Allen, West & Bush v. Whetstone

The opinion of the Court was delivered by Fenner, J. A careful consideration of the evidence leads ns to the following conclusions as to the facts : Mrs. Mary E. Whetstone recovered a judgment of separation of [848] property against her husband in 1875. Immediately thereafter she executed in favor of her husband, Robert Whetstone, a power of attorney, general, special, of the broadest character, embracing powers to receive her moneys and property, to collect and compromise claims, to buy, sell, transfer and assign any and all property belonging to her, to make all contracts pertaining to any and all matters in which she may be interested, to sign for her notes, drafts and all other instruments of writings, etc. It is difficult to conceive of any power possessed by Mrs. Whetstone which might not have been executed in her behalf by her husband. Mrs. Whetstone then established herself in business as a public merchant, which business was managed by her husband, under the power-referred to, and was conducted in the name of Robert Whetstone, agent, or later in the name of Whetstone & Co. The business was not prosperous, and by the year 1881 had become embarrassed and^insolvent. As a desperate expedient, Whetstone applied to Allen, West & Bush, the cotton factors and heavy creditors of Whetstone & Co., to buy for that concern some cotton futures. Plaintiffs replied, refusing to do so, unless secured for necessary margins. Whetstone responded, that if plaintiffs would execute Ms order, he would sell to them certain storehouses belonging to his wife, title to be held as security against loss. Plaintiffs accepted the proposition, and made the investment for Whetstone & Co. Thereupon, Mrs. Whetstone, aided and authorized by her husband, executed an act of sale of the storehouses to plaintiffs, for the expressed consideration of “ $2,500 cash, invested by Allen, West & Bush for the use and benefit of said Mrs. M. E. Whetstone,” and upon the condition that if she should pay back the $2,500 by the 1st day of June following, the sale would be null and void, otherwise to remain in full force and effect. The firm of Whetstone & Co. was succeeded by Whetstone & Ellis, consisting of Mrs. Whetstone and Dr. Ellis; subsequently Dr. Ellis purchased the interest of Mrs. Whetstone, and the firm of Larkin & Ellis was formed, which, on February 3d, 1882, entered into a written agreement with plaintiffs to occupy the houses as their tenants for the remainder of the year, upon the consideration of acting as plaintiffs’ agents in settling up their business on Oakridge. On January 25th, 1882, the deed to plaintiffs was recorded. After that time, Mrs. Whetstone and her husband conceived the idea of repudiating the transaction with plaintiffs, and to that end, they began to set up pretensions to the continued possession of the storehouses, and obtained from the tenants acknowledgment in writing of thqir holding under Mrs. Whetstone, directly in the teeth of their [849] prior contract with plaintiffs. Mrs. Whetstone then executed a deed of sale of the property to her mother, Mrs. E. G. Larkin, who continued thereafter to claim possession and ownership of the property, and procured similar acknowledgments of her possession from the tenants, and even entered into a conditional contract of lease with them for the year 1883. On learning’ these facts, plaintiffs instituted the present action of slander of title against Mrs. Whetstone and Mrs. Larkin, the object of which is to quiet their title to, and possession of, the property. Upon the suggestion of the collusive proceedings between their tenants and the defendants, threatening divestiture of their possession, the Judge granted an order of judicial sequestration of the property pendente lite. The defendants allege substantially the nullity of plaintiffs’ title to the property, and the validity of Mrs. Larkin’s title, which latter- they pray may be recognized, and that she be decreed the owner of the property. We shall consider the various questions presented in the following order: 1. It is claimed that the judicial sequestration, without affidavit or bond, was wrongful, because issued “at the request of the parties.” The fact that parties suggested or requested it did not deprive the court of the power to order the sequestration ex-officio, under C. P. 273, without affidavit or bond. 2. Exception is taken to the capacity of Allen, West & Bush to stand in judgment, because it is a commercial firm and incapable, as such, of owning real estate. The exception is frivolous. The restrictions as to the dealing in immovable property by commercial partnerships are limitations upon the powers ánd rights of partners in reference thereto. A commercial partner has no authority to bind his co-partners without their consent, by purchases or sales of immovables in the name of the firm. But such transactions are perfectly valid when made with the consent of or approved by the co-partners, who, under such circumstances, become joint owners. In the present suit not only the firm, but all the members thereof are parties, and their right to stand in judgment does not admit of question. 3. It is urged that plaintiffs’ title is without effect as against Mrs. Larkin, because being a sale by private act it was not acknowledged or proved prior to recordation, in accordance with Article 2253, Bev. Civil Code. [850] It was not supposed that this question would again be agitated, after the exhaustive consideration and disposition given to it in Stall cup vs. Pyron, 33 An. 1249. ■ 4. Nullity of the deed to plaintiffs is urged, because it was not accepted in writing by the latter. It is well settled that written acceptance is not necessary, but may be established by acts clearly indicating acceptance. Balch vs. Young, 23 An. 272; Amory vs. Black, 13 La. 264; Ryder vs. Frost, 3 An. 523. Such acts are abundantly established in this case. 5. There is not the slightest foundation for the defense of error and fraud set up by Mrs. Whetstone. It is not pretended that plaintiffs ' practised any fraud or did anything to lead her into error. The deed was prepared by her husband, and presented to her for signature by him. If she failed to read it, it was her own fault, and plaintiffs cannot be affected by any error resulting from her own gross negligence. Watson vs. Bank, 22 An. 14; Keough vs. Foreman, 33 An. 1439. 6. The pretense that the advance of $2,500 made 'by plaintiffs as .the consideration of the deed, was made for account of Robert Whetstone individually and not of his wife, is abundantly refuted by his ^letters, by the acts of the parties and by the recital in the deed itself.' - 7. The defense of illegality of consideration is without foundation. The consideration was $2,500 in money. That money was invested in cottou futures by her direction through her agent. Plaintiffs did not sell her the futures. They are not dealers in futures. They simply acted as her agent in investing her money as she directed them. Moreover, there is not in the record a word of evidence showing the nature of these future transactions, which, for aught that appears, may have been perfectly legitimate purchases of cotton to be actually de- and paid for in the future. 8. The release given by plaintiffs to Mrs. Whetstone, “ from all obligations that may have arisen on account of the firms of Whetstone & Co. and Whetstone & Ellis,” manifestly has nothing to do with this case. There were no obligations remaining on Mrs. Whetstone touching this transaction. The property had been transferred. The price had been paid. Nothing remained except the right of Mrs. Whetstone to redeem by paying back the price before June 1st. Defendants’ claims are without the semblance of equity from any point of view. It is undeniable that plaintiffs have parted with $2,500 as the consideration of this deed, according to the direction of Mrs. Whetstone and for her exclusive benefit. [851] She seeks to escape from her obligation, not only without tendering, but without even expressing her willingness to refund this consideration. We find, however, no support for plaiutiffs’ claim for damages, and reject their prayer for amendment in that respect. Judgment affirmed at cost of appellants.