868
FEDERAl. RE?OltTEB.
which' .not been adverted to in the foregoing opinion, under the bellefthat sufficient reasons have ,already been assigned fodhe judgment of the court. The doctrine that 11 surety is a favored debtor was brought prominently into view, as well as t,he hardship of the defendant's,position in beingoompelled to for a 4ebt from which he had not and could 'not have derived any: ,benefit. is a mistake, however, to suppose that by "favor" is D;leant, "partiality," or any exclusion of a due oonsideration of the meaning is, as stated by Justice,STORY, that the S\lretylsundertaking is to receive a strict interpretation;;and must notbeC1t;tellded beyond the fair scope of its terms. When. a surety has and voluntarily contracted to answerfor the· default of another i without having been deceived or misled by the representations of the creditor, and there has been no departure from the terms, of the oontract, ,he cannot be released from his oblig:Hion. He musUirstsatisfy court that, on some legal or equitable ground, he is entitled to be dischlU;ged. The creditor also has the right, when he has parted with or property on the faith of the surety's guaranty, to be saved from l.oS!!, /lnd proteqtion from the court. The peculiar hardship in present case grows ou,t of the oUB depreciation in the; value of realestllte.in Cecil cOHnty since the sale B.ut the ,purchaser ,and his surety ,were not ignorant or inexperienced persouB,whe'IlJhey made the bargain. They stood on equal terms with ' No" charge,of 01.' cl:u;ldealment of an)' Il}lilterial facto);!, the part of the "eudors, by wh,iGh the ptirohaser iQtoanunfprttmate speculation, has b(:Jen proved; . Thequestillln.io:,Buch ,cases IIlways is, was the contract areasonableandfair one at, the'time it was made? . If such ,was the fact, the parties ltl:e:oonsideredll,$; taken upon the risk of quent:fluotuations the property .lffllard ,V;. Tayloe, 8 Wall. 571. The adoptionofa differeut rule open the door to endless oonfusion lind Let ,a decree. be.'entered: fortbe complainant·.
GES'r ii
v: PAcKwooD et al. D.Orego.n.:March 19,1888.)
," ' 'On$'\vh6 takes' a mere conveyance Of (mother's interest In real property, or is not purchaser for a valuable"c()Jl.sideration Within tb\l r\\le in equity, which protects such a purchaser against a prior cODTeyance orrighiof which he liall nq notice; for 'by the very terms of his convE'yanc& lie hashbtice that he Is, 'purchasing nothing more th;an the interest or right his vendor, then has in 1ll.lld.1 , , lAs to title to 'land through a 4Ul.tclafm deed is a bonaftd6 pui-chaser W'itheut notice' ol'tL6t, soo JohnlDav.' Williams, (Kan.) 14 Pac. Rep. 587, and note; African M. E. Church V'. Hewitt, Id.540;,Hastings v. Nissen, 81 Fed. Rep. 5117; V'. Albright, (Mo.) 5 S. W. l'tep. 801; Tram Lumber Co. v. Haaoock, (Tex.) 1 f).W;:EWp, 724. .. ,
'
GEST V. PACKWOOD.
2.
SA.1dE-PURCltABER FOR
VA.LUE-ANTECEDENT DEBT. A purchase of real property, or the assignment of a th<>reon for an antecedent debt, doesl1ot make the vendee or assignee a purchaser fora valuable cOnsideration,so asto entipe bim to protection against a prior conveyance of or right in or to such property.
(Syllabu8 by ihe Oourt.)
