Salinas v. Bennett. , 33 S.C. 285 ( 1890 )

Before Hudson, J., Barnwell. This was an action to foreclose a mortgage purporting to have been executed by the defendants as copartners — "Bennett Bros." (W. D. Bennett and C. W. Bennett) — to the plaintiffs, to secure an agreement not under seal, which was signed in the firm-name of "Bennett Bros.," and was for advances to be made to the defendants by the plaintiffs, to be used in the copartnership business. The balance for advances seems to have been $1,875, with interest as stipulated. The land mortgaged had been conveyed to the defendants as "Bennett Bros." on May 14, 1888, and the agreement and mortgage to the plaintiffs bear date September 1, 1888. The land had been purchased for the firm, was used by the firm, and paid for by the firm. The mortgage has to it the names of both the defendants, the copartners, as well as the firm-name of "Bennett Bros.," all under seal.

The defendants answered and set up as defences: 1. The general denial. 2. That the mortgage was a sealed instrument, outside of the scope of the partnership, and was executed by one member of the firm without the authority, knowledge, or consent of the other member, who never ratified the same. 3. The defendant, C. W. Bennett, interposed the plea of infancy; that at the time of the execution of the mortgage he was under age, and had never since his majority ratified the same, c.

The cause was referred to the master, G. Duncan Bellinger, Esq., who made a very full and satisfactory report (which should appear in the report of the case), finding as follows: "1. That if C. W. Bennett had been an adult at the date of the mortgage, his conduct since would have ratified, confirmed, and adopted the act of the other partner in signing it as his own, and thus rendered it a lien on the property. II. That his remainining in the firm as partner, and sharing the profits therefrom after becoming of age, confirms the contract of partnership, and deprives him of any defence founded upon minority at the date of the execution of the mortgage." Upon exceptions to this report, the cause came on to be heard by his honor, Judge Hudson, who overruled the exceptions, confirmed the master's report, and granted the usual decree in foreclosure.

From this decree the defendants appeal to this court, assigning error as follows: "I. That his honor erred, it is respectfully submitted, in overruling the defendants' exceptions to the master's report, and decreeing foreclosure in favor of the plaintiffs. II. That his honor erred, it is respectfully submitted, in overruling each one of said exceptions. III. That his honor erred in holding that one partner can bind the firm by an instrument under seal (mortgage) without the knowledge, consent, or subsequent ratification of the other partner. IV. That his honor erred in holding that one partner can execute a mortgage binding and creating a valid lien upon the real estate of the firm without the knowledge, authority, or consent of the other partner, notwithstanding the non-consenting partner was a minor and never ratified the contract after reaching his majority. V. That his honor erred in holding that section 2023 of the General Statutes, requiring ratification of acts of infants after reaching their majority to be reduced to writing and signed by the party to be charged thereby, does not apply to contracts concerning partnership property. VI. That his honor erred upon the whole case, as shown by the evidence, in decreeing foreclosure; whereas, it is respectfully submitted, the complaint should have been dismissed."

Both the facts and the law of this case are so fully stated in the master's report, affirmed by the Circuit Judge, that we can add but little to it. Keeping in mind that the lot mortgaged was partnership property, there can be no difficulty. It is not denied that C. W. Bennett was a partner; that as such he joined in the purchase of the lot, paying for it and taking titles in the name of the firm. Afterwards, the mortgage was executed for partnership assets, of which he received his full share; and continued, being still a partner. We agree that this made the mortgage a lien upon the lot, whether C. W. Bennett, the alleged partner, actually signed it or not. "One partner may bind his copartners by deed, if authority to do so is fairly inferable from the evidence of their conduct and course of business."Stroman v. Varn, 19 S. C., 307.

If the mortgage was void because of the minority of C. W. Bennett at the time it was executed, and for lack of legal confirmation after he attained his majority, we must suppose that, for the same reason, his contract of partnership and taking title in the name of the firm was also void. And in that view the other partner, W. D. Bennett, was the sole partner and owner, and the mortgage executed by him alone was binding upon the lot as partnership assets. But we agree with the master and Circuit Judge, that the fact that C. W. Bennett remained in the firm as partner, drawing the profits therefrom after becoming of age, confirmed the contract of partnership, and subjected him to all the liabilities of the firm incurred during his minority. See Miller Co.v. Sims Ashford, 2 Hill, 479, and Ihley v. Padgett, 27 S. C., 300.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

MR. CHIEF JUSTICE SIMPSON and MR. JUSTICE McIVER concurred in the result.