Goodrich v. Leland

Partnership: Mortgage; Individual liability; Statute of Limitations. Harrison W. and Chauncey S. Gobdrich, Jr., in September, 1852, borrowed money of one Fasqiielle, and gave him a note or contract under seal for the payment of the same, and which fell due in September, 1865. The said note was secured by a mortgage of same date, executed by Goodrich, Sr. and wife, to secure the payment of the same. Goodrich, Jr., died previous to May, 1862; Harrison W. died in 1864; Goodrich, Sr., died in the life-time of Chauncey S., Jr. and devised to him the premises mortgaged, to secure the said debt. The mortgage was foreclosed, and the premises sold September 10, 1860, for $1,242 75; May 10, 1862, the administrator of said Chauncey S., Jr. redeemed the premises hy paying the amount due. Subsequently he presented his claim lor one half of the said amount against the estate of said Harrison W. for contribution, and which was allowed by the commissioners. On the trial of the appeal, the administrator of the estate’ of said Harrison W., offered to show.that said Harrison W. and Chauncey S., Jr. were partners with one Cornelius D., at the date of said note; that said money was borrowed with the knowledge and consent of the partnership, and used for partnership purposes; that said partnership was unsettled and debts due. This was refused, and a verdict rendered for the amount of the claim. Meld, that Goodrich, Sr., must be regarded as having executed the mortgage at the request of Harrison and Chauncey Goodrich, Jr., to secure their debt, of which the note was evidence. Had he been living at the time of the redemption and had paid the mortgage, he could have sued them for money paid for their benefit, and Chauncey S., Jr. being the devisee of the mortgaged premises stood in the right of the devisor, and was entitled to recover for the half of the redemption money paid by him as for so much money paid for the use of Harrison W. Goodrich or his estate. Meld further, that the action was not barred by the statute. The action arose from the time of redemption, and not from the time when the original creditor’s right of action accrued against the debtors, on the note-. Held further, that the .note being under seal, an action of debt could have been brought upon it at the time the claim was allowed. In the absence of any proof that the condition of the estate did not warrant the administrator to redeem, the court will presume that, in redeeming, he acted in the proper discharge of his duty.

Error to Washtenaw Circuit. This was an appeal by Merchant M. Goodrich, executor of H. W. Goodrich, deceased, from the decision of commissioners allowing a claim in favor of tbe administrator of C. W. Goodrich, Jr. deceased. It appeared that Harrison W. Goodrich and Chauncey S. Goodrich, Jr. September 11th, 1862, borrowed thirteen hundred dollars of John Lewis Fasquelle, for which, they gave a note or contract, under seal, for the payment of said sum and interest, by instalments; the last of which fell due September 11th, 1865. This note or contract is also executed by Ohauncey S. Goodrich, Sr. and his wife; but it is therein expressly declared that the two latter named persons sign merely-to give their assent to certain stipulations, and the release therein referred to (in reference to entry of judgment, and release of errors), and not to be liable to the payment of said .Fasquelle. This note, or contract, also refers to a mortgage of the same date, executed by said Chauncey S. Goodrich and wife, to secure the payment of the note or agreement. And they (Ohauncey S. Goodrich, Sr. and wife) execute to said Fasquelle a mortgage upon the lands of said Ohauncey S. Sr. to secure the same note or contract. Chauncey S. Goodrich, Jr., one of the real makers of the note or contract died sometime previous to May, 1862, (the exact date the case does not show.) Harrison W. Goodrich, the other real maker of the note (and with Chauncey S. Jr. personally liable for its payment,) died September 10, 1864. Chauncey S. Goodrich, Sr. the mortgagor, died in the lifetime of Chauncey S. Jr. and devised to the latter the mortgaged premises, which was then subject to a part of the debt secured by it. The mortgage, by assignment, came to the hands of Sarah H. Goodrich, who foreclosed it, and sold the mortgaged premises, September 10, 1860, for $1,242 75. On the 10th day of May, 1862, the administrator of Ohauncey S. Goodrich, Jr., (the devisee of the mortgaged premises) redeemed the mortgaged premises by paying the account due, to the assignee. And for one-half of the sum thus paid the administrator presented his claim against the estate of Harrison W. Goodrich, (who, with him was one of the persons originally and personally liable for the amounts) for contribution, and this claim was allowed by the commissioners to the amount of $736 63. On the trial at the circuit, on appeal from this allowance by the commissioners, the administrator of Harrison W. Goodrich, deceased, offered to show that the deceased and Chauncey S. Goodrich, the real parties to the note or contract, were, at its date, co-partners in trade with one Cornelius D. Goodrich; that the money obtained on the note or contract was borrowed with the full knowledge and consent of all the partners, and was used in the partnership business; that the partnership business was yet unsettled, and that there were outstanding debts against the firm not yet paid. This offer was rejected by the court. He then requested the court to charge the jury: 1st. That the appellee (the claimant) could not recover upon the facts in evidence, and the law applicable thereto. 3d. That the payment made in discharge of the mortgage read in evidence, collateral to the note on which contribution is claimed, is not such payment as entitles the appellee to contribution on the notes. 3d. That the claim is barred by the" Statute of Limitations, if the jury believe that the payments (admitted by the claimant to be endorsed upon the mortgage, but not otherwise proved) were endorsed on the mortgage only. 4th. That the voluntary payment by Leland, the administrator of the estate of Chauncey S. Goodrich, deceased (one of the original debtors), there being no legal obligation upon said Leland or the estate he represented to pay said note, is not such payment as would entitle him or the estate to the contribution _claimed. All which requests were refused. The jury found a verdict for the claimant for $894 15, upon which judgment was rendered in the Circuit Court, and the case is removed to this court by the administrators of the estate of Harrison W. Goodrich, by bill of exceptions and writ of error. 