Henkel v. Heyman

Mr. Justice Scholfield delivered the opinion of the Court: The common law did not admit of partnerships with a restricted responsibility, and the statute, therefore, authorizing limited partnerships must be substantially complied with, or those who associate under it will be liable as general partners. Bowen v. Argall, 24 Wend. 496; Smith v. Argall, 6 Hill, 479; Same again in 3 Denio, 435; Richardson v. Hogg, 38 Penn. St. 153; Andrews v. Schott, 10 id. 47; Van Ingen v. Whitman, 62 N. Y. 513. Our statute in relation to “Limited Partnerships” requires that the certificate showing the formation of the partnership, when properly acknowledged, shall be filed in the office of the county clerk and recorded at large, etc., and that there shall also be filed in the same office, at the same time, “ an affidavit of one or more of the general partners, stating that the amount in money, or other property at cash value, specified in the certificate to have been contributed by each of the special partners to the common stock, has been actually and in good faith contributed and applied to the same.” And it is expressly provided that “ no such partnership (i. e. limited partnership) shall be deemed to have been formed until such certificate, acknowledgment and affidavit shall have been filed as above directed.” Rev. Stat. 1874, p. 678, secs. 6, 7, 8. The averment in this plea comes far short of the requirement of the statute. The statute requires that the certificate, acknowledgment and affidavit shall be filed—that is, placed to be kept (13 Vin. Abrid’t. 211) in the office of the clerk of the county—and not, as averred, merely temporarily deposited there. Had the certificate, acknowledgment and affidavit been left with" the county clerk, with directions to file them, his refusal to comply with the directions would not, doubtless, have affected the rights of the parties. In that case the parties would have done all that they could have done to comply with the law. But here the papers are taken away by the parties themselves. By their own voluntary act they prevent the papers from being on file. But counsel insist the statute does not require that the certificate, acknowledgment and affidavit shall be kept on file: and that the rules applicable to deeds, etc., filed for record must apply to these documents. The statute uses no qualifying language in regard to the filing of these papers. It does not say they shall be filed “ for record,” or “ until recorded,” but that they shall be filed; and the certificate so acknowledged and certified shall also be re-' corded—but the affidavit of the partners is not required to be recorded. See Rev. Stat. 1874, p. 678, secs. 6, 7. Deeds, mortgages and other instruments relating to or affecting the title to real estate, are required to be recorded, and the statute makes them void as to creditors and subsequent purchasers without notice, until they ar& filed for record, and the record is made evidence of the deed or other instrument in behalf of all persons not having the original in possession. In those cases, the sole object of the filing of the instrument is, to enable it to be recorded. After filing and until the recording, the deed or other instrument is, itself, constructive notice, —after the recording, the record affords such notice. As before observed, the language here does not indicate that the filing is to be temporary merely, but permanent. Like the filing of a declaration, and other papers required in practice to be filed, it would seem the papers filed are to become part of the permanent records of the court. But even if we were prepared to hold that the object of filing is only temporary—to allow the papers to be recorded— it would be impossible, under this plea, to hold that Henkle has done all that the law required him to do, to limit his liability. It is averred the papers were not filed and recorded, by reason of the neglect of duty by the clerk] but it is also averred that the papers were taken away from the clerk’s office, by Henkle, and that he has since retained their possession,—and it is not averred that he did not know they were not filed and recorded when he took them away. This averment, under an old and familiar rule of pleading, must be taken most strongly against the pleader, (1 Chitty’s Pleadings, 7 Am. ed. 578;) and so we must conclude, when he took the papers away, he knew they were not filed and recorded. Ho case cited by counsel goes to the extent of holding that the mere neglect of a clerk to record a paper will justify a party in knowingly taking it away from the office unrecorded, and in dispensing with all further efforts to have it recorded. If he knew the papers were not filed and recorded, he was inexcusable in taking them away from the office in that condition. It was his duty, and the law gave him ample remedy, to compel the clerk to file and record the papers. We think the plea was clearly insufficient and the demurrer to it was properly sustained. • The judgment below is affirmed. Judgment affirmed.