Marks v. Sayward

By the Court, Rhodes, J.: The pleadings admit the assignment by the defendant to Fonda, and by the latter to the plaintiff, of one-half of the debt secured by the mortgage, the foreclosure of the mortgage, and the payment of the whole mortgage debt to the defendant. The defenses are that the assignments were made without consideration; that the assignment to Fonda was procured by fraud; that the assignment by Fonda to the plaintiff was made with the intent to defraud the defendant; and that at the time of the assignments, Fonda was and still is indebted to the defendant in an amount exceeding the sum collected on the mortgage. The referee made no finding in respect to the first three defenses above [60] mentioned, but he found that Fonda and defendant were partners; that the mortgage mentioned in the pleadings was a part of the assets of the partnership; that at the time of the several assignments of the mortgage Fonda was indebted to the defendant in an amount exceeding three thousand dollars, on account of money advanced by the defendant to the partnership; that at the same time the partnership was indebted to third persons in an amount exceeding the value of the partnership property, which indebtedness had since been paid by the defendant, and that the money paid by the plaintiff to Fonda was paid to him individually, and not to the partnership. The plaintiff contends that these facts are not within the issues, and we are of the opinion that this position must be sustained. There is nothing in the proceedings pointing to the existence of a partnership, and it is beyond all doubt that questions concerning a subsisting partnership, its debts and assets, and the rights and liabilities of the partners, cannot be litigated under a vague allegation that the assignor of one of the parties to the action is indebted to another party in a given sum of money. The several assignments of the debt secured by the mortgage, the foreclosure of the mortgage, and the collection by the defendant of the amount due thereon, being admitted by the pleadings, and the findings not sustaining any of the defenses to the action, the plaintiff was entitled to judgment. Judgment reversed and cause remanded, with directions to enter judgment for the plaintiff for one-half of the amount collected on the judgment of foreclosure, with costs of this action. Neither Mr. Justice Crockett nor Mr. Justice McKinstry expressed an opinion.