In Equity. Snow, for plaintiff. O. P. He(tld. for defendants. DEADY, J. On 2,1878, William H. Gest, a citizen of Illinois, brought this suit against William H. Packwood, T. J. Carter, L. F\ Grover, Wi.lliam S.Ladd and W .J. to have a mortgage. on the Eldomdo ditch, in B,ak;er county, Oregon, owned by Grover, apd two judgments against T. J. Carter in favor of Ladd aqd Leatherwood,,@spectively,declaredofno effect so far. as the plaintiff and said ditch cO!1cerned,and to compel said Packwood and Carter to ,convey the latter to the plaintiff and. account for the aqd ,tpereof since May, 1874. It appears from the bill that, on February 15, 1873, the defendants Packwood and Cart,er purchased the ditch ,qn e;x:ecution to enforce theretofore obtained by Paqkwood apd C. 11-1,. Carter, the latter having assigned thE! same to T. J. Carter"againstthe ,Mll1heur and Burnt River Consolidated Ditch and Mining Cqmpany"thethen own,er,of .said ditch. On May 23, 1873, PackwQod .M.<i, ,the- sheriff's, certificates of SUCll ,sllie to Arthur · give his notes therefor to the amount of$29,7PO, payable,Jpart},yto Packw{)od and partly to Carter, at various dates, .thela.st d.ne onMarch 1, 1874, which notes were to be ind,orseQ. by 0,larke, Layton & Co., and in the event of their non-payment,. Rice was to reconvey the. ditch to Packwood .,and Carter as for 8\1C)1 paymeI:!t.. The notes were made, indorsed, and delivered, and Rice into the possession .of the ditch, and so continued until May 4, 1874, during which time .he operated the same and expended thereon in permanent improvements thesum of $15,000, and paid a large porti()n of said notes. In July, 1873, no redemption having been made, Pack'Wood and Cartflr ,seoretly .obtained the sheriff's de(ld to the ditch for the purpose, as is alleged, of executing the mortgage now held by the deGrover, C. M. Carter, in fraud ,of the rights of Rice. On May 4,1874:, Rice and Clat;ke, Layton & Co., and Packwood and Carter _!pade what' is called an agreement of lease, reciting therein the agreement .of May, 1873, e,nd that all the notes given on the purchase of the .ditch were not paid, whereby Rice leased the ditch and certain other mining pil'opertywhich he had acquired in the meantime to Pa,ckwood and C8fter for one year, and fromiyear to year therellfter until certain indebtedincludiI;Jg the unpaid notes of were paid, according to certain spe<::ifiedpriorities, out of the net proceeds of the sales of wattlr and the working Il.nd sales of mining which proceeds were to La paid by Packwol/d and Carter, monthly, as rent lor the property, to J. v.34F.llO.5-24
the,possession of'the prop'arty' 'tei' :Packwood aIid"Carter, blit' without knowledga. of a mortgage to C. M. Carter, which had been by T. J. 'Ciltter in the meantime, and upon the agreement that when said indeb't'edness was paid the possession of the property should be returned to him, and Packw,ood and Carter would execute to him a formal conveyance of the ditch.. On January 4,1874, T. J. Carter executeda,motlgrige tq'C. M. Carter of his interest in one-half of said ditch to secure the p'ayment of his note to D.. M. Carter of $39,090 of date therewith, payable in one year, with interest 1 per cent. a month, which, note ,Rnd mortgage, the bill <:harges,. were given Without· and with intent .to ,defraud RICe; that C. M. Carter had ·,1I>0th 'actl1aland constructiverknowleageof the agreement and sale df May, 1873; ami the mortgage \Vas as.."ignedto Grover in April, lS76, without consideTation, and with ,the like intent tind knowledge. The bill' under appropriate allegations,there'for, prays for an accounting Ca.rter,' and a ooll-teyance by them 'to the plaintiff, as the'sdctlassor in inte.rest' of Rice and Clarke', Layton' & Ct>. in the' ditch; The' l:ulswer. 'of Packwood and Carter sh?Ws that' none 6(the debts secured by the agreement of May 4, 1874'"were pllid, excep'tsotiie that were paid 'by Clarke, Layton & Co. t and tbatno 'from the ditch or paid to tlie' 'rested hete until' 1887, on the I1pplicationof the plaintiff of the property'was'appoiilted and the same. On Octciber14th the defendant' Gi'O-ver 'had leave tb8inswer the' bill,and Qn October'21st he filed'1t'plea t()"the' fide 'purchaser for'a v\tl coilsideration, without"notio0' 01 the';plaintiff'sl'ight:'The plea! states' ill substancethat on 'ahd prior to' Jalluary <8, 1874, Packwood and' Cafillrpreteri,ded'to be the Clwnerg"ln :co.tDmon of sa,id ditch,; and were; or be, in the free froth all in'cumhranceswhatsoe'Ver; that on'Jl1rtuary 8, 1874"m'M. Carter, believing that Carter andPacltwood were so seized lliIid'Pbssessed of the premises,received fro'm,T. J.Carter a c6ltiveyance Of his right, title, .ahd, interest;' and' claiitrwha:tsoever, II, in and 'tbsaid'ditch,' tobe voidoIi'the l'aytMnt ofT. J. Cairter's. note ito C.M. Carter, ,'of' eveli date' therewith, 'fdr 830,000, payatilfiu'oneyeltt,' with interest at 't 'per cen't. Ii nl'6nth' ''until paid, but otherwise ,toibe lind remain in full force as Ii mortgage; that the defel).daIit doeg'lYelieve ana aver that 'said sumo:f $30,000 w,asthen due Q.\M. Carler'frbn1 '£.J. 'Cartei', for moneyspaid'andadvahcetl; the forUler to'and for the latter; that said mortgage \vns dulyrecordM in Baker CountYi,that on iApm17; 1876, in of certain legal ren,(iered'C, M.Carter by the 'defendant,betwoon 1861 'and 1876, pttidand 'adyahc'ed 'by the latter to and 'fOr'the forfuer,C. M.'Carter assigned his interest !iri 'said mortgage tothe HElfendlint in payment ,of said indebtedness, whichservlcesand lrioneya b:triounted to more'thl1tl'$6,'fflOfnvalue, but saidstim was ji;tated in said 1issignnient as the corisii:leratiori therefor,becaustl'the ,mortgage WaS not !
