CLAY 11. FIELD.
Was so received, or that the assignor was discharged therefrom. Payment a pre-existing dl'lbt. may be made by the note of the debtor, or that of a third person, hut according to the decided weight of authority Ii novation does not take place unless there is an express agreement ,t() accept ,tlle latter in paytllen,t and discharge of the former. Otherwise the payment is only conditional, aod the creditor may, if the note is.not, paid, surrender it; and sue on his original demand. In re Owimette,,1'$awy·. 52, and. cited; The Katie, 3 Woods, 182. .Whetber the complete satisfaction and discharge of an antecedent dept,'wltbouttbe cancellation or sutrander of any written security by tbecreditor,constitutes a vliluable consideration is aqtiestion which the courtsoHbe different states have decided differently. Dr. Pomeroy evidently thinks the question ought to be decided in the negative, and says:
or
"1'0 hold that a conveyance as security for an antecedent debt is made :without, but that one in satisfaction of SUCh. d;ebt is made with, a valuable c()l\8id· the fact of.satililfaction Is not evidenced by any act of the creditor, 'but depends on 'mere verbal testimony, is opening the door wide for the easy admission of fraud. It leaves the rights of third persons to depend on the coloring given to a past transaction by .the verbal testimony of witnesses, after ,too has ,to the ,creditor the form and nature in which if is fur his ip,tel·611t. to ,A rule so e,asy for pnrty to defeat the nghts of others is cleatly impohtlc."
The'plll8oW, bad" 'and is ',i'
disallowed. '
,
'II.
FIELD et al. '
'Cl)iIif'ict (JOfJ,rt, ·
···l
if D. Mis8issippi, w: D.
March 22, 1888.) ·. "
, 'The sl1tl'iving partn6r'in' a eottonplantation, before the late war, nollbeing by th" or the will of the deceased, pat:tner, w;as not authorized 'to continue the vartnership business, after the death of the deceased partner, longer than 'was' necessary to gather, and sell the then growingcrop.l' ," ' , " ,, ..
1,3; SlllE,.....RIGRT 01' SUBvrvon ,TO '.I'RE PBl\SO:rUL'l'Y.
,U,pon ,the death of the deceased ,pl\rtner intestate, the title to the .personal the slaves .belongiI!gto firm, vested irlthe surviving , partner; for the purpose of belDg apphed.;...;Fir,t, to the payment of, the partneahip liabilities; 8econdly. fpra of the resi\lue pflulybetween the survivlDgpartner and the. personal representative of the deceased partner, according to the rights of eltchY , ., , , ' B.um"-Lt.UHLITYOI' SURVIVOR ACCOIDlTINU.
I.'
It·was the duty of the surviving partner to sell so Jnuch of the personal Property, including the if necessary, to pay oft debts due by the firm tohilnself or any other' person, and tq 80 apply it'. Failini to do sO,and contiritting the planting the plantation, and with the slaves and other
>,lWmelltingthe rights IWd liabilities of the SUrviving par·tnership js dissolved oy the death ot one partner, see Appeal of Shipe, (Pa.) 6 Atl. Rep. lOS, and note; Klotz!. (La.) 2 South. Rep. 208; Browp. v. Watson, (Mich.) llS N. W. Rep, 493; Wllliams v. Whedon, (N. Y.) 16 N. E. Rl>p.· ',,' " .
FEDERAL REPORTER·
. :"Jlersoual1?foperty;of the finn. he is liable'to account for a re:asonable rent for for the slaves and persQnal property, after he should have sold sQ'mu'ch of the property as was necessary to pay the 'debts' against the firm, includ'ing the indebtedness to himself as a creditor of thefil'm; and was entitled to tbe crops raised during tbe time he was liable for rents and hire. l . The legai title to the. lands owned by the firm. they being et{ual partners, upon the death of the deceased partner vested in the surviving' partner and' the heir at law of the deceased partner 1/.8 tenants in comn;ton, subject to the dower right of the widow of the decll:asedpartner Ollt· of one ,moiety of the ',hi.nd; but the equitable title to said liind vested in the'survivirtgpartner, so "far as the same was necessary to paythe Jiabilitiesof the partners]iip, includ.: b1g. that due the surviving partner as a general creditor. or any balance, due .'!., him on a se.ttlement of partnership acc0!1nts. The I!urvi.vingpart?-er had , a'rlght to sell the land. If necessaty for saId pnrpose; publicly or prIvately, alld 11. court· of equity would have compelled the heir at law to convey the legal. title vested JD him to the purchaser'! (Syllabu8 by the Court.) (. S.um-TITLE. TO
P ARTNEIUlHIP
REALTY.·
111 Equity. '
'.
