Roberts v. Administrators of Oliver

McCay, Judge. This case turns upon the same principle as the case of Allen vs. Lathrop, decided at this Term from the same Circuit. If this mortgage was made by the copartnership as such, the partnership and its survivor are estopped from denying that the property mortgaged belonged to the firm. A man cannot contradict the assertion of'his own deed. The partnership, having by its deed created a lien on this land as the property of the partnership, is not allowed to come into Court, and in the face of this solemn assertion of title in itself, deny that it had title, and what the partnership could not do. Roberts, who is a party, as survivor, is also incapable of doing this since he succeeds to its rights and is bound by its acts. The only question is, does the deed convey this property or create this lien upon the property as partnership property ? The mortgage does not appear in the record. But the petition for foreclosure declares that the firm mortgaged the property. This the plea does not deny. It says it is true that the property did not belong to the firm. But, as we have seen, the survivor is estopped from doing this, if the property was mortgaged as firm property. Parties and privies are estopped. He is a party, so far as his own interests are concerned, and as the representative of the firm he is not only a privy, but more. We think, therefore, this plea was properly stricken out. It fails to deny the fact stated in the petition that the property was mortgaged as partnership property. Unless the plea does this it is not allowable; it is in the teeth of the defendant’s own acknowledged deed. Judgment affirmed.