Long v. Slade & Farrish , 121 Ala. 267 ( 1898 )

McCLELLAN, O. J.

— The land embraced in the mortgage from Long & Go. to Slade & Farrish was ác-quired by the former in the course of their partnership .business and with partnership assets. In equity as between Long & Go. and their creditors this land is to be considered as personal property belonging tó the partnership; it was subject to the payment of debts just as personal assets Avere, and could be applied' to partnership debts through the process of the chancery court or by the voluntary act of the partnership just as personal property could be so applied. Long & Go. acting collectively as a partnership and by and through one of the partners could have conveyed to a creditor of the firm in payment of his debt, and in like' manner, of course, one member of the firm acting for all could execute a conditional conveyance of it in the firm name to secure a debt owed by the partnership; and the conveyance in eithér case would have passed a perfectly good title in equity. The integrity and validity of such title would not in equity be affected by the fact that one of the members of the firm was a married woman, Le Grand & Hall v. Eufaula National Bank et al., 81 Ala. 123; O’Neil v. Birmingham Brewing Co., 101 Ala. 383, nor in consequence of the fact that the conveyances were executed by one member of the firm for the partnership and in the partnership name.—Hatchett v. Blanton, 72 Ala. 423; Rovelsky v. Brown & Smtih, 92 Ala. 522.

'Had the'mortgage executed to Slade & Farrish by Long, one of the partners, for- and in the name of’ Long & Co. the partnership, been duly attested, therefore, it would in equity have conveyed a good title into the mortgagees, because in equity the land was partnership asséts and'not the property of the individual partners as tenants in common, and because thé signature' of Long &' Co.'as affixed by a member of that firm was to all intents and purposes the authorized signature of the partnership. But the signature was not attested, though on the face of the instrument it appeared to be, an'd attestation can no more be dispensed with in equity than it can be at law; and of consequence if Long & Co. are not estopped to deny attestation the conveyance •would be invalid in equity as well as at law. The facts were that W. E. Long, one of the firm, 'signed the name of the'-firm to the mortgage and also- signed tlie' name of C; W. Long: to it as an attesting witness, and then filed the instrument in the office of the judge of probate for record, and'had it after being recorded sent thence to Slade & Farrish; the mortgagees, who accepted it as security for the debt Long & Co. owed them and acted upon it as such for several years to their obvious :detri-Inent except upon the assumption of the validity of the mortgage. On these facts, it is - not' seriously questioned, and cannot be, that Long himself is estopped to impeach the apparently genuine - attestation, on' the ground ■ that he gave the instrument the appearance of genuineness' and sufficiency and delivered it to Slade & Farrish;, and that, they have acted upon it according to its appearance'of Validity; but it is insisted'that the other member of the-firm who personally had ho connection’ with the instrument cannot be so estopped. The contention is without ’merit'. ’ The estoppel is not upon either member of the firm as an individual, but it is upon the partnership as such. What Long did in sign- ■ ing, attesting and delivering the mortgage was not his act alone, hilt the act of the partnership, he having the right as a membér to subscribe the partnership name and thereby bind the partnership. He also had the right to deliver the instrument as the deed of the partnership; and whatever appearance he gave'to it was'the appearance given ‘to it by the partnership. ' His act throughout Was the act of’ the partnership just as much as if each member had fully participated in it throughout, and each member is estopped by the authorized act of the one to say that it was not a partnership act or is not entitled to the faith and credit of which' the instrument on its face gives assurance. And on the authorities noted first above the fact that the other partner is a married woman is immaterial.

The present bill so far as it seeks to redeem a part of the land embraced in complainant’s mortgage .from the sale made under the prior and superior mortgage at which respondent West purchased is without equity, and the proof makes no case for equitable relief in this connection even had the bill been properly framed. The effort is to exercise the statutory right of redemption after foreclosure, and not to effectuate the equity of redemption before foreclosure. In such case there must be a tender of the sum paid at the mortgage sale with ten per cent per anmim thereon and all lawful charges and a refusal thereof, or a sufficient excuse for not making such tender must be averred ánfi proyed, as, for instance, that the purchaser resides out of the State, ancl the .necessary amount to effect redemption must be paid into court on the filing of the bill,.and the bill must further, offer to abide the decree of the court. A tender refused will no .more'justify a failure,to pay the amount of it into court than will a failure to malee tender for good reasdh :shown. ■ There must be tender and refusal, or in lieu a good excuse for not making tender, and, in either case, payment of the amount into court, on bill filed-,- and a readiness -to abide the decree; and all these ■things must-be averred and proved. The cases of Beebe v. Buxton, 99 Ala. 117 and Beatty v. Brown, 101 Ala. 695, are not at all opposed to this view, and the case of Murphree v. Summerlin, 114 Ala. 54, directly supports ■ it. In the case at bar there was a tender and a refusal ■of it alleged and proved, and the bill offers to do and - perforin whatever decree shall be-rendered and specially to pay whatever sum shall be found necessary to redeem; .but there is.no averment that the redemption ■money, is paid into court, and it was not in fact paid into court. The chancery court erred therefore in decreeing redemption, and for that its decree must be reversed. We might affirm the decree in other respects, ■perhaps, but. deem it best to remand the whole case to . the ¡court below. ■

Reversed’and remanded.