The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1874-10-28

case Parker. ~, sets nrh The skOve pfineipe at
length With many authorities following the history
Of the principle il Equity aud in law.
Lovejey W. BOEcns. "a New Hsmps 4ol. On the
authority Of the above, Is New Hamp.,) the Court,
PARKER c. j. hers briefly and eOnclusively held, that
partner cannot sell norsass his individual in
terest. Gs1 nr7a al isl1i ai,ar lsn
That such mortgage, If made, cannot avail against
Partnerships Creditors. la- BE- astsl r
Wketker Creditors before subsegnent 10 the Mort
gage. HHllard on Mortgages p. !. Note. Receivers
&C.. vs.. Goodwin. Halttsads Chy. r. sS4, held
that the Mortgage could claim only what remained
Of the MOrgagOr's interest after paying Of the firm
debts. tsisis + as,s.
The case of Peirce -. Jackson Mass. 242, and
confirmed in Allen vs. Wells % Pick $50, establishes
the principle. that partnership funds to be first ap
piled to partnership debts. And il is we'll established
both in England and the United States that partners
interest in funds his share of the surplus, AFTER the
debts of the firm are paid and final balance
tanned, and that each partner has lien the funds
for his share of the surplus, well for bis in
demnity against the joint debts. Collyer Part 65
Harvey Cricket NJ. and S. 1856 Harris
Carr Summer l73. Story on Eq. Juris. Sec.
1913.
Tho undivided Fourth Share Of the Plantation was
indebted and liable for Onequarer of the Plantation
debt at the date of the mortgage say June 3d. 1873,
and continued liable for the debts of the co-Partner
ship until the sale and closing up of the coparner-
ship on the 9th of July, 1874 The MOrtgagOr being
owner of One-quarter share of the eo-partnership
property, cannot the liability of his quar-
ter share toEards the payment of the eopartnership
- =
preference to the prior partnership debts.
IN respect 10 the Real Estate belonging TO Ee Partner
ship; Each partner requires both at law and Equity,
to join in every conveyance of Partnership Real
Estate. deed by one partner conveys only his own
interest. Story Part. Sec: "a 4 Notes.
So far partners and their creditors concerned
Real Estate belonging to the partnership is treated
and governed by the same doctrines.
bid. Sec. "a.
If Real Estate acquired with partnership funds
and held Ly partners in common, may be conveyed
or charged by partner his private account to
the extent of his legal title, it is only the pur
chaser or mortgage deals bona de, and ithOut notice
of partnership. Kent. p. IS.
Hoxie VS.. Carr. ] Sumner l73. Story j. In
Court of Equity it is impossible not to treat Real
HsN1ANS "9 PANPDAJ enN
among Creditors.
Burnside vs.. Merrick. 4, Metcaff 451. Prevailing
Judicial opinion is that Real Estate purchased by
partners with partnership funds for partnership pur
poses, though at law held as tenants in common yet
Equity is considered held in trust as part of the
property applicable in first place ezci
irsly to pay partnership debts.
Leading Gases in Equity, top page 2SO.
1t is clearly settled that where Real Estate pur-
hased with partnership capital for the purpose of
partnership trade, it will in the absence of express
greement be considered as absolutely converted in
o personality. See also Deyer VS.. Clark. 1 Am.
.eading Cases, top page, 4s7.
The English Courts of Equity hold that the Real
Estate of the firm purchased for partnership use and
count and out of partnership funds is subject to
be same rules other partnership property they
i've the broadcast extension to the rule which first
pplies partnership property to partnership debts.
We submit that the law gives the Creditors of the
priority claim to the partnership effects if So
zen the Mortgage of an interest of one Of the part
ers secure private debt cannot take precedence
partnership debt, but must come out of the
us f any after settling the claims of Creditors ,
gainst the partnership. It being held that such
Orgages cannot avail against Partnership Creditors
-heter creditors before subsequsHtto the mortgage.
ee Lovejoy vs.. Bowens, Ii New Hampshire R. 4O4.
Respectfully Submitted,