,W .,Y4'tae, ,as
au
871 iIl!lfact worth:any: less than said sum; that on February, 8, 1879;,.the-aerendant suit in .th,e, C10urt for Baker county to:enforce the lien of said m(}rtga-ge,wheJ;ein, qn May 19, 1879, adecI'ee was given against T. J. Carter for the amount of the note and interest, which decree w,asthereby declared a first lien on the premises from the date thereof, and that no payment has ever been made thereon; that the defendant is informed, and believes and. so states, that at the date of said mortgage C. l\L Carter had no knowledge ohny "contract., ual relation" between Packwopdand Carter and Rice and Clarke, Layton & Co., concerning the ditch, by reason of which any equities affecting said propettyexisted in favor of Rice and Clll-rke, Layton & Co., and avers that C. M. Carter took said mortgage bona fide for a valuable consideration and without notice of the equities asserted by the plaintift herein; that at the time ofthe assignment to the defendant he had.no notice whatever,of,any between said parties "relating" to said ditoh, whereby any equities affecting the Same existed in favor of Rice and Clarke,.Layton,&:Co., s.nd "insists"that he is a bonafide purchaser. for a valullble'Consideration,without notice of the equities Claimer! herein by: the plaintiff; In. ,the allegatipns, by way of answer in support of the plea, thesta.1.ements in tlwpleaconcerning the good faith of the defendant and his assignor and their want of of the plaintiff's equity, and the consideration in sUPPoftof the mortgage and the assignment thereof, are repeated. They also contain denialson information and belief: (1) That on April'4,J876,theagreement of May 23,1873, bad been or. was asaReged in. the' bill, or that the defenqant ha,d any notice· of such record or t!:llj existence of such agreement prior to suchassignment; (2) that on January 8, 1874, ,or a.t any time ,after May 23,.187,3, or at all, Rice and,Clarke, Layton ,& Co., or either of them, were in the' actual possession ofsaid ditch, and if thElY were, it was ()uly through Packwood and Carter, who had the actual possessiQn as their agents, of which agency neither ,the defendant nor C. boL Carter had any notice until after the exeoutiqn' and, assignment of said mortgage;, (3) all manner of unlawful combination charged and im,plie4 against the defendant .and C. M; Carter, in the bill. The case was argued and submitted en the sut:' ftciency of the plea. The origin or nature of the right or title of any of these parties to this water, ditch, and mining ground is not stated or mentioned in the bill or plea. In' the3lhsence of anything to the contrary j it may be assumed that the watel1iwlls appropriated and conducted by means of the ditch between the teirmim:i thereof, in accordance with the custom of the trict, the law, of tM'state. 2 Laws Or., c.,60, "Mines;"lRev.St· .§§ 2340. By sectioOl 3833 (section 1, act amls,ection 3834 (section 2" act 1864) ofsaid laws,ditcbes for purposes are declared. relill 'property, au(U'the laws re!ath'8 to and transfer of real estate" 'are made applicable thereto. Whether this includes the registration of aoods or convey.ancesof such ditches. may be a question; ,but as effect or operation,thereof dependllto extent .onJ:egistration prol;>llbly it does. neitheJ,l tJae <;If nor; that of 1874, lll-
FEDERA.L REronTER.
