Lancaster Bank v. Myley

Real estate maybe held inparlnership, provided such intention be manifested by' ■writing put on record. This intention is sufficiently manifested in the case of a sheriff’s deed to the firm, by the record of it in the prothonotary’s office. The office of the habendum in a.deed is not to designate the grantee, but to determine the amount or quantity of the estate or interest granted by the deed; and therefore, where a deed is to persons as partners, habendum to them, their heirs and assigns forever, these words in the habendum merely determine the quantity of interest conveyed to the firm, whether an estate in fee, or during- the continuance of the partnership, or for life. When real estate, purchased by the partners, paid for with partnership funds, and conveyed to them as partners, and the deed duly put on record, is sold under a mortgage executed by them, as partners,'under the firm name, which has been duly recorded, the proceeds of such sale are payable under the mortgage, to the exclusion of a previous judgment obtained against one of the partners.

Appeal from the decree of the Common Pleas of Lancaster county, distributing money arising from the sale of the real estate of Holmes, Myers & Co. Augustus Holmes, James Myers and John Strimpler, trading as partners, under the name' and firm of Holmes, Myers & Co. On the 12th day of October, 1842, purchased at public sale from A. E. Roberts, Esq., late sheriff of Lancaster county, a certain piece of ground in the Borough of Columbia, Lancaster county, containing about 4 acres, with a new furnace, stack, &c. thereon erected, and for which they paid the sum of $425. Eor this piece of ground, John Ehler, Esq., the successor'df. A! E. Robers, Esq. on the 12th day of December, 1842, executed a deed to the purchasers, wherein among other things it is thus set forth: “ And whereas the said A. E. Roberts, the sheriff aforesaid, having-given due, public and legal .notice of the time and place of sale of the said piece of ground, containing about 4 acres, with the improvements, did on Wednesday .the 12th day of October, expose the same to sale by public vendue or outcry, and sold the same to Augustus Holmes, James Myers and John Strimpler, trading under the firm of Holmes, Myers & Co.” &c. and that “in consideration of the purchase money being paid by .the- said Holmes, Myers & Co. he doth grant and sell unto the said Augustus Holmes, James Myers and John Strimpler & Co. their heirs and assigns, the said piece of ground” &c. There is' annexed to this deed, a receipt given to the said Holmes, Myers & Co. for the consideration money. The deed was ■ duly acknowledged in the District Court for the city -and county of Lancaster, on the 12th day of December, 1842, and entered upon the records of said court, in Record Book of Sheriff’s Deeds, No. 1. p. 304. On the 1st day of April, 1846, by an indenture executed between Thkddeus Stevens, Esq;, and John Strimpler, Augustus Holmes and James Myers, trading under the firm of Holmes, Myers & Co., the said Thaddeus Stevens, for and in consideration of the sum of four hundred and fifty-five dollars hereinafter charged upon the premises; and of the sum of eighteen hundred and fifty dollars to him in hand paid by the said Holmes, Myers & Co. at and before, &c. conveyed, for the consideration therein mentioned, the property therein described, (being the same property conveyed by the. sheriff,) and also included in the mortgage hereafter mentioned, to the said John Strimpler, Augustus, Holmes and James Myers, and to their heirs and assigns. These said premises were used by the partners aforesaid for the purpose of carrying on and conducting the partnership business of the said firm, as furnace men, until they were sold by the sheriff of Lancaster county, by virtue of an alias levari facias issued out of the Court of Common Pleas, No. 21, August term, 1849, on a judgment obtained on a scire facias sur mortgage, as hereinafter shewn. On the 28th day of July, 1847, Henry Myley obtained a judgment against John Strimpler, one of the said partners, in the District- Court for the city and county of Lancaster, No. 98, June term, 1847, for the sum of $2282 09. On the 17th day of July, 1848, Augustus Holmes, James Myers and John Strimpler, as partners under the firm of Holmes, Myers & Co., mortgaged the same premises mentioned in both deeds, to ■“ The Lancaster Bank,” Ann C.' Bayard, -and others, for the payment of divers sums of money mentioned in said mortgage. This mortgage was duly recorded on the 17th of July, 1848, in Mortgage Book, No. 11, at page 166. A scire facias was issued upon this mortgage on the 23d day of March, 1849, out of the Court of Common