Iowa, 422. In the case before us, the money of the firm was used in payment of the debt of Hartness. It was in fact the transfer of money of the firm for his benefit, and is not different in its effect and nature froin a sale and transfer of firm property directly to him. It only remains for us to inquire whether the transaction was based upon a consideration. We have shown that the consideration of the transaction was Hartness remaining in the firm, instead of withdrawing his interest and applying it to the payment of his debts. The inducement to the arrangement was the expectation and belief that through it the firm would be able to pay its debts, which could not be hoped if the capital and experience of Hartness were withdrawn. We think the agreement of Hartness to continue in the firm is a sufficient consideration, and the transaction, therefore, was not voluntary. While suspicion is cast upon the good faith of the transaction by the fact of the mortgage to Burton, the assignment, and demonstration of the utter insolvency of the firm following in quick succession to the payment to the bank, yet the evidence shows that the arrangement under which Hartness continued in the firm was made about two months before the borrowing of the money and payment to the bank, which was done in pursuance of the prior agreement. The insolvency of the firm at that time is not shown.

5. The action was tried in the court below in the manner of a case in chancery, and is presented to us for a trial de novo. No question is raised by either party as to the regularity of the trials in this manner. We do not, therefore, inquire whether the proceedings as to the form of the trials were in harmony with the law.

6. The plaintiffs, in their pleadings controverting the answer of the garnishee, made certain persons who were sureties, or had executed securities, for the indebtedness of Hartness to the bank, defendants in this action, and prayed that in case the bank should be discharged as garnishee, the plaintiffs should have judgment against these persons setting aside all payments and releases of the sureties, and be substituted to all rights originally held by the creditors of Hartness under these securities. Upon the motion of these persons, based upon the ground that they could not be made defendants as new parties, and required to answer the equitable claim made by plaintiffs against them, they were discharged. The ruling of the district court, if incorrect, wrought no prejudice to plaintiffs, for the reason that, in the view we take of the case, the payment of the individual debt of Hartness to the firm was valid, being authorized by the law. This being settled by our own decision, it is plain that plaintiff could have had no remedy on account of the securities upon debts of Hartness to the bank. The payment of the debts of course released the securities, and plaintiffs can claim no right thereto. The securities could not have been enforced, for the simple reason that the debts which they follow and give them life were paid.

It is our

The foregoing discussion disposes of all questions in the case. conclusion that the judgment of the district court ought to be affirmed.

VAN STADEN and others v. KLINE and others.

Filed June 12, 1884.

1. PARTNERSHIP-EXEMPTION OF PARTNER'S PROPERTY FROM FIRM DEBTS. The debts of a copartnership may be enforced against property owned by the firm, be it real or personal, without regard to the rights and liabilities of the partners, and a partner cannot hold it exempt therefrom.

2. SAME DEATH OF PARTNER-AUTHORITY OF SURVIVOR.

When after a copartnership had become indebted one of its members died, and the surviving partner, in order to extend the time of payment of the indebtedness, as evidenced by certain notes, gave a mortgage upon the real estate of the firm to the creditors, the other assets having been exhausted, held that, although the surviving

partner had no authority to execute the mortgage, yet the widow and children of the deceased partner, who did not join in it, will not be heard to complain, as they stand in the latter's place, and that a court of equity will foreclose the mortgage. City of Maquoketa v. Willey, 35 Iowa, 323, and George v. Wamsley, ante, 1, distinguished. 3. SAME DEBTS-ASSETS.

Upon the debts of a copartnership the remaining assets are liable until all the debts are paid.

4. STATUTE OF LIMITATIONS-PROMISSORY NOTE-MORTGAGE-EXTENDING TIME.

When a cause of action upon a promissory note is barred by the statute of limitations, but within the statutory period a mortgage is given to secure them and extend the time of payment, such an extension removes the bar of the statute.

REED, J., dissenting.

Appeal from Winneshiek district court.

Action in chancery to foreclose a mortgage.

