rect mode of enforcing the affirmative provisions of such contract, although such an injunction may often fall short of accomplishing its object."

PARTNERSHIPS-JUDGMENT BY CONFESSION— COLLATERAL ATTACK.-In Geo. W. McAlpin Co. v. Finsterwald, 49 N. E. Rep. 784, the Supreme Court of Ohio considered the controverted question as to the validity of confession of judgment by a partnership executed by one partner only, the conclusion of the court being that "where, in good faith and for a firm debt. a judgment has been rendered against the firm, by confession, on a warrant of attorney executed in its name and on its behalf by one partner only, without the assent of his co-partner, such judgment cannot be impeached or set aside by a creditor of the firm." The following is from the opinion of the court: "Many cases are found which assert the doctrine that, under ordinary circumstances, one partner has no implied authority to bind his firm in this respect, and that his co-partners may obtain relief from judgments thus obtained against the firm. Parsons, in his book on the Law of Partnership (section 125), states the rule as follows: The same principles of the common law which operate to disable a partner from binding his co partners by specialty, it would seem, still more completely incapacitate him to bind them, without their distinct consent, by a voluntary confession. A fortiori, he cannot, by virtue of his implied power, authorize another to do it, as by giving a warrant of attorney for that purpose, even if the authority be not under seal.' In support of this principle the author cites numerous decisions, from the courts of England and America. Green v. Beals, 2 Caines, 254; Crane v. French, 1 Wend. 311; Grazebrook v. McCreedie, 9 Wend. 437; Waring v. Robinson, 1 Hoff. Ch. 524; Gerard v. Basse, 1 Dall. 119; McKee v. Bank. 7 Ohio, 522; Remington v. Cummings, 5 Wis. 138; Hull v. Garner, 31 Miss. 145; Lagow v. Patterson, 1 Blackf. 252: Sloo v. Bank. 2 II. 428; Harper v. Fox, 7 Watts & S. 142; Bitzer v. Shunk, 1 Watts & S. 340; Cash v. Tozer, Id. 519; Bennett v. Marshall, 2 Miles, 433; Grier v. Hood, 25 Pa. St. 430; Morgan v. Richardson, 16 Mo. 409; Binney v. Le Gal, 19 Barb. 592; Hambidge v. De La Crouee, 3 C. B. 744; Brutton v.. Burton, 1 Chit. 707; Kinnersley v. Mussen, 5 Taunt. 264; Soper v. Fry, 37 Mich. 236; Ellis v. Ellis, 47 N. J. Law, 69; Terra Cotta Co. v. Wood, 124 Pa. St. 367, 17 Atl. Rep. 4; McCleery v. Thompson, 130 Pa. St. 443, 18 Atl. Rep. 735. These cases go very far toward establishing the general doctrine that one partner has no implied authority to bind his co-partner by a warrant to confess judgment, and that, if he 'attempts to do so, relief against the judgment will be granted to the non-assenting partner, upon his own application, made in the action to the court that rendered the judgment; but they afford very little aid in determining whether, upon that ground, he can attack the judgment collaterally, or whether the creditors of the firm, upon that

ground alone, can attack it at all. Nor do these cases necessarily deny that a power of the character under consideration may not be inferred from the circumstances under which a managing partner of a concern has exercised it.

"Counsel for defendants in error have cited many other cases bearing on this question of implied authority. Hopper v. Lucas. 84 Ind. 44; Rathbone v. Drakeford, 6 Bing. 375; Christy v. Sherman, 10 Iowa, 535; Edwards v. Pitzer. 12 Iowa. 607; Everson v. Gehrman, 1 Abb. Prac. 167; Shedd v. Bank, 32 Vt. 709; York Bank's Appeal, 36 Pa. St. 458; Mills v. Dickson, 6 Rich. Law, 487; Richardson v. Fuller, 2 Or. 179; Elliott v. Holbrook, 33 Ala. 659; Tripp v. Saunders, 59 How. Prac. 379; Hall v. Lanning. 91 U. S. 160; Haddock v. Crocheron, 32 Tex. 276; Smith v. Shelden, 35 Mich. 42. An examination of these cases discloses that most of them, while denying in general terms the implied authority of one partner to bind his co-partners by a warrant of attorney to confess judgment, yet do not bear very materially on the question of the right of 'creditors of a firm to impeach the validity of a judgment confessed by virtue of a warrant of attorney so executed. The question of the

