Ferguson v. Hanauer

19 S.W. 749, 56 Ark. 179, 1892 Ark. LEXIS 130

• Court: Supreme Court of Arkansas
• Decided: May 7, 1892
• Status: Published

Opinion

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partner.

X4- +-t-1 O TT T*\n r<4o4arI O (-1 A 4-4-1 <a/-1 o 4- 4-1-1 I c* of the firm and with its funds, and there is no agreement or design that it shall be held for their separate use, it will be treated in equity as vested in them in their firm capacity, whether the title is in all the partners as tenants in common, or in less than all. 1 Bates, Part. sec. 281 .and cases. And if a deed conveying such land be executed by one partner in the firm name in the presence of his co-partners and with their consent, it operates as an effectual conveyance of the land. 1 Bates, Part. sec. 292 ; 1 Devlin on Deeds, sec. 110; Peine v. Weber, 47 Ill. 41 ; Pike v. Bacon, 21 Me. 280 ; Wilson v. Hunter, 14 Wis. 683 ; Smith v. Kerr, 3 N. Y. 144 ; Haynes v. Seachrest, 13 Ia. 455 ; Gibson v. Warden, 14 Wall. 244 ; Holbrook v. Chamberlin, 116 Mass. 155; Sigourney v. Munn, 7 Conn. 11; Edgar v. Donnally, 2 Munf. 387. It follows that the deed of trust was valid, and that the wife of Ferguson could assert no subsequently acquired homestead right to defeat it.

% when mortgage not debt-

But it is contended that the deed of trust was extin- . guished by the release of the debts, and that, it being cancelled, the wife can assert her homestead rights under the act of 1887.

* The instrument of release does not admit of the construction contended for. It contains an express stipulation that Hanauer, individually, and the firm of Schoolfield, Hanauer & Co. should retain the benefits of all liens, mortgages or deeds of trust that they then held against the property, with the privilege of enforcing them as they might deem proper. The purpose of the parties is manifest, and their agreement must be construed accordingly. The parties plainly agreed that Hanauer and the firm of Schoolfield, Hanauer & Co. should apply the securities to the debts, and that they should not look to Ferguson or Hampson individually for any balance that might be due. Under the agreement the deed of trust was not satisfied, and Hanauer is permitted to maintain this suit.

3. Practice in iuterventions.

The objection that there was a misjoinder of parties .. . . . ana of causes of action comes without force from Mrs. Ferguson, as it relates to matters that did not concern her.

Affirm.

The act of 1887, ch. 64, p. 90, provides:

“Section 1. That no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.

“ Section 2. That * * * if the husband neglects or refuses to make such claim (of homestead), his wife may intervene and set it up.”