Pleas, No. 102, April term, 1849, and a judgment obtained thereon. An alias levari facias was afterwards issued, and the premises sold by the sheriff of Lancaster county, as the property of Augustus Holmes, James Myers and John Strimpler,, partners, trading under the firm of Holmes, Myers & Co. The proceeds of the sale of said real estate were paid into court for distribution, and auditors were appointed to -make, such distribution. After due notice- of the time and place of meeting, the parties interested appeared before them, when the executors of Henry Myley, deceased, claimed the one-third of the amount for distribution under his judgment against John Strimpler, No. 98, June term, 1847: Debt $2282 09. But the auditors made distribution among the partnership creditors, under' the mortgage to the Lancaster Bank and others. Their report was filed in the Court of Common Pleas, and was afterwards excepted to by the counsel for the executors of H. Myley, deceased, upon the ground that the auditors erred in awarding the funds to the partnership creditors; and in not awarding one-third of the nett balance for distribution to the said executors of Henry Myley, deceased, under the judgment against John Strimpler. These exceptions were argued in the Court of Common Pleas, and on the 18th of March, 1850, the court, after reviewing the facts — the evidence and the report of the auditors— and after referring to the decisions which it was thought governed the case then before them, were of opinion, that the said Augustus Holmes, James Myers and John Strimpler held the said premises' as tenants in common, and not as partners at the time of the sale by the sheriff. It was therefore ordered by the court, “that the one-third of the money for distribution, to wit: the sum of $1017 22 be applied in satisfaction pro tanto of the judgment of Henry Myley vs. John Strimpler, No. 98, June term, 1847; and that the residue of the money for distribution, to wit: $2034 44 be distributed pro rata among the several creditors named in the mortgage of the 17th July, 1848, to “The Lancaster Bank” et al above stated.” From this decree of the said Court of Common Pleas of Lancaster county, an appeal was taken. The deed from John Ehler, sheriff, inter alia, and after various recitals, contains as follows: Now know ye, that the said John Ehler, Esq., High Sheriff as aforesaid,- in pursuance of the said order and direction of the court aforesaid, and also for and in consideration of the aforesaid sum of four hundred and twenty-five dollars, lawful money as aforesaid, to the said A. E. Roberts, late sheriff, in hand paid by the said Holmes, Myers & Co. (the receipt and payment whereof is hereby confessed and acknowledged by the said A. E.-Roberts,) hath granted, bargained, and sold, and by these presents, according to the directions of the said last writ, and by force and virtue thereof, doth grant, bargain and sell, unto the said Augustus Holmes, James Myers and John Strimpler, &c., their heirs and assigns, all the said above mentioned and described piece of ground with the improvements aforesaid, together &c. To have and to hold the said real estate, hereditaments and premises hereby granted, or mentioned, or intended so to be, with the appurtenances, unto the said Augustus Holmes, James Myers .and John Strimpler, &c. their heirs and assigns, to their and for their only proper use and behoof, forever; for such estate and under such rents and conditions as the said James Colvin and Robert K. Colvin, had and held the sam&at and immediately before the taking thereof in execution, &c. In witness whereof: Signed, John Ehler, Sheriff, [l. s.] Received on the twelfth day of December, Anno Domini, one thousand eight hundred and forty-two, of and from the above named Augustus Holmes, James Myers and John Strimpler, 'trading under the firm of Holmes & Co., the sum of four hundred and twenty-five dollars, lawful money of Pennsylvania, in full for the consideration money above mentioned. , . A. E. Roberts. Exceptions and errors assigned: 1. The court erred in that part of the opinion délivered, in which they say, “ The decision in Hale vs. Henry, 2 Watts 145, covers the case before us.” , 2. The court erred in that part of their opinion, in which they say: “In the case now before us, the intention to bring the real estate into partnership is not manifested by deed or writing placed on record. The grantees, therefore, held it as tenants in common, at the time of the sale.” ■ 8. The court erred in that part of the opinion in which they say, “the interest of John Strimpler was bound by the judgment recovered against him, before the mortgage was given.” 4. The court erred in making their order or decree.