Aldridge v. Elerick

The opinion of the court was delivered by Dennison, J. : If this plaintiff in error had any authority for seizing and disposing of the goods in controversy, it was by virtue of the chattel mortgage given by A. Clymer to the Ridenour-Baker Grocery [309] Company, and the execution of J. W. Brigham & Co. against Clymer. The executions which were returned unsatisfied on the 14th day of January, 1889, were certainly no defense which could have been set up by said Aldridge to a suit begun on the 18th day of March, 1889. Therefore, unless said Aldridge has authority by virtue of said mortgage and said execution of Brigham & Co., he had none. Elerick, this defendant in error, had purchased Lee’s undivided one-half interest in said goods, and was a partner with said Clymer at the time Clymer gave said mortgage, and said Elerick had purchased Clymer’s interest in said goods prior to the time of the levy of the execution of Brigham against Clymer. “A mortgage by an individual partner, for his own purpose, of all his right, title and interest in and to its real estate and other property of the firm, imposes no actual lien upon the property itself, or upon any part of it. The corpus is joint property. The interest of an individual partner consists only of his share in the surplus remaining after the payment of the debts and settlement of the accounts of the firm. It is not until that interest is ascertained definitely, and set apart as the share of the mortgagor, that his mortgage is available against any specific property.”(Jones, Ch. Mortg., § 45.) A mortgagee takes no greater right or interest than the mortgagor had, and, as one partner cannot take possession of the partnership property, neither can his mortgagee do so. As to the rights of said Aldridge to hold said goods, under the execution of Brigham & Co., against Clymer, the court properly and fully instructed the jury as to the question of fraud in the transactions between said Clymer and said Elerick, and the jury found a general verdict in favor of this defendant in error, and [310] there was sufficient evidence to sustain said verdict. It is not the province of this court to disturb that finding. But, suppose the jury had held the sale from Clymer, as to his undivided one-half interest, fraudulent, and the officer had a right to sell Clymer’s one-half interest: In that event, Elerick was entitled to recover, because Aldridge sold all the goods instead of thq one-half of them. "Where the officer sells the whole, when entitled to sell only the interest of the execution-debtor, the other owners may treat him as a tresspasser ab initio, and maintain their individual action against him (Spalding v. Black, 22 Kas. 64, and cases therein cited.) This plaintiff in error claims that the trial court erred in not granting a new trial because of the absence of the witness, T. J. White. T. X. White was served with a subjxma. duces tecum, to bring with him certain papers and records, and said White afterward appearec} in court and testified, and all the papers and records that he was required to bring, or which were desired by this plaintiff in error, appear in the records of this case and have been treated as though they had been duly offered in evidence. Therefore, this plaintiff in error has not been prejudiced by the refusal of the court to grant a continuance in the case, and the court did not abuse the discretion given him in the matter of granting a new trial. No prej'udical error appearing in the record in this case, the judgment of the district court will be affirmed. All the Judges concurring.