right of one judgment creditor of a firm to impeach, collaterally or at all, a judgment rendered against the firm in favor of another firm creditor. upon a warrant of attorney executed in the name and on behalf of the firm by one partner only, is before us for the first time. If the judgment was absolutely void, doubtless, it could be assailed whenever or wherever it should be found, and by whomsoever it might affect. If only voidable. and free from any taint of fraud, it would seem. both on principle and authority, that it could be impeached only by an application addressed to the court in which it was rendered, and by the non-assenting partner himself. None of the large number of cases cited by defendants in error go to the extent of expressly holding that a judgment confessed against a firm on a warrant of attorney executed by one partner is void as to the partnership property, most of them simply holding that a judgment thus confessed would be set aside on the motion of the non-assenting partner; and in a considerable number of those cases. fraud and collusion between the creditor and confessing partner, or a mistake as to the amount due, was alleged as additional ground for relief. and was the real basis on which it was made to The Supreme Court of Pennsylvania, in a number of cases, has sustained the validity of judgments thus recovered as against the property of the partnership, though liable to be impeached by the non-assenting partner in respect of its operation on his separate property. Ross v. Howell, 84 Pa. St. 129; Boyd v. Thompson, 153 Pa. St. 78, 25 Atl. Rep. 769. The Ohio cases do not combat this view of the subject. True. they do not directly speak to it, but, in so far as they go, their utterances are in harmony with this doctrine. Matthews' Lessee v. Thompson, 3

rest.

Ohio. 272; Douglas v. McCoy, 5 Ohio, 522; Critchfield v. Porter, 3 Ohio, 518-522; Huntington v. Finch, 3 Ohio St. 445; Martin v. Trustees, 13 Ohio, 250. This court recently has had occasion to consider the authority of one partner, in the absence of a co-partner, over the affairs of the concern, in a connection bearing some analogy to the question under discussion. In Holland v. Drake, 29 Ohio St. 441, this court held that one of the members of an insolvent firm cannot, either before or after disolution of the partnership, make a valid assignment of all its effects for the benefit of creditors, against the will of a co-partner, or without his assent, when he is present or accessible.' This principle, respecting the rights of a partner who is present or accessible, was recognized and approved by this court in McGrath v. Cowen (decided at the present term of this court) 49 N. E. Rep. 338. Notwithstanding the recognition of this principle in those cases, this court held, in the case of H. B. Clafflin Co. v. Evans. 55 Ohio St. 183, 45 N. E. Rep. 3, that a managing partner. intrusted with the sole charge of the business and effects of a firm, may, in case of its insolvency, make a valid assignment of its property for the benefit of its creditors, without having obtained the consent of a co-partner who is a nonresident of the State where the business is carried on. The assent of the absent partner in such case will be presumed.'

These cases clearly illustrate the difference between the power of one partner to act for the firm, and to bind it by his action in its behalf, where his co-partner is accessible to consultation, and his power in that respect where the latter cannot be consulted, owing to his prolonged absence from the State where the business is conducted. This difference, doubtless, rests on the presumed assent of the absent partner to whatever action the resident and managing partner should take, if such action, under the pressure of emergencies that arise in the course of the firm's business, was usual or reasonable, or such as might fairly be anticipated by the absent partner as probable under the circumstances. If, when applied to cases where one member of the firm has executed a power of attorney in the name of the firm to confess judgment against it, these considerations should be accorded the same weight that has been given to them by this court in respect to the power of one partner to make a general assignment of the firm's property for the benefit of creditors, we might pause before declaring that the assent of the absent partner could not under any circumstances be presumed where, in his absence, the managing partner has signed a warrant of attorney to confess a judgment against the firm. However, if the assent of the absent partner should not be presumed, it does not necessarily follow that rights acquired under a judgment regular on its face should be swept aside or totally disregarded upon a motion to set it aside, if the judgment was founded on a just claim against the firm and represented the sum actually

due to the creditors."