thougnrelating" to thesaIe or purchase" of real'property, was entitled not hll.vingbeen acknowledged or proved as provided by, statute. '2 Laws Or.,' c. 21, § But'an unrecorded deed or contract of sale is good against a subsequent purchaser with actual notice thereof, no matter how obtained. Moore v. Thomas, lOr. 201; Musgrove v. Bon8er,5 Or. 313; Baker v. Woodward, 12 Or. 3, 6 Pac. Rep. 173. A plea defendant is a bona fide purchaser, without notice, for a valuable consideration, must directly deny the fact of notice and of every circumstance from which it may be inferred. Murray v. Ballou, 1 Johns. Ch. 575. It should deny notice in the fullest and clearest manner, whether the same is charged or not. 2 Pom. Ecj. Jur. § 785. Here notice or knowledge of the alleged equities is denied, but not of the facts ant ,or which it is claimed they arise. 'For instance, it is denied that the of sale of 1873 was duly recorded, which ,is an implied admission that it act\}ally was recorded. The pMsessiopof, Rice and Clarke; Layton & Co., as alleged in the bill 011 January 8, 1874, was enough to put C. M: Carter on inquiry as to the nature and extent oLtheir claim, and was therefore notice to him of all he might have learned by such inquiry. The answer to this allegation is t\ denial on information and belief that the parties were at any time after May 1873, in the ,actual possession Of the ditch, and an averment that iftheyhad any such possession it was only by Packwood and Carter as their agents. This is insuflicient as being evasive and uncertain. But the principal points made in the argument against this plea are (1) that neither the mortgagee; C. M. Carter, nor his assignee,- L. F. Grover, appear thereby to be purchasers for a valuable consideration; and (2) that C. M. Carter, having taken a quitelaim deed from T. J. Carter, is riot a bona fide purchaser without notice. In May v. Le Claire, 11 Wall. 232, it is held that a purchaser under a quitclaim deed is not a bona fide purchaser within the rule which protects such a purchaser frOID the operation of a prior conveyance or sale of which he had no nosufficient to prevent the purchase from being bona fide is tice. said to inhere in the· very form of this kind of a conveyance. 2Pom. Eq. Jur.§ 753. In such case the-purchaser only takes whatever the grantor could lawfully convey,-what there is left in him. To the same effect is the ruling in Oliver v. Piatt, 3 How. 340. A like conclusion was reached by the sllprerile court of this state in Baker v. Woodward, 12 Or. 10, 6 Pac. nep. 173, where it'was held that a deed of the grantor's "right, t,itle,and interest" in thelant,l, only passed the same subject to any priot' disposition thereof. It is admitted' ihatin some of the states this rule does not prevail. Mr. Pomeroy (2 Eq. Jur. §1753, note without Elxpressing any opinion on the questioll, gives the thereOn, from which it appears that the weight of authority ,is in favor of the rule as announced by the supreme court of this state and the United States, with \vhich agrees my own judJ!:ment. 'But -this court is bound by the' ,decision of the latter tribunal, and in the absence of any control'ling authority would on this question be inclined to follow that of the former. Thereiis another view of this matter which may be worth con-
to
GEST '/J. PACKWOOD.