There was a decree in which

judgment was rendered against the mortgagors for the amount of the debt, and the mortgage was foreclosed as to all of the defendants, some of whom appeal. The facts of the case appear in the opinion.

Willett & Wille t, for appellants. Brown & Portman, for appellees. BECK, J. 1. The petition alleges that in 1866 a copartnership styled Kline & Johnson became indebted to plaintiffs in the sum of about $7,000, for money borrowed and personal property purchased. It is shown that Kline & Johnson were engaged in the brewery business, and the money so borrowed was used by them in payment for certain real estate devoted to the prosecution of their business, being the same property covered by the mortgage sought to be foreclosed in this action. The personal property was used in the same business. In 1871 Johnson died, and Kline continued the business as surviving partner or successor of the firm, in which he is still engaged. The real property whereon the brewery is situated, which is the property covered by the mortgage, constituted the greater part of the assets of the firm. No part of the indebtedness to plaintiffs has been paid. The widow and heirs of Johnson are made defendants, and it is shown that the widow is the executrix of his estate. In 1877 the defendant Kline, the surviving partner, for the purpose of extending time upon the notes given by the firm to plaintiffs, with his wife executed the notes and mortgage which are the foundation of this action. It is alleged that defendant Kline is insolvent, and that there are no assets of the firm of Kline & Johnson, except the real estate covered by the mortgage, out of which plaintiffs' claim can be made. Certain incumbrancers and creditors of the firm are made defendants, but no question arises in the case touching their interests. The petition prays for a foreclosure of the mortgage and for general equitable relief.

The widow and heirs of Johnson, in an answer and cross-bill, admit the copartnership existing between Kline and Johnson prior to June 12, 1871, and that the property covered by the mortgage was used in the prosecution of their business, but aver that it was owned by them, not as copartners, but tenants in common, each owning a moiety thereof. It is further shown that, on the twelfth day of June, 1871, Johnson leased to Kline his interest in the real estate and brewery property, at a stipulated rent, and that thereupon Kline went into the exclusive possession of the property, and that the copartnership was dissolved. It is alleged that no part of the rent reserved by this lease has been paid, and relief is sought against Klein in defendant's crossbill based thereon, which was allowed by the court below in the decree. As defendant Kline does not appeal, nor do the other defendants, from the decree upon their cross-bill, but only from the decree in plaintiffs' favor, and thereby complain in the court only upon the ground that the judgment in their favor was not made a lien on the property paramount to plaintiffs' mortgage, the correctness of the decree against defendant Kline in favor of the other defendants need not be considered further than to determine whether plaintiffs' mortgage is prior thereto, which will hereafter be done. The defendants

claim that the action is barred by the statute of limitations. Other allegations of the pleadings of the parties and they are numerous, running through various original pleadings and amendments thereto-need not be recited, as, in the view we take of the case, the rights of the parties are to be determined upon the issues presented in the parts of the pleadings we have recited.

It will be observed that the controlling questions of fact and law in the case involve the existence of the partnership, its ownership of the mortgaged property, the dissolution of the firm, the settlement of its affairs by Kline, the continuance of its business by Kline as a surviving partner, and the validity and effect of the mortgage in suit executed by him. We will now proceed to the determination of these questions.

2. First. The evidence, in our opinion, quite satisfactorily shows the existence of the partnership, the ownership of the mortgaged property by the firm, and that the indebtedness to plaintiff was contracted for the purchase of the property and the prosecution of the partnership business. Upon these points it can hardly be said that there is conflict of proof.

Second. The evidence tends to show that prior to his death Johnson withdrew from the partnership, and the business was afterwards prosecuted by Kline alone. But if there was no dissolution of the partnership by agreement of the parties, it was surely dissolved by the death of Johnson.

Third. The affairs of the firm were left in the hands of Kline for settlement, and for the payment of its debts. We need not, in the view we take of the case, inquire into the existence of the lease of the interest of Johnson in the brewery property by Kline, and whether, as plaintiffs claim, it was canceled upon an agreement between Kline and the executrix of Johnson's estate. Conceding the continued existence of the lease, our conclusions will not be affected thereby.

