Sutlive v. Jones , 61 Ga. 676 ( 1878 )

Bleckley, Justice.

1. Section 1887 of the Code is in these words: “A partnership may be created either by written or parol contract, or it may arise from a joint ownership, use and enjoyment of the profits of undivided property, real or personal.” This seems to contemplate that lands may be partnership property, but not, we presume, in a more strict sense than they were held to be in this state prior to the. adoption of the Code. 19 Ga., 14. At all events, there is no reason for thinking that the Code interferes with the rule that the members of a firm are tenants in common in the partnership realty, and that each member can, for a debt of the partnership, incumber his own interest. 19 Ga., 14, 591. Applying the rule to the present case, the mortgage is effective as to the interest of P. B. Jones, the partner who actually executed it.

2. Was it so as to the interest of John E. Jones, his co-partner \ The authorities, we think, answer in the negative, unles he authorized the execution of the mortgage, or subsequently ratified it. 1 Brock., 456; 1 Mete., 518; 15 John., 159; 3 McL., 27; Coll, on Part., §394.

3. The result is, that if John E. Jones did not assent to or ratify the mortgage (and such peems to be the weight of the evidence in the record) it cannot be foreclosed against his interest in the premises; but it may be foreclosed against the interest of P. B. Jones, though in executing the instrument he used the partnership name, not acting in his own name further than by reciting that he was a member of the firm. He cannot deny that he had, at the date of the mortgage, an interest in the premises. 36 Ga., 499 ; 46 Ib., 133; 58 Ib., 178. The jury having found for the defendants' generally, when they should certainly have found against the administrator of P. B. Jones, a new trial should have been granted.

Judgment reversed.