" . " " . ,
Nugff1l-t: &-McWillie, for. complairiant.
of
1
See foot-note on preceding' page.
CLAY 'D. FIELD.
371
there with them until after the close of the war, when he retumed with them, and employed them on the plantation during the year 1866, after which he abandoned the cultivation of the plantation,-the slaves having been emancipated, as the result of the war,-and leased out the lands for the next year. C. 1. Field died intestate the 18th day of July, 1867, when Brutus J. Clay administered upon both the estates of D. 1. Field and C. 1. Field, and took possession of the lands, and leased them out, until there was an attempted sale of them by him under the decree of the probate court of Bolivar county; and they were bid off by the complainant Pattie A. Clay,-she being the only child and heir at law of C. 1. Field;· his wife having died some time before his own death, -and who has retained possession of them ever since, except a portiollof the same assigned as dower to Mrs. Freeman as the widow of D. 1. Field, by decree of this court. The crop raised in the year 1860 was gathered, sold, and the proceeds applied to the payment of the debts of the firm; that raised in 1861 and 1862 was raised and gathered, but not sold,-and was bumed by the Confederate soldiers. under orders of their commanders. The mules and other personal property were destroyed, or scattered and lost. The individual property of D. 1. Field was sold and applied to the payment of his individual debts, and the support of his wife and child; also they received some support from the partnership assets. C. 1. Field being a man of wealth, furnished from time to time money to the firm asita creditor, which appears from the written notes or acknowl,edgments executed by D. 1. Field in the name of D. 1. Field & Co.,the firm name under which the firm business was conducted,-and which are in the words and figures as follows·: "On or before the 1st day of January. 1858, the concern of David 1. Field ,&Co. will be owing C.l. Field the sum of seven thollsand three hundred and eighty-seven dollars and thirty-one cents, ($7,387.31.) for money advanced the concern., for payment of the. Leach land. and cash $dvanced for the purebase of negroes in Kentucky, in the summer of 1856, to bear six per cent. interest from maturity to when due. This 23d day of December, 1856. D. I. FIELD & Co. [Seal.]" , "The concern of David I. Field & Co. iil owingto C. 1. Field the sum of five 'thousand six ·hundred and Bixty..six and two-third dollat's, ($5,6661,) it being that amount advanced· by him of payment Lo Kirk balance on concern note, 'due hill). 1st day of January last. He is to be paid six per 'cent. for said ,amount from dllte until paid. This 20th March, 1857. DAVID 1. FI.lj:LD & -Co." . '. . "Due C. I ..Field or order, the sum of eleven hundred dollars, ($1,100,) it 'being money' day advanced bypaying to William Kirk, through his draft ·on Hewitt Norton & Co., of New Orleans. This 5th day of June. 1858. D. l. FIELD & Co. " "Due C. 1. Field or order, one thousand three hundred and eighty-nine dollars and twenty-one one-hundredth dollars, ($1.289,29.) for value received On ,settlement t,o. this date, June 13,1859. D. I. FIELD & Co." ,. C. I. Field, after the death of D. 1. Field, probated the one-half of . the amounts stated in these written obligations against the estate of D. I. Field, but died without taking further steps to enforce payment of the but after 001. Brutus J. Clay became the administrator, he took
steps to ·havethe' estate' of rD. '.:11;' Bield declared insolvent by the probate court.o.fBolivar cOunty, and ,obta,ined a decree ofthat court for a of theinteJ!est which said L Field, had in these lauds at the time of his death for the payment of the amount claimed to be due upon these obligations :from the estate oiD. I. Field, being the one-half due upon the fourobligatious, with interest.