Fourth. The evidence, we think, shows that Kline held the property of the firm for the payment of its debts and the settlement of its affairs. We think this was known by all the parties interested in this appeal. So far as the interests and rights of the parties before the court upon this appeal are concerned, we need not inquire how Kline administered the affairs of the firm, what property he received, and what debts he paid. It is shown that he did not pay plaintiffs, and that the property of the firm covered by the mortgage is all the copartnership property now in existence.

Fifth. The note and mortgage in suit were executed for the identical debt contracted by the firm, and were intended to extend the time and secure the payment thereof.

From the foregoing statements of facts we have this case: Kline, as a surviving partner, and the successor to the business of the firm, held possession of the real estate in question, and other property of the firm, for the purpose of the payment of its debts. All of the firm property, except the real estate in question, is exhausted in some way, it matters not what, and plaintiffs' claim against the copartnership is unpaid. Kline, therefore, executes the mortgage in suit to secure plaintiffs' claim. The title to the property is in both Kline and Johnson. We are to determine whether the debt secured by this mortgage can be enforced against the widow and heirs of Johnson as paramount to any interest they hold in the property.

3. The defendants, the widow and heirs of Johnson, stand in his shoes, and possess no other or different rights than he would hold were he before this court resisting the enforcement of the mortgage. A few familiar principles of the law will direct us to the first determination of the case.

4. The debts of a copartnership may be enforced against property owned by the firm. Whether the property be real or personal, it is subject to the debts of the firm, and a partner cannot hold it exempt therefrom. And this is so, without regard to the rights and liabilities existing between the partThe possession of the property, whether it be in the hands of one part

ners.

ner or the other, and without regard to their dealings with the firm or with one another, does not limit or affect the rights of a creditor of the firm to subject the property to his claim.

In this action, plaintiffs, alleging and proving that they hold a claim against the firm of Kline & Johnson, to secure which Kline executed a mortgage upon real estate of the firm, the title to which was in him and Johnson, prays that the mortgage be foreclosed as against Kline and the heirs of Johnson, and also for general equitable relief. Under the rules of the law, the whole property is subject to their debt, as against the widow and heirs of Johnson, who can make no resistance to plaintiff's claim which would be forbidden to him were he alive and a party to the suit. Now let it be admitted, for the purposes of the case, that Kline had no power and authority under the law to bind Johnson's moiety of the real estate by the mortgage, and that the mortgage as to it is void, yet equity will enforce the debt of plaintiffs against the interest held under the conveyance to Johnson, for the reasons that the real estate is firm property and plaintiff's debt is against the copartnership, and defendant Kline has made an effort to devote the property to the payment of the firm debts, and must be understood as demanding it. The prayer of the petition is broad enough to cover relief based upon this ground, and the decree of the district court properly grants it, as required by the doctrines of equity and the rules of the law. There are no creditors or others, save the widow and heirs of Johnson, objecting to the decree. It must therefore stand as against all the parties to the suit. The facts of this case distinguish it from City of Maquoketa v. Willey, 35 Iowa, 323, wherein the contest was between one of the partners and a creditor of another partner who had received the property through the distribution of assets upon the dissolution of the firm. It is also distinguishable by like facts from George v. Wamsley, ante, 1.

5. Counsel for defendants insist that the note originally executed by Kline & Johnson for plaintiffs' debt was paid by the note in suit, and, indeed, by a prior note and mortgage executed by Kline, the executrix of the estate of Johnson. But the positive evidence of plaintiffs and others, and certain circumstances which we need not repeat, convince us that the note and mortgage upon which this action is based was not intended and cannot be regarded as payment of the prior notes. The same may be said of the former note and mortgage first referred to by us.

