The Providence news. (Providence [R.I.]) 1891-1906, 1897-05-22

today The demurrer Of the defendant Is
-oRerraled.-
The bill H. one brought TO reform =
mortgage deed or personal property. The
statement is made i'm the bill that bv a
mistake of the scrivner in drafting the
decd i'm question. part of the property,
which was virtually attended 10 be In
cludcd therein, was omitted; ana also
that said mortgage purports to convey tho
entire property described therein, when
IL was only intended TO convey the mort
gagor's interest in said property and that,
i'm order Co make said mortgage deed con-
form To the actual intention of the parties
and TO truly represent the contract entered
into between them. IL IL necessary that IL
should he reformed. The bill prays that
said mortgage deed may be reformed
so as TO give effect To the intention OF the
parties thereto, and for other relief.
The respondent Coombs, demmred on
the grounds that the mortgage was
given on partnership property belonging
To the firm of Coombs * Atkinson To SO
cure the individual debts OF Atkinson
which, under the law, cannot be done,
and that it appears from the bill that
Atkinson owned only an undivided half in
terest in the machinery, goods and chattels
mentioned and described, and that by at
tempting to convey the entire property he
converted tho same TO his own use, and
hence the mortgage Is null anu void.
1.-The first and principal question raised
by the demurrer, " says Mr.. Justice Ill
linghast who wrote the opinion, sis
whether "a co-partner can give valid
mortgage on partnership property TO So
cure his individual debt. We think he
can OF course such a'mortgage II SUBJ
ject TO the prior equities of the partner
ship creditors, and also OF the other part
ners. But whatever surplust remains 10
a.. a .,.t.. xtxrt. .R~t
gage after the affairs of the firm are set
tied will belong to the mortgagee In
Randall vs.. johnson, IL X. i. $50, this
court held that the interest of n co-part-
nership property Is attachable by an In
dividual lscreditor OF such o-partnership,
and also that in case of such an attach
ment tho sheriff may seize specific
chattel and deliver il to the purchaser of
the interest attached who subject TO the
partnership debts and equities, thereby
becomes a tenant in common OF such
chattel, with the other partners.
The cases cited by the respondents
counsel In support OF the demurrer, in SO
far as they are opposed to the doctrine
above onunciated, were decided by courts
where the right TO attach partnership
property for the private debts OF an in
diyidual partner is not recognized be-
cause Of its prejudicial effect upon the
rights of the other partners; and hence.
being opposed TO the settled law of this
state, and we think also to the weight of
authority elsewhere they are not controll
ing.
The second question raised by the de-
murrer is whether, by attempting TO con-
yey tho entire property. as the mortgage
on It's face purports to do, tho mortgagor
converted the same to his own use and
thus rendered the mortgage null and void.
Atkinson at the time of the giving of
the mortgage was the owner of one-half
tho property mortgaged and the language
OF the court Is To the effect that If. as
claimed the mortgage was made on the
whole property 10y mistake on the part of
the scrivner and that the mortgagor only
intended to convey his undivided half in
tcrest In the partnership property and
that this was in accordance with the con.
tract between him and the mortgagee,
then the mortgage will not in effect be-
one con veying or attempting TO convey
property belonging TO his co-partner, but
only his individual interest therein and
hence Will not be obnoxious to the objec-
tion aforesaid.