Bolding v. Bolding

Findings of Fact.

JENKINS, J.

(1) J. P. Bolding owned the 125-acre tract of land mentioned in the pleadings herein, and W. H. Bolding held certain vendor’s lien notes against the same. By agreement of said parties this land was sold to R. L. Williams at an agreed valuation of $12,500, a drug store being taken in part consideration, and vendor’s lien notes for the remainder.

(2) Said parties agreed to become equal partners in the drug business, each to contribute a like amount of capital.

(3) J. P. Bolding put into the business $3,-400 more than was put in by W. H. Bolding.

(4) Williams failed to pay for the 125 acres of land, and deeded it to J. P. and W. I-I. Bolding, the consideration being the cancellation of his notes.

(5) J. P. and W. H. Bolding borrowed from the Concho Valley Loan & Trust Company for the drug business $2,000, and. executed a deed of trust on the 125 acres to secure the same.

(6) The trust company sold this note and mortgage to B. R. Bolding, and the samé is past due and unpaid.

(7) J. P. and W. H. Bolding traded the drug store to W. J. McDonald for the 160 acres of land described in the pleadings herein, and assumed the payment of eight vendor’s lien notes theretofore executed by McDonald to T. J. Neal in part payment of same.

(8) Neal sold these eight notes to thfe trust company, and indorsed the same in blank.

(9) The first three of these notes being past due and unpaid, W. H. Bolding, who lived at Mt. Pleasant, in Titus county, wrote to the trust company that he could find a purchaser for them. The Trust Company answered that they would not sell these notes, and that unless they and the accrued interest on all of the notes were paid they would bring suit on all of them. W. I-I. Bold-ing replied, requesting that the notes be sent to a bank at Mt. Pleasant for collection. This wa.s done, and the bank remitted the amount due on the three notes, together with the interest due on all of the notes.. When the fourth note became due, it was sent to the bank at Mt. Pleasant for collection, and the bank remitted to the trust company the amount due thereon. The trust company supposed that these notes and the interest had been paid by W. H. Bolding.

(10) In fact, W. H. Bolding sold these notes to his sister, B. R. Bolding, who had no actual notice of the bank trust company’s refusal to sell them. She also paid the interest on the remaining notes.

(11) B. R. Bolding also took up certain notes which represented partnership indebtedness of J. P. and W. I-I. Bolding.

(12) On January 15, 1916, J. P. Bolding sued out and had levied a writ of attachment on certain lots in San Angelo owned by W. H. Bolding, alleging an indebtedness against him of $1,220.75.

Opinion.

From the judgment rendered by the court, of which it is unnecessary to state further than the same is complained of by the appeal herein, B. R. and W. H. Bolding have sued out a writ of error.

We do not think that reversible error was committed in overruling W. H. Bolding’s special exception, nor in refusing to admit the testimony of the witness Bullock a,s to the value of the 125-acre tract of land. We think that the court erred in not foreclosing the vendor’s lien in favor of B. R. Bolding on the four notes owned by her, subject to the prior vendor’s lien held by the trust company to secure the payment of the four notes held by it.

[1] in so far as the purchase of said notes from the trust company was concerned, W. H. Bolding had no authority to sell them. They were not sent to him, but to the bank for collection, and the bank did not undertake to sell them. It is true they were indorsed in blank by Neal, and a purchaser of the same before maturity would have obtained title thereto. But the notes being overdue, the purchaser was affected with notice that Neal had parted with his title thereto, and her purchase of them under the circumstances did not affect the priority of the trust company’s lien as to the remainder of the notes.

[2] However, W. H. Bolding in inducing B. R. Bolding to purchase these notes was acting for the benefit of the drug firm of which he was a partner, and we do not think it lies in the mouth of J. P. Bolding to say that, so far as he is concerned, B. R. Bolding in purchasing said notes did not acquire a vendor’s lien against the land then and now owned by said copartnership. B. R. Bolding had no notice of the refusal of the trust company to sell said notes. She simply accepted the proposition made to her by W. H.Bolding to buy the notes, and authorized him to draw her check on her account with the bank to pay for them. The notes were delivered to her.