THE

MORTGAGOR'S RIGHTS AS AGAINST THE MORTGAGEE IN POSSESSION AFTER DEFAULT.

A mortgagor cannot maintain ejectment against a mortgagee or his assigns in possession, so long as there is a question whether the mortgage debt has been paid in full or remains an account to be settled between the parties. This proposition has been established by a long line of decisions, running through the reports, in nearly every State in the Union. The same rule has also been established in England. The mortgagor's only remedy is by a bill to redeem. The technical reason for this rule passed away with the introduction of the modern theory of the relationship existing between the mortgagor and mortgagee. The reasons, however, sounding in justice and equity, which, in theory at least, are the foundation of all law, are as clear and convincing to-day as ever. Briefly stated, they are as follows: Whenever a mortgagor seeks a remedy against his mortgagee, which appears to the court to be inequitable, whether it be to cancel the mortgage as a cloud upon his title or to enjoin a sale under a power given in the mortgage, or to recover possession of the mortgaged premises from the mortgagee, the court should deny him the relief he seeks, except upon the condition

1 Randall v. Rabb, 2 Abb. Pr. 307; Edwards v. Insurance Co., 21 Wend. 467; Dodge v. Wellman, 43 How. (N. Y.) 427; Sahler v. Singer, 44 Barb. 606; Smith v. Gardner, 42 Barb. 356; Jackson v. Robins, 16 Johns. (N. Y.) 576; Denn v. Wright, 7 N. J. L. 175; Nagel v. Macey, 9 Cal. 426; Bristow v. Peggs, 4 Dougl. 309, 1 T. R. 760 n.; Edwards v. Bailey, Cowp. 601; Sedgwick & Wait on Trial of Title to Land, 112; Jones on Mortgages, Sec. 674; Boone on Mortgages, Sec. 118; 3 Wait's Actions and Defenses, 67, 20 Am. & Eng. Ency, of Law, 622; Green v. Dixon, 9 Wis. 533; Collins v. Riggs, 14 Wall. 493; Baker v. Pierson, 6 Mich. 522; Powers v. Golden Lumber Co., 43 Mich. 468; Hosford v. Johnson, 74 Ind. 479; Knowles v. Rablin, 20 Iowa, 101; Johnson v. Harmon, 19 Iowa, 56; Stoddard v. Forbes, 18 Iowa, 296 300; Martin v. Fridley, 23 Minn. 13; Bradley v. Snyder, 14 Ill. 263; Wright v. Ross, 36 Cal. 434; White v. Hampton, 13 Iowa, 259 264; Duval Heirs v. McCloskey, 1 Ala. 708; Reading v. Waterman, 46 Mich. 104; Yale v. Stevenson, 58 Mich. 537; Damon v. Dures, 66 Mich. 347; Jackson v. Magruder, 51 Mo. 55; Grayson v. Weddle, 67 Mo. 590; Howard v. Thornton, 50 Mo. 291; Hubbell v. Vaughn, 42 Mo. 138; Moreau v. Detchemendy, 41 Mo. 431; Townsend v. Thompson, 18 N. Y. Sup. 870; Meyer v. Campbell, 12 Mo. 603.

