DOWELL V. MITCHELL, 105 U. S. 430 (1881)

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U.S. Supreme Court

Dowell v. Mitchell, 105 U.S. 430 (1881)

Dowell v. Mitchell

105 U.S. 430


Where a note for the debt of a firm was made by its surviving member, who, to secure its payment, executed a mortgage on real estate, which was the individual property of his deceased partners, held that on the ownership's being shown on the hearing of the foreclosure suit brought against him and their heirs, the bill should be dismissed without prejudice, the ground of equitable relief not having been made out and the complainant having a complete remedy at law to enforce the payment of the note.

These are cross-appeals from the same decree. The original bill was filed Aug. 22, 1877, by John H. Dowell and H. M. Mandeville, late partners under the name of J. H. Dowell & Co., against Askew, as administrator of the estate of Claiborne S. Barron, deceased, Margaret Barron, his widow, his three children, and William H. Brazell. Askew resigned pending the suit, and C. E. Mitchell, the administrator de bonis non, was made a party defendant in his stead.

It appears from the evidence that the complainants were cotton factors and commission merchants in St. Louis, and in that capacity acted for Barron and Brazell, who, Oct. 4, 1873,

Page 105 U. S. 431

formed a partnership under the name of Barron & Brazell, to continue two years. On Oct. 4, 1875, the day upon which the partnership expired by its own limitation, Barron died, the firm being then indebted to the complainants for advances in the sum of $15,989. Brazell, as surviving partner, was left in possession of the assets of the late firm, with which he continued business in the firm name, and on April 15, 1876, he had an accounting and settlement with the complainants, to whom there was found to be due $8,456. Thereupon he, in the name and as surviving partner of the late firm, made to them three notes, in the aggregate amounting to that sum, and to secure them executed a mortgage on a parcel of real estate in the Town of Hope, in the State of Arkansas, the legal title to which was in Barron at the time of his death. The bill was to foreclose the mortgage. The defenses were: (1) that there was nothing due from the late firm of Barron & Brazell on the notes; and (2) that neither Brazell nor the firm had any title to the real estate, but that it was the individual property of Barron, and that the mortgage was therefore void.

Upon final hearing, the circuit court was of opinion that the amount specified in the notes was due to the complainants from Brazell and the estate of Barron, his late partner; that the real estate described in the bill, and alleged to be the property of the late firm, had never been its property, but belonged to Barron at the time of his death; that the title thereto was in his heirs; and that Brazell, as surviving partner, "had no right or authority to execute said mortgage on said property, and that said mortgage deed was void and of no effect."

Thereupon the court decreed that "so much of complainants' bill as prays a decree of foreclosure of said mortgage be denied," and rendered a decree against the administrator of Barron's estate and Brazell for the amount due on the notes purporting to be secured by the mortgage.

Page 105 U. S. 432

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