J. & D. Holdeman v. Knight & White, 1 Dallam 566

JONES (William E.), Justice. —On the 20th August, 1836, Jesse and David Holdeman made their joint and several promissory note to James Knight and Walter C. White, for the sum of $5000, payable on the 1st day of January, 1838, and at the same time executed and delivered a mortgage to secure the payment of the note, upon a league of land on the Colorado River. At the spring term of the District Court for the County of Bastrop, for 1838, Knight, as surviving partner, and James A. White, as administrator of Walter C.

White, filed their petition, praying judgment against the Holdemans on the note and a foreclosure of the mortgage. The defendants made no defense in writing, but demurred ore tenus to the plaintiff’s petition, which was overruled by the court and a judgment nisi rendered against the defendants, which at a succeeding term, November, 1840, was rendered final, a decree of foreclosure made, and the mortgaged premises ordered to be sold. In March, 1841, the defendants below prayed a writ of error, which being granted, the proceedings are certified to this court for revision.

Five several grounds of error are assigned and relied on for a reversal of the judgment of the court below, which we shall consider in-the order in which they are presented. First. A misjoinder of parties plaintiff in joining Knight, the survivor, with the administrator of the deceased partner White. At common law it can not be doubted, that the surviving partner is the proper plaintiff in suits on behalf of the interests of the partnership, and that the administrator of a deceased partner could not be joined as a co-plaintiff with the survivor.

This suit was instituted before the introduction of the common law and before the Act of May, 1838, which prescribed the manner of foreclosing mortgages; and the points for our consideration must therefore be determined by the rules of the civil law, which was in force at the period of the institution of the suit. The want of civil law works is an acknowledged grievance of no small magnitude, and compels us often to make decisions upon important questions with but few of the authorities upon which the principles are settled.

The case under consideration is one of that character, and as we can not have access directly to works which treat minutely of pleadings in the courts under that system, we are compelled to resort to the Louisiana decisions as likely to approximate nearest to those of the civil law. The principles of that system of laws in relation to partnership and the consequences of a dissolution are evidently materially different from those of the common law. In Morris’s Heirs v. Ogden’s Executor, 11 M.

R., 455, it was determined that, “in an ordinary commercial partnership, dissolved by the death of a partner, his heirs have a right to participate with the surviving partners in the liquidation of the partnership affairs, till a partition takes place; and if one of the partners sues to recover a debt due the former firm, the others may be made parties for the assurance of their rights.” And in Crozier v. Hodge, 3 L. R., 358, it was determined, that a partner as such had no right to sue for or recover debts due from the firm, after the death of a copartner.

But the question now under consideration seems to have been directly decided in the case of Cutter v. Cochran, 13 L. R., 485, cited in Benjamin & Slidell’s Digest, page 480,

section 17, in which it was held that, “on the dissolution of a firm by the death of a partner, the surviving partner can not sue without joining the representatives of the deceased one.” In England, where a mortgage is made to two partners and one of them dies, the right of survivorship incident to joint tenancy does not accrue, but an estate in common is created between the survivor and the heirs of the deceased (Bigden v.

Yallier, 2 Yesey, 258); and it might therefore be doubted whether, inasmuch as the foreclosure of a mortgage is a chancery proceeding, it would not be proper in England to join the heirs of the deceased with the survivor, in seeking a decree of foreclosure. It is not however essential to our present purpose to decide such a question, as the principles of the English law have nothing to do with the point under consideration; and as the plaintiffs below admit that this was a partnership transaction, the doctrine above stated, which might otherwise apply to this case, is rendered inapplicable.

We can not perceive, from all the authorities within our reach, that at the time of the institution of this suit it was improper to join the administrator of the deceased partner as a coplaintiff with the survivor. Nor can we perceive any possible injury which can result to the defendants below by such joinder; none of their rights are in any way affected or compromitted by it. The second ground of error assigned is, that the administrator, if not improperly joined, did not make a profert of his letters of administration.

This objection not having been made in the court below, it is too late to attempt to take advantage of it now, were it even deemed a necessary averment. The third ground is, that the instrument prayed to be foreclosed is not a mortgage, and that it was executed by but one of the defendants, and that there was no proof of a partnership between them.

The instrument on its face purports to be a mortgage; and although it is not in the usual form known to the common law, of an absolute conveyance by deed, with a condition to be void upon payment of the debt for which it is pledged, yet we can not look upon it as anything else but a mortgage of a strongly marked character.

The parties appear to have been unusually circumspect in its execution in the presence of a large number of subscribing .witnesses, and they expressly “pledge, hypothecate and mortgage” the land described in it, and stipulate that on failure to pay their debt, the judge having jurisdiction of such cases may order a sale of the premises to raise the money.

The objection that it was executed by Jesse Holdeman only, and that there is no proof of partnership, is entirely obviated by the act of David Holdeman in his acknowledgment before the chief justice of Bastrop County, as notary public, that Jesse Holdeman was authorized to execute the instrument. It is urged in the fourth place that there was a misjoinder of actions in praying for judgment on the note and a foreclosure of the mortgage in the same action; and that thereby the defendants were deprived of the right of a trial by jury. This ground is equally untenable with the others.

It can not be denied that the plaintiffs had a right to proceed to judgment on the debt in a common law action, or to procure a decree in chancery for the foreclosure of the mortgage. A plaintiff may elect either remedy, or he may proceed with both concurrently. 4 Kent, 184.

Where the chancery and common, law jurisdictions are vested in separate tribunals, if he availed himself of both remedies it would necessarily have to be done in separate courts; but under our laws both jurisdictions are blended in the same tribunal, and as the plaintiff can have but one satisfaction, there can be no necessity for him to seek but one judgment, or be compeled to resort to two suits, in the event the mortgaged premises do not satisfy the debt.

We are of the opinion that it is a correct practice to proceed at the same time, and in the same action, to seek a judgment on the debt and a decree of foreclosure of the mortgage. The defendants can not complain that they were deprived of a trial by jury; they made no defense in the court below to the merits of the case and were therefore not entitled to a trial by jury; they relied both in that court and in this on technicalities, and it is too late to complain of being deprived of a trial by jury, which they never sought.

The fifth and last objection—that there is no judgment rendered in the court below upon which an execution can issue—is easily remedied by rendering such judgment here. A judgment nisi having been previously taken for the principal sum of $5000, with interest at 5 per cent per annum from January 1, 1838, and costs, and at the November term, 1840, the same having been made final, without computing the interest up to the judgment, and the same being defective, the court proceeds to render such judgment as should have been rendered below.

It is therefore ordered, adjudged and decreed by the court here, that the judgment of the court below be set aside, and that the defendants in error in this court do recover of the plaintiffs in error the principal sum of $5000 debt, and the further sum of $703.33, interest up to the 23d November, 1840, with interest on the principal sum at 5 per cent per annum from the 23d November, 1840, until paid; together with costs of suit in this behalf expended.

It is further ordered, adjudged and decreed, that the mortgage described in the petition of the plaintiff in the court below be foreclosed; and that the mortgaged premises in said mortgage described be exposed to sale in terms of the statute, and the surplus, if any there be arising from the sale, be paid to the appellants; and if there shall not be a sufficiency to satisfy this judgment, that the appellees have execution for the residue; and that this judgment be certified below for execution. Reversed and rendered.