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Bole et al. v. Newberger.

that an execution plaintiff, who purchases at his own sale, is chargeable with notice of all irregularities. In Meredith v. Chancey, 59 Ind. 466, WORDEN, J., delivering the opinion of the court, said: “But it has long been settled in this State, that the plaintiff in an execution, purchasing the property at sheriff's sale, is chargeable with notice of all irregularities.” Sharpe v. Davis, 76 Ind. 17; Stotsenburg v. Same, 75 Ind. 538; Piel v. Brayer, 30 Ind. 332; Hamilton v. Burch, 28 Ind. 233; Keen v. Preston, 24 Ind. 395; Raub v. Heath, 8 Blackf. 575; Harrison v. Doe, 2 Blackf. 1. The appellee was bound to know, and in contemplation of law did know, that the sheriff had no right to sell more than sixty acres. As the appellee, with full knowledge of all the facts, voluntarily placed himself in the position from which he now asks the court to extricate him, it is very doubtful whether he has made any case entitling him to relief. But we do not deem it necessary to place our decision upon the complaint, for the counter-claim of the appellants exhibits the case more fully than the complaint. This pleading admits the allegations of the complaint concerning the foreclosure suit and decree, avers that the one-hundred-acre tract was advertised and sold, that the appellees bid therefor the full amount of his mortgage, including principal, interest, and costs, and that he received a deed for one hundred acres, when he was entitled to a conveyance for only sixty acres. The prayer is that the appellee be decreed to be the owner of sixty acres, and that the remaining forty acres be declared free from the lien of said judgment and mortgage. We think that the counterclaim concedes to the appellee full as much, and perhaps more, than he is entitled to receive. If he can, as the counter-claim tenders him, secure title to sixty acres of land, he is receiving as much as by any possibility he can legally or rightfully obtain. With this he ought to be content. As the counterclaim expressly offers the appellee the sixty acres, the court may well adjudge it to him without stopping to enquire how

Lewis et al. v. Harrison et al.

it would be if the appellant were resisting his right to any of the land.

Judgment reversed, with instructions to overrule the demurrer to the appellant's counter claim, and for further proceedings in accordance with this opinion.

No. 7407.

LEWIS ET AL. v. HARRISON ET AL.

PARTNERSHIP.-Chaltel Mortgage.Lien.– Principal and Surety.—Where, by

the contract of copartnership, it is stipulated that one partner shall hold a lien upon the property of the firm, as indemnity for any liability he may incur as surety for the other, and afterwards the other partner mortgages his interest in the partnership property to a third person, without notice of this stipulation, the mortgage will be postponed in favor of the lien created by the stipulation, the mortgagee being charged with notice of the latter. Woods, J., dissents. From the Morgan Circuit Court.

W. S. Shirley, J. V. Mitchell, T. A. Hendricks, C. Baker, O. B. Hord and A. W. Hendricks, for appellants.

J. H. Jordan, W. R. Harrison and W. E. McCord, for appellees.

NIBLACK, J.—The complaint in this case was by James A. Lewis, Perry F. Douglass and Calvin F.Sims, against Henry Sims and Felix A. Rinehart, upon two chattel mortgages, executed by Rinehart to the plaintiffs upon his interest in certain partnership property, owned and held by the said Rinehart and Henry Sims, as partners in the business of farming, to secure the plaintiffs as the endorsers and sureties upon a bill of exchange held by Samuel M. Mitchell, on which Rinehart was principal, alleging that the plaintiffs had been compelled to pay the bill of exchange; that Rinehart had no other

Lewis et al. v. Harrison et al.

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property than that so mortgaged by him, and praying a settlement of the partnership business, and a foreclosure of the mortgages on Rinehart's separate interest in the partnership property.

Rinehart made default. The defendant Sims answered in general denial, and by way of cross complaint claimed a lien upon Rinehart's interest in the partnership property to secure him in money loaned to Rinehart on partnership account, and the individual account of the said Rinehart; also to secure him as surety on a bill in bank, the private debt of Rinehart, which lien the said defendant Sims averred was reserved to him by the articles of partnership between him and Rinehart.

The defendant Sims, after filing his answer and cross complaint, died, and William R. Harrison, having been appointed administrator of his estate, was substituted as defendant in his stead.