37a
sidering. It'is proviaed by section 323, Code Civil Proc., thtlt a mortgage shall not be· deemed a com;eyance, so as to enable· the owner thereof to recover possession of the mortgaged premises without a foreclosure and slle. Under· this statute, which is but the logical sequence of the equitable doctrine of mortgages, announced by Lord MANSFIEW in King v. St. Michaels, 2 Doug. 632, that a is only a security, the supreme court of this state has held that a mortgage is only a security, and that the mortgagee acquires thereby no right to or interest in the mortgaged premises. Anderson v.Baxter, 4 Or. 110; Roberts V. Sutherlin, rd. 222. And see WithereU V. Wiberg, 4 Sawy. 232. From these premises the conclusion seems deducible that C. M. Carter acquired no estate or interest in the premises by virtue of his mortgage, but only the right to subject the grantor's interest therein to sale for the satisfaction of his debt, and that his assignee, L. F. Grover, whether he took the assignment with or without notice of the equity of Rice, is exactly in the same position. This equity, to which the lien of Carter's mortgage was subordinare, arose from the, sale by Packwood and Carter of the property to Rice on May 23, 1873, whereby he became the equitable owner thereof and they the mere trustees of the legal title for his benefit. , Counsel forthe plea, however, maintains that the Oarter deed, although technically a quitclaim, is in effect within the ruling in Van Rensselaer V. Keamey, 11' How. 322, where it was held that even in the case of ",a deed .of bargain and sale by release and quitclaim," when it appears on ihe face thereof that the parties thereto bargained for and about an estate ·of a particular description or quality, that the grantor and those claiming under him; are thereby estopped to deny that he was seized of such estate in the premises at the date of the conveyance. But in this case the deed contains no evidence that the parties bargained with reference to any particular estate other than the then right, titl,e, and interist of T. J. Carterin the ditch, and that was nothing more than the bare legal title to the undivided half thereof, which in equity and good conscience he then held in trust for Rice, his vendee of the property. Besides the controversy in Van Rensselaer v. Keamey was between persons in privity with the parties to the deed in question, and therefore the decision is not applicable to the case under consideration. Certainly Rice is in no way ,estopped or bound by the Carter deed, which is subsequent in point of time to his purchase and to whic;:h he is a stranger. But as it appears from the plea, and was admitted on the argument, that the onlycqnsideration for the mortgage orthe assignment iean antecedent debt, it must be held blld. Such a debt is 110t a valuable coniJideration within the rule invoked by the defenda.nt for his protection against the prior right of the plaintiff. Where a conveyance is made or a security taken, the consideration of which is an antecedent debt, the grantee or person taking the secUlity is. not regarded as a purchaser for a, valuable consideration. He has not parted with anythillgof value. He loses nothing by the transaction, and therefore there is no reason why .equity shonld interfere to protect him against a prior right, although he may have taken such conveyance or security without notice thereof.'
pited in i W hicq ,an debtis "held to. be a valuahl aIndiana, &ilq,C,uif()rnia. v. ,JordarJ" 2'\1:, In)::l. r 14; Ji.'t;fY' Olifford, , 335. In, Ne", 'York and Massachusetts, the rule is, wellestablis4ed, that a i,snota valua,bleconsidel'ation in such a <;sise'. Padgett v. Lawrence,,10 Paige, 180 t Wood v. Robinson, 22 N. Cary v. 'White, 52 N.,y. 142; Clark v. JiJlint, 22 Pick., 248. In v.,Batl!!J. 120 ,U. S. 7 Sup. Ct. Rep. 67.9, the SUpreme court hfl,dthe qllestion before it for the first time. Mr;. ,JU$tice Il4RLAN deliveredthe opinion. of the ,court, in the course, of which he refers with deference to (he case of v. Bank. 3 StQry, 364, 389, .wherein there was a controversy between a the assignee of Go<lfrey, his assignee in bankrupte)",concerning certain real and personal prop,erty I in which !tir.Justice STORY says: "This lelj.ds me to remark that tM baJ,lk does not ,stand'within the proo.icame,n, t,' Of, b,ein g II bV,na, ,fide pur, , fO,r, a, valu,ableconSirleration,' without n,,9,tice, in the s.enseof the rule The bank did not pay any considerationtherefor, nor did it surrender any securities, or release any debt due ... ... ... from"'''' '" Godfrey to it. The transfer from Godfrey Was simply a collateral security, taken as additional security for the old indebtment and liability of the parties to the notes described in the instrument of tr&!1sfar. It is trul;l, )that:as betWlrleu GOjjfrIrlY. "', ':'" "':: and the bank the latljer, was a debtor for vahle, and the transfel' was valid.; But the protection is not gi,ven by tile rilles of hiw to a party in such a predicament merely. He must not only tiaveJlad no nutice,blIthe ltl1ist have paid a consideration at the time of the transfer, either j n 'mOllli y or other propel'ty,or by a surrender of existi ng debts 'otseeul1ties held for the debts and liabilities. But here the bank has merely possflssed jtself of the pl'Qperty transfened, as aUxiliary securityfor the ol(ldebts It;haspaid.or given no new consideration upon the faith of it. It is therefore in truth no purchaser for value intbe sentle of the rule." " Referring,tpen, to the cases of Swift v. 16J>et. 1, and Railroad 00. v. Ba1lk,102 U. S. 14, in which it was interElstofcQm·' mel'cethat one who takes negotiable paper, before maturity, in the usual in payment of Qr llS security for an existing is course deemed to"have given a val]1a1>le c(>nsideration therefor, and takes it discharged, of all, efluities or. defenses existing betwfilen antecedent without, reference to his kIwwledge of the same, Mr. Justice HARL..\:N says: "Do these principles apply,to of a chattel m.ortgage, given mt>.rely as securityfor a pre-existing debt, obtaining which the mortgagee has neither parted, with any right or thingof substance, nor come under anybipd., agreement, to' postpone or delay the' colle9tion of his.demand? Upun principle, andacco'rdlng to the weightofallthority,thilil question mustbf> answered in the neg&tiv.e. 'The rules established in the interest of commerce to facili. tate the negotiation of merc-,intile paper, which, for all pracUcal purposes, as ploney, and not,in passes by reasont,to Instruments, c<mvey.ing or transf,e.l'ring real or personal proper y as security for the payme*,t 'Of money." ,'. ' 'SoIDe sought to to allegation the plea that the "in payment" of the defendant.'sdemand against tl;1ea/lsignor. the assignment is not, set out, nOr is it alleged that it
TllEl ()lllYI p
CLAY 11. FIELD.
Was so received, or that the assignor was discharged therefrom. Payment a pre-existing dl'lbt. may be made by the note of the debtor, or that of a third person, hut according to the decided weight of authority Ii novation does not take place unless there is an express agreement ,t() accept ,tlle latter in paytllen,t and discharge of the former. Otherwise the payment is only conditional, aod the creditor may, if the note is.not, paid, surrender it; and sue on his original demand. In re Owimette,,1'$awy·. 52, and. cited; The Katie, 3 Woods, 182. .Whetber the complete satisfaction and discharge of an antecedent dept,'wltbouttbe cancellation or sutrander of any written security by tbecreditor,constitutes a vliluable consideration is aqtiestion which the courtsoHbe different states have decided differently. Dr. Pomeroy evidently thinks the question ought to be decided in the negative, and says:
or
"1'0 hold that a conveyance as security for an antecedent debt is made :without, but that one in satisfaction of SUCh. d;ebt is made with, a valuable c()l\8id· the fact of.satililfaction Is not evidenced by any act of the creditor, 'but depends on 'mere verbal testimony, is opening the door wide for the easy admission of fraud. It leaves the rights of third persons to depend on the coloring given to a past transaction by .the verbal testimony of witnesses, after ,too has ,to the ,creditor the form and nature in which if is fur his ip,tel·611t. to ,A rule so e,asy for pnrty to defeat the nghts of others is cleatly impohtlc."
The'plll8oW, bad" 'and is ',i'
disallowed. '
,
'II.
FIELD et al. '
'Cl)iIif'ict (JOfJ,rt, ·
···l
if D. Mis8issippi, w: D.
March 22, 1888.) ·. "
, 'The sl1tl'iving partn6r'in' a eottonplantation, before the late war, nollbeing by th" or the will of the deceased, pat:tner, w;as not authorized 'to continue the vartnership business, after the death of the deceased partner, longer than 'was' necessary to gather, and sell the then growingcrop.l' ," ' , " ,, ..
1,3; SlllE,.....RIGRT 01' SUBvrvon ,TO '.I'RE PBl\SO:rUL'l'Y.
,U,pon ,the death of the deceased ,pl\rtner intestate, the title to the .personal the slaves .belongiI!gto firm, vested irlthe surviving , partner; for the purpose of belDg apphed.;...;Fir,t, to the payment of, the partneahip liabilities; 8econdly. fpra of the resi\lue pflulybetween the survivlDgpartner and the. personal representative of the deceased partner, according to the rights of eltchY , ., , , ' B.um"-Lt.UHLITYOI' SURVIVOR ACCOIDlTINU.
I.'
It·was the duty of the surviving partner to sell so Jnuch of the personal Property, including the if necessary, to pay oft debts due by the firm tohilnself or any other' person, and tq 80 apply it'. Failini to do sO,and contiritting the planting the plantation, and with the slaves and other
>,lWmelltingthe rights IWd liabilities of the SUrviving par·tnership js dissolved oy the death ot one partner, see Appeal of Shipe, (Pa.) 6 Atl. Rep. lOS, and note; Klotz!. (La.) 2 South. Rep. 208; Browp. v. Watson, (Mich.) llS N. W. Rep, 493; Wllliams v. Whedon, (N. Y.) 16 N. E. Rl>p.· ',,' " .