2 Stephen, Nisi Prius, 2, pp. 13, 75; Doe v. Barton, Ad. & Ell. 11, 315, 5 Bean, 427, 4 Dougl. 409; Mariot v. Edwards, 25 Eng. Common Law Rep 397; 1 Chitty's Pl. 189.

that he shall do that which is consonant with equity. In short, the court should require him to be honest enough to pay the debt before depriving the mortgagee of his security. It is the policy of the law to avoid the multiplication of suits, and the expense and annoyance incident thereto. Hence, it will not permit the mortgagor to recover possession of the mortgaged premises from the mortgagee in possession after default, and thus make necessary the institution of foreclosure proceedings by the mortgagee. It aims to settle the rights of all parties, in the suit by the mortgagor to redeem. Neither can the mortgagor recover possession of the mortgaged premises from the purchaser at an irregular foreclosure sale without offering to redeem, for an irregular judicial sale made at the instance of the mortgagee, though no bar to the mortgagor's equity of redemption, passes to the purchaser at such sale all the rights of the mortgagee as such. The purchaser is in the position of a mortgagee in possession after default, and the mortgagor's only remedy is to redeem. It would, indeed, be most unconscionable to permit a debtor to recover back his property because the sale was irregular and yet allow him to profit by that irregular sale to discharge his debt. Even after the debt is barred by the statute of limitations, the debtor cannot oust the mortgagee in possession. This is upon the same principle which entitles the pledgee of personal property, given as security for a debt, to retain the same until the payment of the debt, even though the statute of limitations has barred all right of action to recover the debt. As said in Spect v. Spect, post: "The debt is not satisfied or paid by mere lapse of time. The statute of limitations is a bar to the remedy only, and does not extinguish, or even impair, the obligations of the debtor. It is available in a judicial proceeding only as a defense, and can never be asserted as a cause of action in his behalf, or for conferring upon him a cause of action." The respective rights of the mortgagor and mortgagee became, at an early period in the history of a number of the States, a question of considerable importance. Their constitutions made a freehold qualification indispensable to the right of an inhabitant to exercise the elective franchise. There arose, as a result of this

3 Brobst v. Brock, 10 Wall. 519.

requirement, not a little litigation, as it be came a matter of moment to the mortgagor and mortgagee, as well as of interest to the public to know which of the two was a freeholder and entitled to vote. The legislature of New York, in February, 1787, enacted "that every mortgagor, while he continued in the occupation of the premises mortgaged, and every mortgagee of real estate to him and to his heirs, after he obtains possession of the mortgaged premises, shall be deemed a freeholder, and have the right to vote at any election in the State." Waters v. Stewart. the earliest reported case in the New York courts on the subject, in 1804, decided, in effect, that the legal title to mortgaged prem ises after condition broken became vested in the mortgagee in possession. The case of Van Duyne v. Thayer," was an action of ejectment for dower by the widow of the mortgagor, the mortgagee being in possession, and Nelson, J., delivering the opinion of the court, held "that, although a widow was entitled to dower, in what is sometimes called the equity of redemption, upon the ground that until foreclosure or entry the mortgagor holds the legal title, that he is not so regarded as to the mortgagee in possession, or those claiming under him after forfeiture." He held that the mortgagees could defend themselves, if in possession under the mortgage, and that the action of ejectment could not be maintained. In Fife v. Riley,' ejectment was brought by Fife (whose title was derived from Burke, mortgagor of the premises sought to be recovered) against Riley, the asssignee of the mortgagee in possession, and a recovery was insisted upon, on the ground that the revised statutes having abolished the right of the mortgagee to bring ejectment for the recovery of the mortgaged premises until after foreclosure, the mortgagee or his assignee could not avail himself of the mortgage as a title to bar a recovery. The opinion of the court was delivered by Savage, C. J., who,

41 Caine's Cases in Error, 47.

5 In support of the same proposition, see Jackson v. Willard, 4 Johns. 42, decided in 1849; Runyan Mersereau, 11 Johns. 534. If, as these cases decided, the legal title vested in the mortgagee in possession after condition broken, an action of ejectment could not be sustained by the mortgagor until the mortgagee had, in some appropriate manner, been divested of his legal title.