[3] We also think that the trial court erred in overruling the motion of W. H. Bolding and B. R. Bolding to decree that the partnership property, after the payment of prior liens, should be subjected to the payment of the partnership debts owing to B. R. Bolding and unsecured ‘by her mortgage or vendor’s liens. It is elementary that partnership property is liable for partnership debts, and such partner has the right to demand that it be so applied. Williams v. Meyer, 64 S. W. 70; Wiggins v. Blackshear, 86 Tex. 665, 26 S. W. 940; Moore v. Steele, 67 Tex. 435, 3 S. W. 450.

[4] Appellant J. P. Bolding contends that the pleadings were not sufficient as a basis for such decree. We think they were. J. P. Bolding alleged that this suit was brought to obtain a settlement of partnership accounts. Both W. H. and B. R. Bolding alleged that the debts due B. R. Bolding were partnership debts, and the court found such to be the fact.

On account of the errors committed in the trial of this case, we reverse and remand the same, with instructions to the trial court to enter judgment herein as follows:

1. In favor of the trust company against J.P. and W. H. Bolding for its debt, principal, interest, and attorney’s fees, as evidenced by the four vendor’s lien notes held by it, with foreclosure of its vendor-’s lien on the 160 acres of land, with execution for any unpaid balance after applying the proceeds of the sale of said land to payment of its judgment. The remainder of such proceeds, if any, to be paid to B. R. Bolding on her judgment, as hereinafter directed in the next paragraph hereof. The remainder, if any, after satisfying her said judgment, to be paid into the registry of the court.

2. In favor of B. R. Bolding against J. P. and W.- H. Bolding for the amount of her debt, principal, interest, and attorney’s fees, as evidenced by the four vendor’s lien notes held by her, and her debt by reason of her payment of interest on the eight vendor’s lien notes, and foreclosure of her vendor’s lien, subject to the-prior lien of the trust company mentioned in paragraph 1 of these directions, with execution for balance remaining unpaid, if any, after applying the proceeds of the sale of said 160 acres of land as directed in said paragraph No. 1 and in this paragraph.

3. In favor of B. R. Bolding against J. P. and W. H. Bolding for the amount, principal, interest, and attorney’s fees, as evidenced by the $2,000 note held by her, and foreclosure of her mortgage lien on the 125 acres of land, with execution for balance should the proceeds of the sale of said land be not sufficient to satisfy her judgment as directed in this paragraph. The balance of the proceeds of such sale, if any, to be applied to the payment of the judgment of B. R. Bolding, as directed in the next paragraph hereof, to the extent of such judgment. Should the proceeds of the sale of the 125 acres exceed the amount necessary to satisfy the judgment directed in this paragraph and the judgment in favor of B. R. Bolding directed in the next paragraph hereof, the remainder to be paid into the registry of the court. ■

4. In favor of B. R. Holding against J. P. and W. H. Bolding in addition to the amounts mentioned in paragraphs 2 and 3 hereof, for the amounts, principal, interest, and attorney’s fees, of the notes held by her, the proceeds of which were used in paying the partnership debts of J. P. and W. H. Bolding, whether said notes were signed by both of said partners or by J. P. Bolding only. Should any money remain in the registry of the court after satisfying the lien judgments herein directed, the same to the extent of the judgment directed in this paragraph shall be paid to B. R. Bolding.

5. Should any money remain in the registry of the court after satisfying all of the judgments hereinbefore directed, and all costs herein incurred, the same to the extent of the $3,400 excess advanced by J. P. Bold-ing on the partnership account shall be paid to said J. P. Bolding. Should any excess still remain, the court shall partition the same equally between J. P. and W. H. Bold-ing, and, for the purpose of making such partition, the court shall retain jurisdictioh hereof until it be ascertained whether or not there'is anything left to be partitioned.

6. Should J. P. Bolding not be repaid the excess contributed by him to the partnership as herein provided, judgment shall be rendered in his favor against W. H. Bolding for one-half of such excess remaining unpaid, and in such event, he shall have judgment foreclosing his attachment lien hereinbefore referred to, and execution for any balance after the sale of said lots under said attachment, and the trial court shall retain jurisdiction hereof until it be ascertained whether or not it becomes necessary to foreclose such attachment lien.

Reversed, with instructions.

<@=i>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

<&wkey;fFor other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes