Sav. & Loan Soc'y v. Gibb
Before: Field
Synopsis
Where one of two partners executes a mortgage upon Ms separate property to secure a debt of the firm, an action to foreclose the mortgage may, after the death of the mortgagor, be maintained against his executor, without any showing by the plaintiff that the partnership is insolvent, or that he has pursued his remedy upon the debt against the surviving partner.
In such action, where the surviving partner is also the executor of the deceased partner, and claims as his devisee an interest in the mortgaged property, there is no misjoinder in making him, as an individual, a codefendant with himself as executor.
Field, C. J. delivered the opinion of the Court Cope, J. concurring.
We have carefully considered the objections taken by the defendants to the complaints in these cases, and are of opinion that they are untenable. The brief of the counsel of the plaintiff satisfactorily answers them. The Reporter will give a full synopsis of the briefs of the learned counsel in the report of the cases.
The judgment is reversed, and the cause remanded for further proceedings in both cases; and inasmuch as the executor has died since the argument, the judgments will be entered as of the first day of May, that day being previous to his death. (Blade v, Shaw, 20 Cal. 68.)
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