14 Wend. 233. 7 15 Wend. 248.

in answer to the ground taken, said: "The cases deciding that a mortgagee might protect his possession by means of his mortgage, do not give as a reason that the mortgagee might recover possession in an action of ejectment; nor do the revised statutes necessarily alter the case as to the interest vested in the parties by the mortgage," and "that the legislature did not intend to give an exposition of the rights of the mortgagor and mortgagee any further than as to the particular remedy of obtaining possession of the mortgaged premises." And referring to Waters v. Stewart and Jackson v. Willard, supra, said: "It cannot be denied that the mortgagee has an interest in the mortgaged premises, and that interest, after forfeiture, is a legal interest, which will protect him in possession of the mortgaged premises, when legally obtained." The learned judge thereupon held the defendant was entitled to judgment.

9

The case of Van Duyne v. Thayer, was again before the supreme court in 1838,8 where it was held by the court, that if the defendant, the mortgagee, entered into possession of the mortgaged premises after condition broken, the plaintiffs, the mortgagors, had no remedy at law, and the reason assigned was, that the plaintiff's right was only in equity, where the respective rights of the parties could be adjusted Daniel, J., held, in Mickles v. Dillay, 10 that the right of a mortgagor when the mortgagee or his assigns has lawfully acquired possession, is not strictly a legal right, and in Mickles v. Townsend11 the same judge held: "That for some, and indeed for most purposes, the mortgagor is considered seized, and the mortgagee has a mere lien. Still as between mortgagor and mortgagee, the title is considered as passing by the mortgage for many purposes; before the revised statutes, the mortgagee could maintain ejectment after forfeiture, and now if he gets into possession, he may defend himself upon the title conveyed by it." The case of Hubbard v. Sibley, 12 was an action by an assignee of the mortgagor against the mortgagee in possession-who entered more than ten years prior to the commencement of the action, and was for the recovery of the mort

gaged premises. It was held that the mortgagee in possession after forfeiture, could defend his possession against ejectment brought by the mortgagor; that the title of the mortgagee under such circumstances prevails at law over that of the mortgagor; and that the latter must resort to equity for the recovery of his land. Hubbell v. Milton, 18 arose out of the same state of facts. The action was ejectment and it was held that the mortgagee in possession takes the rents, issues and profits of the mortgaged premises, and that the mortgagor's only rights are in equity. In 1801 it was held in Massachusetts, in the case of Hill v. Payson,14 that ejectment would not lie against a mortgagee in possession, even if the money was tendered; the only remedy to recover possession in such cases being petition in equity.15 In the case of Parsons v. Wells, decided in 1821,16 an action in ejectment was brought by the plaintiff, who claimed seisin and possession of two tracts of land in Needham, Norfolk County, Massachusetts. The facts were as follows: In January 1800, Ellis, who was the former owner of the premises, mortgaged a part thereof to Cabot, and in the following March mortgaged another part thereof to one James Otis, after which he made and executed two mortgage deeds, under which plaintiff claims, one dated in October, 1804, and the other in December, 1805. These mortgages to the plaintiff, included the lands mortgaged to Cabot and Otis and other lands. The Cabot and Otis mortgages were duly acknowledged and recorded previous to the execution of the mortgages to the plaintiffs, and were subsequently assigned to the occupants of the premises at the time of the action. In deciding the case, Wild, J., who delivered the opinion of the court, said: "The question now to be decided is, what is the remedy of the mortgagor after payment of the debt, if the mortgagee having entered after condition broken, refuses to relinquish possession? This court are all of the opinion that it is by a bill in equity, and that this is the only remedy. This was the doctrine held by the court in the case of Hill v. Payson, 3 Mass. 560, and it has been

13 53 N. Y. 225.

14 3 Mass. 559.

15 Perkins v. Pitts, 11 Mass. 134; Pomeroy v. Winship, 12 Mass. 514; Vose v. Handy, 2 Greenleaf, 322; Gray v. Jenks, 3 Mason, 580.

16 17 Mass. 329.

