The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-05-24
DECISIONS OF THn high COURT


DECISIONS OF TIM HIGH COURT. |
ooTOBER TERM, 1899.
IArrOarrD rzrrzss1T Ton1sr. 1aslnnz daHrosl
N. c. Cummings,
vs.. 96o4.
Jeol T. Parish.
The only point necessary TO be con
sidered in this case Is, whether the APP
pointment of the Trustee, Robert A.
Shell, who sold tho land in controversy
to the defendant IN error, by virtue Of
such appointment Eas valid eXc ution o.
the power under the deed Of trust,
authorizing him totxecute it.
The deed Of trust purports on the lace
to be executed between David & Cum
mings ofthe first part, David Bentley OF
the Second part, '.aad Bailey D. Barker
and Joel T. Parish partners under the
style and firm name or Barker and
Parish, parties Of fha third part"
The deed provides in thc event Of the
death removal 81 nesignation Of said
Bentley, the said parties Of tho thrd
part, are hereby empowered 10 appoint n
successor with fun power to carry out the
provisions Of this rust.7
This decd is si9hed as follows,
david 4 Cummings, y ).
by Nm. Cummings, his attorney
IN TACT, Las.
David Z. Bently, 4 S.
Baby D. Barker, !. ).
.IoelFr Parish. l., 5.
aThe deed is den ACKNOWLEDGED by
each Of the signeu, Bailey D. Barker and
Joel 7. Parish stgeTally. and then fol-
lows this iustrumeat Of appointment
' Whccoas. On tie Cd day Of April, l956.
David X. Cumminss, executed a d9d Of
trust 10 David E lpntley. for the security
aud indemnity d Barker & Par.ih- OF
certain liabilities therein set forth IN
which deed Of trult il Was provided thst
in the event Of tic death resiguatiin or
removal q the sid Bentley, the sand
parties OF the tird part, e Barker e
Parish, are herebf empowered TO appoint
b successor &c., Md Whereas. the said
Bentley has = moved from this Stale, So
that he cannot execu-e the same DEED Of
trust. Nov. therefore Ia accordance with
the provision in the said deed of trust.
we the undersigned. the said fln Of
Barker Parish. appoint Rober 4.
Shell. a. the suece- sor OF said Bentley.
and the said Shell is hereby clothed and
invested with al the powers and authori-
t. ~ said deed @. trust vested in tie
said Bentley.
Given under our hands and seals. bis
the Oh day OF February. A. p. 1855.
Barker Parish, J.. -
The question now arising is, whether
one primer Of the iim OF Barker 6 Par
I Ish, lad the power under this deed Of
/ trust by tue use OF the firm name to ap-
/ Ieint the new trustee, Shell or whether
/ the deed Of trust vested that authority in
/ Bailey ID. Barker and Joel r. Parish.
I = u is to be observed that there is a wide
/ distinction between the rights. duties and
/ powers or partners rs between them-elves
/ aud in reference 90 third parties unCon-
/ nected with the partnership. Their au-
thorities rights and duties ii relation to
each other. are derived from their mutual
I agency for each other in the business Of
/ the partnership, and hence in 81 matters
1 pertaining to the partnership business, IS
the authorized agent Of the finn each
/ partner has the complete JUS ds151rndi a..
the whole partnership interests, (kents.
com. Sd. vol p. 81 and may therefore
act for the firm in their common name
without the consent Of the other part
ners. Story on Agency, p. A Z. -
Story on partnership. p. /. Smiths mercen
tile law. p. q. Collyer on partnership, p
lSS. 2. 1876.
But when acting for others, and in INST
tiers not pertaining to the contracts o.
liabilities Of the ira. nor in discharge o
the ordinary duties Of their business. ~
such agency exists nor can it be presume,
without express authority. We mus
look therefore to the terms Of this de-,
to ascertain the intention Of the parties
as wen the intentions Of the grautcr. a
Of the cssVa glc t~sst, whose rights an,
interests are to be committed mutually &,
the trustee. to be appointed under thl
power conferred BY the deed. The Ian
guare Of the deed IS. "that in the even
Of the death removal or resignation o
said Bentley, tie said parties Of the thir.
part shall appoint successor. &c.
Tho body OF the deed declares tina
BAILEY D. Barker. and Joel Il Parish
partners trading under the style and firm
name Of Barker g. Parish" are the par
ties ~ the third part When we look 3
the execution Of the deed 1t is signed b.
. Baily D. Barker, aBd Joel r. Parish
severally and not as partners. and acknov
ledged by them respectively, before tn
Justice certifying its execution.
Il seems clear therefore that the powe
b of appointment conferred by this deed.
| given to Bailey D. Barker. aud Joel ]
| Parish. partners trading under the styl
: and firm nslnFof parker g Parish" ca
{ not 10 eitiFr Il. t. iiTTl ~ i.n.l.-.s
Z Of the 0iheT. - was ~ sed in these "
= parties as individuals. and ne. ia the
. partnership character. because they a
50 named and described. end the
= partnership and firm name used to ppiI
, uut, more specially the individuals =
T. frrred 10.
The donation OF the power being
% two individuals jointly and not SEVERAL
= one could not exercise it. II bein"
z matter OF special confidence ID was %
% competent iOrone to assume 70 execute
:, IA the name Of both. upon tAe ground
their general mutual agency for ea'
> other as partners. For in executing III
; power, they we're not the agents OF eac
!. other, but the agents Of Cumming. Il
gTantor in the deed Of trust, as well
creditors secured by that deed.
The appointment having been made
J, one Of two persons ia whom joint pow
v was vested. was Therefore void. az
he sale made hy the trustee Shell,
virtue OF this appointment also void
. Il follows that the complainant in Il
J. Dill did not obtain even an equity lN
e purchase at the sale made by this truste
p. and mas nothing therefore upon which
can rely for the relief he seeks.
Let the decree be reversed and bill d
y missed. HAERIs.
a In the foregoing case Mr. JUST
Handy. delivered the following dlsser
NJ opinion.
: NJ. c. Cummings,