Opinion
(February Term, 1894.)
Notary's Certificate of Acknowledgment of Deed — Mortgage of Partnership Property by One Partner — Affixing Seal to Partnership Name — Waterworks Machinery and Franchise — Public Necessity of Sale of Together — Receiver — Time of Proving Claims.
1. The certificate of a notary public concerning the probate or acknowledgment of deeds is prima facie evidence of the truth of its pertinent recitals; hence a notary's certificate on a trust deed signed by "W., K. Co." that it was "acknowledged by E. W., one of the firm of W. K. Co., the grantors," is evidence of the fact that the deed was executed by a member of the firm.
2. A trust deed executed by one member of the firm in the firm name, with seal attached, is binding on the firm as a contract, though not as a deed.
3. A seal is not necessary to the due execution of a mortgage of personal property, and hence a seal affixed to the firm name signed to a deed of trust of personal property does not invalidate the conveyance.
4. Contractors for the construction of a city waterworks plant for a water company gave a trust deed on the machinery to the seller, which provided that the machinery should not be considered as fixtures until the debt was paid; the machinery was placed on the ground provided by the company, but was not paid for; a receiver for the company was afterwards appointed, and proceedings instituted to wind up its affairs: Held, that public necessity required that the plant and the company's franchise should be sold together, and that the deed should be a specific lien thereon, to the extent of the value of the machinery, except as to the claim of certain heirs having an interest in the land.
5. Though a day was set for all creditors of the company to come in and exhibit their claims, the court could, in its discretion, allow further time, or permit creditors to prove their claims after such time, on showing reasons for failure to come in within the time fixed.
ACTION, tried before Hoke, J., and a jury, at the Fall Term, 1893, of VANCE.
(184) T. M. Pittman and W. B. Shaw for plaintiff.
J. H. Bridgers for the Henderson Water Supply Company.
Upon the trial the Deane Steam Pump Company offered in evidence the deed of trust from Woltman, Keith Co. to W. H. S. Burgwyn. Its admission was objected to on the ground that the probate was insufficient, in that it does not show that the deed was executed by a member of the firm, and because it was executed in the firm name with a seal. The objection was overruled, and the appellant excepted.
The first ground of exception is untenable. By statute in this State the powers of notaries public have been extended beyond those which were incident to the office by the universal law-merchant, and pertained to the presentment of bills of exchange for acceptance or payment and the protest thereof for nonpayment or refusal to accept; they may now take and certify the acknowledgment or proof of powers of attorney, mortgages, deeds and other instruments of writing, etc. The Code, secs. 3307, 258; act 1891, ch. 140. The protest of a notary establishes the facts stated in it in respect to each and all of these points to the full extent the notary could do it if he were examined as a witness and were believed. This was for convenience of commerce and to dispense with the necessity of bringing witnesses from a distance or of taking depositions to prove the facts certified to in the protest, the certificate being prima facie true. Elliott v. White, 51 N.C. 98. With the extension of the powers of notaries to take probate of deeds, the same quality attaches to their certificates of probate or acknowledgment; it is prima facie evidence of the truth of its pertinent recitals.
The second ground of exception to the admission of the deed in evidence was that it was executed in the firm name with a seal, the (185) contention of appellant's counsel being that there is no evidence as to which of the parties signed the paper, and hence it cannot be treated as the act of a single member and the simple contract of the firm; and if not a simple contract, then it must be a nullity. It is a general rule that one partner may bind his copartner by a contract in the name of the firm within the scope of the firm business, and it is also a general rule that a partner cannot bind his copartner by deed without express authority. 1 Parson Con., sec. 12. It will not be necessary to advert to the exceptions to and refinements upon these rules.
A seal is not necessary to the due execution of a mortgage of personal property. The property will pass by the conveyance made by one partner in the name of the firm where the conveyance is made in trust to secure the payment by the firm of the purchase-price of the articles so conveyed, this being clearly within the scope of the partnership business. For the general doctrine see Jones Chattel Mortgage, 46.
"As a mortgage of personal property need not be under seal, and as a mortgage of such property of a firm made by one of the partners to secure a debt of the firm is valid, the addition by him of a seal does not vitiate it." Herman Chattel Mort., sec. 118. The rule that an agent cannot bind his principal by a sealed contract, without authority under seal to do so, applies to such transactions wherein a seal is indispensable; but in the present case the seal was of no importance and the affixing of the same did not invalidate the conveyance. Sweelzer v. Mead, 5 Mich. 107; Milton v. Mosher, 7 Metc., 244. This seems to be the doctrine as laid down in the text-books and in some other States.
It has been held in this Court ( Burwell v. Linthicum, 100 N.C. 145) that where a contract entered into by an individual and a copartnership is reduced to wiring and signed and sealed by (186) the individual, and the firm name is signed and a seal put after it by a member of the firm, the instrument is the covenant of the individual and the simple contract of the firm. Chief Justice Smith, in a learned opinion, reviewing the authorities, says: "The agreement shows clearly that the partnership and not an individual member was intended to be bound, and it was at most, if effectual at all, a parol contract with the firm." The older decisions in North Carolina which held to a stricter rule were applied to cases under the old practice where there were different forms of actions, and the question generally was whether an action of debt would lie, or it should have been brought in assumpsit. Fronabarger v. Henry, 51 N.C. 548; Fisher v. Pender, 52 N.C. 483. These distinctions having been abolished, we see no good reason why the defendants, Woltman, Keith Co., and all claiming under them, should not be bound by the contract which one partner had a right to make, though not by deed.
The second, third and fourth exceptions, all turning upon the question whether the property sought to be recovered by the Deane Pump Company is fixtures, are rendered immaterial by the view taken by his Honor, in which we concur, that public necessity required that the plant and franchise of the water supply company should be sold together, and that the deed of trust, as it is called, of the Deane Pump Company should be a specific lien upon the property and franchise of the water supply company to the extent of the present value of the machinery sued for, except as to the claim of the Fox heirs — no exception being taken thereto by the Deane Pump Company.
The fifth exception is not tenable. Although a day was set for all creditors to come in and exhibit their claims it was entirely (187) within the discretion of the presiding judge to allow further time or to permit creditors to prove their claims upon proper representations to him of reasons why such creditors had not come in before the prescribed day. It abundantly appears in this case that the property sought to be recovered was sold to Woltman, Keith Co. for use in the waterworks system of Henderson, and passed into the possession of the water supply company, and thence into the hands of the receiver; that it is an important and indispensable part of the water supply plant, and that the public interest will not permit it to be taken away; and it further appears that the Deane Pump Company has never been paid for the said machinery. The law would be weak indeed if it were unable to afford such relief as the seller is entitled to have, and we think his Honor in his judgment has found a just and equitable solution.
No error.
Cited: Wester v. Bailey, 118 N.C. 194; Cowan v. Cunningham, 146 N.C. 454; Odom v. Clark, ib., 550; Stove Co. v. McLamb, 153 N.C. 383; West v. Laughinghouse, 174 N.C. 219.