17

frequently so ruled at nisi prius." In Brown v. Smith, it was held: "That one being in possession after breach of the condition of the mortgage, the mortgagor, or any other person claiming title under him, cannot maintain a writ of entry against him." In Holt v. Rees, 18 it was held that a mortgagor cannot maintain ejectment where the title entry and ouster in the declaration are laid before the date of the éxtinguishment of the mortgage debt, and in such case the right of possession only accrued after extinguishment of the debt.19 The case of Kilgour v. Gockley, 20 was an action of ejectment brought by one, Gockley, to recover possession of certain real estate in the possession of Kilgour. Kilgour claimed possession under two mortgages given to secure two notes for $200 each, one of which notes had never been paid. The mortgages were made by Samuel Gockley, father of the plaintiff, and through whom he claimed as an heir at law, to one Gault, who subsequently assigned to defendant. The opinion was by Mr. Justice Dickey, who said: "The question is thus presented by this record whether the assignee of a mortgage after condition broken, in possession of real estate mortgaged, also being the holder of the notes secured by the mortgage and the assignee thereof, cannot defend his possession under the mortgage, against ejectment brought by the mortgagor, or those claiming under him." It was held that he could, and that the mortgagor's only remedy was in equity. In the case of Oldham v. Pfleger, the facts were these: Ejectment was brought by appellants to recover certain lands situated in Woodford county from appellee. Trial was had by the court without the intervention of a jury, and judgment was rendered for appellee. Appellants claimed as heirs at law of one Chorn, who by reason of his long absence and silence, was supposed to be dead. Chorn purchased the property in controversy from one Patton, in 1856, at the same time executing a mortgage back to Patton to secure the payment of two promissory notes due in six and eighteen months respectively. A portion of the principal of the

21

17 116 Mass. 109. 18 44 Ill. 30.

19 This case was decided on the authority of Wood

v. Martin, 11 Ill. 548.

20 83 Ill. Rep. 111.

21 84 Ill. 102.

No other pay

first note was paid in 1856. ments being made, Patton filed a bill in 1858 to foreclose the mortgage. No personal service was made on Chorn, he having abandoned the country. A decree of foreclosure and sale was rendered by the court, and pursuant thereto the lands were sold by a master in chancery to Patton, and were transferred by sundry mesne conveyances to the appellee who at the commencement of the suit had been in possession since 1869. The action was brought by appellants in 1876. They insisted that the master's deed to Patton was void and conveyed no title, because there was no notice, either actual or constructive, to Chorn of the pendency of the foreclosure suit. The court held that an action of ejectment could not be maintained by a mortgagor after condition broken, and that appellants' only remedy was by a bill to redeem.22 In Conner v. Whitmore, 28 the court held: "It has been repeatedly settled that the mortgagor cannot maintain ejectment against a mortgagee in possession. The remedy of this plaintiff, if any he have, is in equity."24 In Johnson v. Elliott, 25 it was held: "The assignee of a mortgagor cannot maintain an action of ejectment against the assignee of a mortgagee, unless the condition of the mortgage has been per formed, or the mortgage has been discharged according to its terms or the provisions of the statutes." In Wells v. Rice, 26 it was held: Upon failure to pay the mortgage debt at the time stipulated in the mortgage, the es tate of the mortgagor becomes forfeited, and ejectment cannot be maintained against the mortgagee in possession, or those holding under him, until payment of the debt." The case of Pace v. Chadderton, 27 was an action brought by Pace to recover possession of cer tain real estate in Scott county, of which he claimed to be the owner. The answer set up a mortgage given by plaintiff in 1857 to one King, the grantor of the plaintiff, and an assignment thereof to the defendant; that the mortgage had been foreclosed, and that the defendant had purchased the premises at the

22 To the same effect see Dickason v. Dawson, Ill. 53.

23 52 Me. 185.

24 Wilson v. Ring, 40 Me. 116. 25 26 N. H. 67.

26 34 Ark. 346.

27 4 Minn. 499.