6. If we rightly understand counsel for defendants, they insist that the foreclosure of the mortgage in suit against Kline is the ground of defense in favor of defendants. This action, in the shape it is presented to us, (defendants, the widow and heirs of Johnson, alone appealing,) involves simply their right to hold the property of the firm as against its creditors. Whatever remedies were pursued against Kline, if they stop short of the full satisfaction of the debt, cannot be the ground for holding the firm property exempt from whatever sum remains unpaid. The law devotes all of the firm property to the payment of the partnership debts, and though it be taken by piecemeal, or by separate actions against individual members of the firm. Upon the debts of the copartnership, whatever remains is liable until all the debts are paid. 7. The statute of limitations will not avail defendants, for the reason that, as we have shown, the debt was removed from the bar by the extensions of time and renewals of the notes in the manner we have indicated. The long time the debt was permitted to run without enforced payment is explained by the fact that plaintiff Kline, defendant Kline, and the widow of Johnson are brothers and sister. For this reason plaintiffs extended indulgence to the debtors.

8. Defendants' counsel, in their argument, insist that judgment upon the cross-bill against defendant Kline should have been for a sum greater than was found due by the court below. As defendants have not appealed from the decree granting them relief upon the cross-bill, serving no notice of ap

peal on defendant Kline, and as he has not appealed, we cannot review the judgment of the court against him.

The foregoing discussion disposes of the controlling questions in the case. In our opinion the decree of the district court ought to be affirmed.

REED, J., dissenting.

INTOXICATING LIQUORS-CODE,

Fox v. WUNDERLICH.

Filed June 12, 1884.

1557-ACTION FOR DAMAGES-EXEMPLARY DAMAGES. Under the operation of section 1557, Iowa Code, which makes the selling of intoxicating liquors a penal offense, exemplary damages may be assessed in any case arising out of a willful violation of the law, whereby there has resulted to the plaintiff an injury for which the statute gives the right of action.

Appeal from Buchanan district court.

Action for damages on account of the unlawful sale by defendant of intoxicating liquors to plaintiff's husband, which caused his intoxication, whereby she was injured in her means of support. There was a verdict and judgment for plaintiff, and defendant appeals.

Fouke & Lyon, for appellant. S. P. Adams, for appellee.

REED, J. 1. It is alleged in the petition that plaintiff's husband is a mechanic, capable of earning in his business from $2.50 to $3.50 per day, and that his earnings were plaintiff's only means of support; that during the two years preceding the institution of the suit his services were constantly in demand, and when he was not under the influence of liquors he was constantly employed; but that during said period he was in the habit of becoming intoxicated, and while so intoxicated he neglected his business, and wholly failed to provide means for plaintiff's support; and on one occasion, while so intoxicated, he wandered away from his home and remained absent for a long period of time, during which he contributed nothing to her support; and that his intoxication during said period was caused by intoxicating liquors sold him by defendant. The answer is a general denial of these allegations.

On the trial plaintiff offered evidence tending to prove that during the period mentioned in the petition her husband was in the habit of becoming intoxicated, and that his intoxication was caused, in part at least, by intoxicating liquors--beer and whisky-sold him by defendant; and that when so intoxicated he neglected his business, and at one time abandoned his family for the period of about a month, during which time he contributed nothing to plaintiff's support. When being examined as a witness in her own behalf, plaintiff testified that during the period of her husband's absence she supported herself in part by her own labor, and that she received some aid from the county. Defendant moved the court to exclude this evidence from the jury, on the ground of incompetency and immateriality, but this motion was overruled. Defendant also asked the court to instruct the jury that plaintiff was not entitled to recover damages for loss of social standing, or for wounded feelings, occasioned by her husband's habits of intoxication. But the court refused to give this instruction. These rulings constitute the ground of the first assignment of error argued by counsel. Their position is that plaintiff's right to recover is based on the loss of support from her husband, and it is immaterial from what source she derived her support during the period in question, if it did not come from him, and that the evidence should have been excluded for that reason; or, if the evidence was competent for any purpose, as it showed she had been placed in the humiliating position of being compelled to apply to the public for assistance, and as this afforded her no ground of relief against the defendant, the instruction asked should have