· The land was offered for sale to the highestbidder,-.,.that is, the'one-half undivided, interest,-when the same was struck off toM:rs: Pattie Clay, the complainant, who, as before stated, went into possession'of the same, which she still holds, cept that, portion assigned to Mrs. Lucy Freeman as her dower in said lands. ,This sale has been held void; The purpose of this bill is to subject the interest which D, I. Field had in these lands to the payment ofthe'one-half of the amount of these written obligations, with inless of whatevElrmay have been received from the rents and profits thereof since the'death of said D. 1. Field"after payment for taxes, improvements, and other charges against said lands. These written obligations'are not copied from the originals, which it is alleged were from copiea'shown to have been taken from them befoJ:e thbir;de!ltruction. The defendants claim, ;firSt, that the due-bill dated June'IS, 1859, was taken froIn the balance then due on the three former and to close all accountS and indebtedness then due from the firm to said C. 1. Field Uldo,that date. ltwasevidentlygiven to close some$ettlement,butwhatawas 'included in it is uncertain, both parties being .ow dead, and,there being no one to explain the transac.tion'. The pIlOof does notshow'su:fficient means belonging to the firm to payoff this indebtedness and the other liabilities ,of the firm shown to J1aye exister,ljt1;le;refore I it<iid not them. is oilier proof going; to show an indebtedness from ,tb,e firm to C. I.li'ield after the death'ofD. L Field. , '; It is insiaWd'uponfhe part of the' defendants, that if these obligations death of D,.,I. Field, that were canceled by the negligenceot C. 1. Field as partnertbsell so much of the ,p,ersonal,prop,e.ID'; i l1 cluding" the slaves" to payoff this in. debtedness which it is insisted should have been done during the 1,860, when sU<lh property brought a high price, and before its destruction; thut this personal property lVas then of much largervalue than the Il:niount'due'obthese obiigations,llnd all other indebtedness of the firm: p.m the proof that t111s indebtedness did exist against the fiJ:D;1, J?utnot, D. 1. Field, ;inqjvidually, and that all the attempted proceeding tocol,lect the same against the estate of D. 1. Field by ,a sale of the lands was based upon a mistaken theory, and without authority; void: Upon the death of C.1. Field the title to 'ill the personal, property, the slaves, belOl;tging the vested in C. 1. Field, as surviving partner, whose dtity it ",as to have 'soldsomuch'of!it, within a reasOIiable time, to pay off this and all other indebtedness ,a:gainst the fum. This he had the power to do, without the order or decree of any court, either publicly or privately, and if that was insufficient niight have sold 80 much of the land as was necessary
CLAY t1. POIE..D.
:379
in the Ba1llElway. The:iegaltitle to the )ands#as insa.id :0. ',i. Field and the defendant D.L Field, to be sure;botthe equitable title was vested in C. 1. Field, for the purp6se of paying othhe due himself, as well as all others, including any balance due him on settlement of the partnership accounts, and a court of equity would have compelled D. 1. I!leld, the defendant, to convey the legal title to the purchaser. This question was fully settled in the case of Shanks v. Klein, 104 II. S.18,and'referenceto other authorities is unnecessary on this point. The question is, did C. 1. Field, by this neglect, render himself liable for the loss of this personal property, an.d the value of the slaves, as to the interest of defendants therein: or estop himself from settingup the ,claim here made,. ,Considering the relatii>nship of the patties, and aU the circumstances, it would perhaps be inequitable to hold so strict a rule; but 1 amsatisfiedthat he had no power to continue the opei'atidnofthe plantation with the firm slaveS, mules, and other property belonging to the firm, .as .a continuation of the firm business" during. the ,years 1861, 1862, and 1863, and that hewl1s liable for a rea,;. aonable, fent fot the l,aridand hire' of the slaves, stock, .and 9ther property used in the cultivation of the p4l.ntation during the years 1861 and 1862, to be applied to the payment of these obligations,-no other indebtedness is shown now to exist,-aud that, as C. 1. Field and his administrator, ;BrutusJ. Clay, aIld,the complainant, since her IJ,ttemptecl purchase, has been in the possession of all the lands, with the exception of Mrs. Freeman's dower, since its assignment, the complainant must be charged with,a reasonable rent for the lands and the hire of theslav:es, mules, and other propertyused,in