waired by the act of futo one, and not to all, of the continuing partners, be- sion." cause all the five partners had lost their interest in the The court is at first uncertain whether it is a fraud at payment of old firm debts with old firm property, the all for a partner to pay his individual debt with proptwo who retired losing their interest by a sale to those erty of an insolvent firm, and finally declares the who were personally bound to pay such debts, and fraud, if any, to be a fraud upon the other partners bound to save those two harmless from such debts and merely. No principle would seem at first thought to the other three, because being after the transfer, the be better settled than the one which sets the seal of its real debtors as between themselves and all others, condemnation on every such transfer and declares it and being bound in conscience as well as by the Jaw, fraudulent and void as to the firm creditors. Menagh to pay them out of any property they might have, v. Ihituell, 52 N. Y. 146, 162; Wilson v. Robertson, 21 ceased to have any interest in their payment out of id. 587; Ranson v. V'an Deventer, 41 Barb. 307; Phelps any particular fund or property. The equity of all five v. McNeely, 66 Mo. 554; Lemley v. Johnson, 43 N. H. partners being extinguished, the equity of the old firm 144. creditors would be forever gone.
And yet there are cases which hold that individual There are dicta and possibly one decision hostile to debts may be paid with firm property, although the the decision in Menagh v. Whitwell. The dicta are firm is insolvent, provided of course all the partners found in Doner v. Stauffer, 1 Pem. (P. & R.) 198; assent to the transaction, Marks v. Hill, 15 Gratt. 400; Coover's Appeal, 29 Penn. St. 9; and the cases of Schmidplapp v.Currie, Miss. Sup. Ct. (18 Am. Law Reg. McNult v. Strayhorn, 39 id. 269; Case v. Beauregard, 108), 55 Miss. 597. See also Hopgood v. Cromwell, 48 99 U.S. 119, seem to be on the same side.
Ill. 64. In the last case it appeared that May, Graham and Indeed in Schmidlapp v. Currie the court sustained a Beauregard had been partners. May and Graham transfer by one of two partners with the assent of the transferred their interest in the firm property to the other, of all the firm property to pay an individual United States, and subsequently these interests were debt of the partner making the transfer. This transfer transferred by the United States to three persons, and of course made the partnership absolutely insolvent, thereafter a railroad corporation and these three per-| leaving nothing out of which to pay firm debts, and sons and the remaining partner, Beauregard, executed yet the court sustained the transfer as against a firm an act of fusion by which all the rights of the parties creditor at the time of the transfer. This is certainly became rested in the corporation. The object of the an extreme case, and carries the doctrine that the action was, as the court said: “To follow and subject equities of firm creditors are derivatire and dependto the payment of a partnership debt property which ent to the utmost limit, and yet it is sound on princiformerly belonged to the partnership, but which, be- ple. The court intimated that its decision might have fore the bill was filed, had been transferred to the de- been different if the firm had been insolvent. But it fendants."
is ini possible to see how insolvency could make any The court, dismissing the bill, said: “The effect of difference, when the transfer to the individual credthese trausfers and the act of fusion was, very clearly, itor of all the partnership property created an absoto convert the partnership property into property held lute insolvency, leaving no firm property whatever for in severalty, or at least to terminate the equity of any firm creditors to collect their claims from. This departner to require the application thereof to the pay- cision is an important one, and it will be worth the ment of the joint debts. Hence if, as we have seen, while to step aside from the trend of this article to the equity of the partnership creditors can be worked examine it. It appears that H. and U. were partners. out only through the equity of the partners, there was H. having become indebted to 0., transferred to him no such equity of the partners, or any one of them, as in part payment of the indebtedness and with the conis now claimed, in 1869, when this bill was filed. No sent of U. the entire business and stock of the partone of the partners could then insist that the property nership. Firm creditors having sued out a writ of ata should be applied first to the satisfaction of the joint | tachment against the firm, and caused the same to be debts, for his interest in the partnership and its assets levied on the property so transferred, on the ground had ceased."
that the payment of the individual debt of H. with all This decision will not stand the test of principle. the partnership property was frandulent and void as The two partners whose interests were severally sold to firm creditors, that question was presented for the did not thereby forfeit their equity as partners. They decision of the court. The court said: "Is it true still retained an interest in the payment of partner- that partnership assets cannot by the act or consent of