Issue being joined, the cause was submitted to the court for trial, and, at the request of the plaintiff, the court made a special finding of the facts, which may be summarized as follows:

That on the 1st day of February, 1864, Henry Sims and Felix A. Rinehart entered into partnership in the business of farming, for the period of one year, for the purpose of having farmed, for their joint benefit, a certain farm belonging to the said Henry Sims, known as the Jackson farm, and situate near Martinsville, Indiana, the said Sims to furnish the farm, and the said Rinehart the labor, and the proceeds to be divided equally, in accordance with written articles of partnership mutually signed by the parties; that on the same day Rinehart executed to the said Henry Sims a mortgage on his interest in certain personal property then on the Jackson farm and belonging to him and the said Sims as partners, as above stated, to secure the payment of a note of even date and payable one year after date, for $265.26, which mortgage was duly recorded on the next day after its execution ; that said mortgage has since been fully satisfied and discharged; that,

Lewis et al. r. Harrison et al.

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during the progress of the partnership, entered into as above, to wit, some time in the year 1866, Rinehart became indebted to the First National Bank of Martinsville, upon his private account, and made a note to such bank for such indebtedness, with the defendant Sims as his surety; that all the stock, implements and other personal property used in carrying on their partnership business, were owned and held by the defendants Sims and Rinehart equally; that they also owned and held all the stock raised on, and the products of, the farm equally; that their partnership business was continued and carried on under their articles of partnership, herein above referred to, until the 16th day of August, 1871, when a new agreement in writing, concerning such partnership, covering the period of one year, was mutually executed by them, by which the partnership was extended to, and made to embrace, another farm, known as the Holbrook farm ; that, by this new agreement, the defendant Sims was described as the party of the first part, and the said Rinehart as the party of the second part, it being stipulated therein that Rinehart was to do all the work, and to make all necessary repairs, on both farms, such repairs to be made under the direction, and with the consent, of the said Sims, and to extend to the farming implements and everything else used by the firm, and that Rinehart was not to cut any timber, nor to sell or otherwise dispose of any stock, grain or other property, on either of said farms, without the sanction of the said Sims; that this new agreement concluded as follows: “The party of the first part to hold and have a lien on all property now belonging to said firm, until the operation of the year is settled up between the said Sims and Rinehart, consisting of stock, corn, implements and everything else on said farm, to secure the said Sims for money advanced and endorsing bank notes, etc., or any other liability ;” that afterwards it was mutually agreed that this new contract of partnership should run for an indefinite period of time; that the increased assets of the firm, under the new contract of

Lewis et al. t. Harrison et al.

partnership, were owned and held as before, by both partners equally; that the bank debt of Rinehart, referred to as above, had been renewed from time to time, by Rinehart, with Sims as his surety, and remained then unpaid ; that said firm carried on its farming operations under said last named articles of partnership, until the death of Sims, which took place on the 11th day of October, 1877; that said new articles of partnership were neither acknowledged nor recorded, as is provided by law for the acknowledgment and recording of mortgages, or other conveyances, nor in any other manner whatever; that since the death of Sims, to wit, in May, 1878, the said Harrison, as his administrator, was compelled to pay, and did pay, the bank debt of Rinehart, for which said Sims was surety, as above set forth, the bank having taken judgment against Sims as such surety ; that, in the execution of said new articles of partnership, it was the intention of both Rinehart and Sims that such articles should create a lien in favor of Sims on all the partnership property, to secure him in his suretyship for Rinehart on said bank debt, and that it was understood that such a lien had been created, up to and until the commencement of this action; that Rinehart has never repaid to the estate of Sims the amount of money, or any part thereof, paid by Harrison, as the administrator of such estate, in discharge of the bank debt of the said Rinehart, and that there was then due to said estate for money so paid by the said Harrison, the sum of $1,367.50; that, in carrying on the partnership business, Rinehart was compelled to employ persons to assist him in doing the work on the farms, which he had obligated himself to perform ; that he paid these persons in part by orders on merchants for goods, which were given and accepted upon his individual credit; that he also borrowed money with which he hired laborers to assist him on the farms; that in this way he became indebted to Samuel M. Mitchell in the sum of $730, about $300 of which was for goods so furnished on orders, and the rest for money borrowed; that, on the 21st day of January, 1876, Rinehart gave his in

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