making the crops of 1861 and 1862, and for a reasonable rent 'of the lands since the 1st of January, 1866, omitting the years 1863, 1864, and 1865; that such rents, and those for 1861 and 1862, be credited lipon the amount due upon the obligations given to said C. 1. Field, with interest up to the 1st of January, 1863, and that the renb'! accruing commencing with the 1st of January, 1866, with interes't for 1866, on the 1st day of January, 1867, and so on from yearto year'up'to the presenttime. The rents and hire to be estimated at what would be a fair and reasonable rent, 9r hire to a solvent tenant for cash, taking the plantation and property as a whole, and crediting . the complainant, with the amounts paid for taxes and for such improvements as were necessary to rent the lands at a reasonable price; also for the: value of such improvements as may have added to the permanent value of thelancls,-not what they cost, but the value that they penilanently may have added to the lands. . It is infiisted that the complainant should be considered asa mortgagee in possession, and only ch!frgeablewith the rents actuaHy received. lam of opinion that as C. 1. Field neglected to sell the personal property when he should have done so,' and by which neglect it was wholly lost to the defendants, thatcoII1plaiqant is not entitled to be considered ,as B mortgagee in possession, alta only liable for the, rent cause must' be referred to a master to take and'state an account under the rules stated, and report the same to the nextterIil of court. .'AsC.
·3,80 'Ya.s
FEBERAL RE}PORTER.
chargeable with; and hire for 18.61 and .1862, he ,to th.e crops,for yeaJ;sj and, being thes.ole owner, the loss as. a matler .of course was h!a alone. ,
TOMLINSON
& WEBSTER
MANUF'G
Co. v.
SHATTO.
(Oircuit
D. Minnesota.
April 2,1888.)
1.
:,A:judgment creditor is entitled on the return of an execution unsatisfied to ,anI order for the examination of the debtor, and to an order forbidding any tra.nS.f.e.rOfhis property.;...an.d when such orders hay been issued and.served' ...e the judgment creditor a lien on the debtor's equitable assets disclosed, , and can obtain the 'appointment of a receiver, the' proceedings supplementary .to exeoutionbeing li'ght of a creditor's bill. SAME--E:fFEC'l' OF ASSIGNMENT :QY ;DEBTOR FOR BENEFIT OF CREDITORS.
PROCEEDINGS-ApPOINTMENT OF RECEIVER.
2.
8.
The, that a voluntary.a8signmen,t of his has, been made bya judgment debtor to an. assIgnee of hIS own chOOSIng. subsequently to proceedings'liupplemeptary to execution taltel). against him by a judgmentcreditor, is no bar to the appointment ot a receiver.
SAME-CoMPELLING CONVEYANOE OF REAl, ESTATE TO· REOEIVER.
4.
When, on examination of a judgment debtor in proceedings supplementary to execution, it appears that he 'is entitled 'to real estate subject to mortgages, it is competent for the court to compel him to convey to the receiver appointed at instance of the judgment creditor. lIIAY BE COlllMENCED. 60 days within which to make a return to an execution; yet when execution is returned unsatisfied, a judgmentoreditor may take supplementar'y'; propeedings without waiting for the. expiration of the said 60 days.
'In Equity..Motion for.the' of a receiver. " Tomlinson & Webster Manufacturing Company,plaintiff The c,reditor, apply by motion for the appointrnent of a reand ceiver after, disclosures up,on, of Cliarles W. Shatto, defendant and jup.gWimt debtor, inprocaedings supplementary to execution. , " .. George d.RipWy, for plaintiff. . , . Charles H. Woods and Jilred W. Reed, for defendant., ,NElSON, J. A motion 'is, made for a receiver, after disclosure, upon an exarnipati()u in proceedings supplementary to execution, in accordance with the state law and practice. The appointment of a receiver is opposed for the reason that after thE}' proceedings had, been instituted, and an-order served upon the judgment forbidding any disposal. of his property or interference therewith, he made voluntary i.o an assignee of pis own selection under the of the, state QfMinnesota, enaoted in 1881. I have the arguments of counsel and duly considered the 1.. That the return of the,exeQution unsatisfied entitled the plaintiff to the order for the. examinatipn of the judgment debtor, and the erde!"