Jones v. Parsons

By the Court, Rhodes, J. Thomas C. Brunton, made to' the plaintiff his promissory note, on the 17th of November, 1857, and to secure its payment, at the same time executed a mortgage of the undivided third of the Yorktown and Sonora Water Ditches. The plaintiff now seeks to foreclose the mortgage against the administrator of Brunton (now deceased) and Brunton’s vendees. The Court rendered judgment against the administrator, but refused to foreclose the mortgage. The plaintiff appeals from that portion of the judgment refusing to foreclose the mortgage and from the order refusing a new trial.

It appears from the record that on the 4th of May, 1857, Brunton and Parsons were the joint owners of the Yorktown Ditch, and on that day they, with Grleason, purchased the Sonora Ditch, and Brunton and Parsons then conveyed to [103]Gleason the undivided third of the Yorktown Ditch, whereby the three persons became equal owners in the two ditches, and they formed a partnership, the ditches forming the main part of the partnership property. Brunton and Parsons put into the firm the Yorktown Ditch on their part, against the purchase money paid by Gleason on the Sonora Ditch.

The parties continued as partners, holding the two ditches, until the 13th of July, 1859, when they dissolved partnership, by an agreement in writing, and in order to pay the partnership debts, therein stated to be twenty thousand dollars, Brunton and Parsons conveyed to Gleason their interest in the ditches, and Gleason agreed to pay the debts. In April, 1860, Gleason conveyed the ditches to the defendant Dorsey, and subsequently Dorsey conveyed the same to the Phoenix Water Company.

Gleason sold the property for the purpose of paying the partnership debts—Dorsey agreeing to pay the same. Gleason paid some portion of the partnership debts out of his own means. At the date of the plaintiff’s mortgage the partnership debts amounted to twenty or twenty-five thousand dollars, and the indebtedness continued down to the sale to Dorsey, when the debts amounted to about twenty-five thousand dollars, of which amount five thousand dollars was owing by the partnership to Gleason. The value of all the partnership assets at the dissolution, amounted to about twenty thousand dollars, the water ditches constituting the bulk of the property claimed by the partners as partnership property.

The plaintiff contended, that the ditches were not partnership property, but that Brunton, Parsons, and Gleason were merely partners in the use and management of the ditches. There was no finding of facts filed by the Court, but the issue, as to their being partnership assets, was directly presented by the defendants, and the judgment of the Court, refusing to foreclose the mortgage, could not have been rendered upon any other issue in the cause, nor without finding that fact for the defendants. There was evidence in the cause showing that the partners intended to put in the ditches as capital stock,