1. It was error in the court to exclude the following offered testimony. a. That Harrison "W. Goodrich and Chauncey S. Goodrich, Jr., two of the makers and the only real makers of the note, were at the date of the note, co-.partners in trade with one Cornelius D. Goodrich — that the money obtained by and on this note, was borrowed with full knowledge and consent of all the partners, and was used in the partnership business. b. That the business of such co-partnership was yet unsettled — at the date of the trial. c. That there were outstanding and unpaid debts yet due by said co-partnership. Its effect was not to contradict or vary by parol the terms of a written instrument. It admits the contract or borrowing, and only seeks to show that in the present relations of the estates of the deceased makers, it would be illegal and inequitable, (and in these and other cases Probate Courts have a species of equitable iurisdiction — People v. Wayne Cir. Judge, 11 Mich. 898) to call upon one of the maker’s estate for any of it — and in any event for only one-third of it, if such should prove to be the relative interest of the several partners and their estates. This testimony tended to show that H. C. Jr. and C. were in business together. That H. and C. Jr. borrowed money for the firm and used it for the firm, with the knowledge and consent of all, — (the giving of a note is of no consequence as between these two makers.) Two of the partners die. The partnership matters are unsettled. Its debts are due, and before the partnership affairs are closed and the outstanding debts paid, one partner’s estate calls upon the estate of another (in a suit upon this single transaction) to pay one-half and interest, of this borrowed money, that he has voluntarily paid to protect his private estate. — Fernald v. Danby, 26 Me. 470; Grafton Bank v. Kent, 4 FT. H. 221; 21 Pick. 196; 10 Shop. 166; Tucker v. Peasely, 86 N. H. 2. The court should have charged the jury that the appellee cannot recover upon the law and the facts. The bill of exceptions gives all the testimony. a. There was no formal issue in the case; none ordered by the court and none made; no declaration filed, and consequently no plea filed. — Comp. L. §2940. b. There were no sufficient proofs made by the claimant below. c. Contribution will not lie, between partners, no settlement having been had, etc. — 1 Pars. Cont. 84; Murray v. Bogert, 14 Johns. 818. 3. The payment was made by Leland, administrator, without authority of the Probate Court. The note was never presented or proved against the estate of C. S. Gf. Jr. (the mortgage he never made); at least there is no evidence of such proof or presentment. The note was not paid in the lifetime of O. S. Gf. Jr. There is no proof of the payment of the note at all. There was a mortgage given by other parties, collateral to the note, and this mortgaged land Leland “ redeemed * * from the sale ” by paying the amount due (after the statute had barred an action upon the note) to the assignee of the mortgage, to protect property that his intestate took by will, subject to the mortgage. Had the administrator authority, by virtue of his office, to so apply the funds of the estate? By this payment wherein has he paid the note or any part of it? — 8 Mich. 84- 4. The court was asked toeharge the jury that the claim of the appellee was barred by the statute of limitations. a. The note was due on the lltli day of September, 1855, and the statute then began to run. No payments were endorsed or proved to have been made on the note. The statute will run against this note (or contract) in six years. Also, see allowances made in the matter of estates. — Sigler v. Platt, 16 Mich. 210; Comp. L. § 5370. b. The commissioners allowed the claim appealed from, against the estafe of Harrison W. Goodrich, on the 24th day of May, 18C5. c. There Avas no proof of payment on the mortgage, other than endorsements by the assignee of the mortgage.— Comp. L. § 5377. cl. It is not necessary to plead the statute of limitations, in the matter of claims (and in this matter, with no declaration, no plea could be made,) brought against .estates — ■ the law interposes the statute to protect estates, and throws the burden of proof upon the claimant to show that his claim is not so barred, and in this case the only evidence-offered, to show the claim within the life given it by statute, Avas the written endorsement made and signed by the assignee of the mortgage, on the mortgage, presumably made by mortgagors, who were not personally liable on the note.— Comp. L. §2921/.; Mich. Ins. Co. v. Brown, 11 Mich. 273. Conceding that there is proof of the payment of the note or debt, would contribution lie, upon a voluntary payment of this note, made by C. S. G. Jr’s., administrators, after the statute of limitations had barred the claim, before allowance by probate proceedings — in a word, when there was no legal obligation upon the administrator of the estate to pay, which legal obligation' (if it had existed) rested equally upon all the makers ? — --2 Pars, on Bills and Notes, p. 253; 1 Pars, on Cont. p. S3, 31¡.. 1. The statute of limitations does not apply. A payment takes the debt out of the statute, no matter Iioav proven, whether by endorsement on a note or mortgage, or receipted without endorsement, or by sworn testimony as to the fact. — 10 N. H. 189 ; 19 Vt. 59. 2. The appellee is entitled to contribution, whether the payment was voluntary or compulsory. 3. The payment in this case was compulsory, as the land mortgaged was willed to C. S. Goodrich, Jr. and the mortgage foreclosed, and the right of redemption nearly expired. 4. The only questions for consideration in this court, arising from the Judge’s charge to the jury, were that the testimony of Achsah and M. H. Goodrich was immaterial, and the refusal of the judge to charge as requested. The maker, who paid the note, was entitled to contribution for half the principal and interest, paid with interest from date of the payment, whether the payment was compulsory or voluntary. — 7 Mass. 255; 2 Met. Jfl; 22 B. L. & Bq. 862; 19 Pide. 260; 21 Id. 195.