Cummings v. Parish

Harris, J., delivered the opinion of the court: The only point necessary to be considered in this case is, whether the appointment of the trustee, Robert A. Shell, who sold the land in controversy to the defendant in error by virtue of such appointment, was a valid execution of the powers under the deed of trust authorizing him to execute it. The deed of trust purports on its face to be executed between David K. Cummings of the first part, David Bentley of the second part, " and Bailey D. Barker and Joel T. Parish, partners under the style and firm-name of Barker & Parish, parties of the third part." The deed provides: “in the event of the death, removal, or resignation of said Bentley, the said parties of the third part are hereby empowered to appoint a successor, with full power to carry out the provisions of this trust.” The déed is signed as follows : “ DAVID K. CUMMINGS, [seal.] “By M. M. Cummings, his attorney in fact, [seal.] “DAVID E. BENTLEY. [seal.] “ BAILEY D. BARKER. [seal.] “JOEL T. PARISH. [seal.]” [414] The deed is then acknowledged by each of the signers — Bailey D. Barker and Joel T. Parish severally — and then follows this instrument of appointment: “ Whereas on the 20th day of April, 1856, David K. Cummings executed a deed of trust to David B. Bentley for the security and indemnity to Barker & Parish of certain liabilities therein set forth, in which deed of trust it was provided that in the event of the death, resignation, or removal of the said Bentley the said parties of the third part O', e. Barker & Parish) are hereby empowered to appoint a successor, &c.; and whereas the said Bentley has removed from this State so that he cannot execute the said deed of trust: now, therefore, in accordance with the provision in the said deed of trust, we, the undersigned, the said firm of Barker & Parish, appoint Robert A. Shell as the successor of said Bentley; and the said Shell is hereby clothed and invested with all the powers and authority by said deed of trust (vested) in the said Bentley. “ Given under our hands and seals, this the 9th day of February, A. D. 1858. ' ' “ BARKER & PARISH, [seal.! “-- [SEAL.]” The question now arising is, whether one partner of the firm of Barker & Parish had the power under this deed of trust, by the use of the firm-name, to appoint the new trustee, Shell, or whether the deed of trust vested that authority in Bailey D. Barker and Joel T. Parish. It is to be observed that there is a wide distinction between the rights, duties, and powers of partners, as between themselves, and in reference to third parties unconnected with the partnership. Their authorities, rights, and duties, in relation to each other, are derived from their mutual interest and mutual agency for each other in the business of the partnership ; and hence in all matters pertaining to the partnership business as the authorized agent of the firm, each partner has the complete jus disponendi of the whole partnership interests; 3 Kent’s Com. 49 ; and may therefore act for the firm, in their common name, without the consent of the other partners. Story on Agency, p. 44, sec. 37; Story on Part. 1; Smith’s Merc. Law, 73; Collyer on Part. p. 188; sec. 195. But when acting for others, and in matters not pertaining to the contracts or liabilities of the firm, nor in discharge of the [415] ordinary duties of their business, no such agency exists, nor can it be presumed without express authority. We must look therefore to the terms of this deed to ascertain the intention of the parties — as well the intentions of the grantor as of the cestui que trust — whose rights and interests are to be committed mutually to the trustee to be appointed under the power conferred by the deed. The language of the deed is, “that in the event of the death, removal, or resignation of said Bentley, the said parties of the third part” shall appoint a successor, &c. The body of the deed declares that “Bailey D. Barker and Joel T. Parish, partners trading under the style and firm-name of Barker & Parish,” are the parties of the third part. When we look to the execution of the deed it is signed by Bailey D. Barker and Joel T. Parish severally, and not as partners; and acknowledged by them, respectively, before the justice certifying its execution. It seems clear, therefore, that the power of appointment conferred by this deed is given to “Bailey D. Barker and Joel T. Parish, partners trading under the style and firm-name of Barker & Parish,” and not to either one of the firm as the agent of the other. It was vested in these two “ parties” as individuals, and not in their partnership character, because they are so named and described, and their partnership and firm-name used to point out, still more specially, the individuals referred to. The donation of the power being to two individuals jointly and not severally, one could not exercise it. It being a matter of special confidence, it .was not competent for one to assume to execute it in the name of both, upon the ground of their general 'mutual agency for each other as partners. Eor, in executing this power, they were not the agents of each other, but the agents of Cummings, the grantor in the deed of trust, as well as the creditors secured by that deed. The appointment having been made by one of two persons in whom a joint power was vested, was therefore void, and the sale made by the trustee, Shell, by virtue of this appointment also void. It follows that the complainant in this bill did not obtain even an equity by his purchase at the sale made by this trustee, and [416] has nothing therefore upon which he can rely for the relief he seeks. Let the decree be reversed and bill dismissed.