
    Benton v. Roberts et al.
    The more joint ownership of real estate confers no authority upon either of the joint owners to bind the other by a note.
    The joint ownership of real estate docs not create a partnership as to such real estate. A special contract in writing is necessary for that purpose. O. C. 3807.
    
      To enable one of the members of a partnership formed for the cultivation of land held by them as joint owners, to bind the other by a noto made in the partnership name, an express authorization, or one clearly to bo implied from the coarse of business of the finio, ia necessary. In the absence of such express or implied authority it is incumbent on the payee to prove that the amount of the note inured to' the benefit of the partnership.
    Where one of the members of a partnership formed for the cultivation of land held by them as joint owners, the partnership not being shown to have been such as would convert the land into partnership property, and there being no express authority to either of the partners^ bind the other by a note in the partnership name, and none implied from tho course of tho partnership business, executes a note in the partnership name, with a third person as su ■ rety, and discounts it, and applies the proceeds to tho payment of anote given for the price of the landby which the joint purchasers bound themselves in dividuallyandmsoKdo, and the note is paid by the surety, tho latter can have no recourse againstthe partner who did not sign the note. The partner by whom tho note was made was hound individually to the party by wliom the note was discounted; the application of tho proceeds made the part}'who signed the note a creditor of his copartner for half tlio amount so paid, hut did not malte the party who discounted the note a creditor of the partner who did not sign it; and when the surety paid the note he became subrogated only to the rights of tho party by whom it was discounted.
    from tire District Court of Carroll, Selby, J.
    
      Short aud Parham, for tho appellant.
    
      Bemiss, Thomas and Snyder, for tho defendant.
   The» judgment of the court was pronounced by

Séídelí-, J.

James Roberts having issued an execution on a twelve months’ b’ond given by Benton, lie obtained an injunction upon the ground that Roberts was liable to him upon a noto of $1,800, signed in tho ñamo of A. O. &y J. Rob~ erts, with Benton as surety, in favor of the Lake Washington and Deer Creek Railroad and Banking Company. It is admitted in argument that Benton has paid1 the note; and the only question isas to the alleged obligation of James Roberts to reimburse to him.

At the date of this note, James and A: C¡ Roberts, wero i'h,a owners of a tract of land in Louisiana, which they had purchased of Elliott, and for which they had given him notes, signed by them individually, and by which they bound them-' selves, in solido, for the price. After their purchase they cultivated the land in partnership. No articles of partnership arc proved, and our information with regard to its terms is meagre. The note given to the bank, and upon which Benton seeks relief, as surety against James Roberts, is signed in the partnership name; hut the signature was made by A. C. Roberts. It was discounted by tho bank, which was a corporation chartered and established in Mississippi.

The only testimony going to show what application was made of the money thus obtained, is that of Elliott, who says that, at a date shortly subsequent to the date of the note, his vendees made him a payment of $1,500 in bank notes of that bank, on account of the first note held by him for the price of the land. The--witness does not particularize whether the money was handed to him by James Roberts, or by A. C. Roberts in his presence. But, however, this may be, it is not shown that James Roberts knew the origin of the money, or was aware of, or assented to, the execution of the note. Upon the point of knowledge and implied ratification, we would not be warranted by tho evidence in reversing the opinion of the district judge, who considered those facts as not proved.

There is no evidence that, by tho terms of the planting partnership, the making of a note by A. G. Roberts in the name of the firm, was authorized. The case, therefore, rests only upon such authority as may have arisen from the relations of the parties, or such legal consequences as might result from the application of the money.

It is too clear to- require discussion that the mere joint ownership existing between A. C. and James Roberts, conferred no authority upon A. C. Roberts to bind them both by the signature of the note in question. This mere joint ownership of real estate did not even create a partnership as to that real estate. For that purpose a special contract in writing is necessary. Civil Code, 2807.

Wa3 any authority to do so derived from the existence of the partnership for the cultivation of the land, which they formed after their purchase. To enable one such partner to bind the other in the form and with the legal liability of an instrument like this, an express authoriaation, or certainly, at least, one clearly to be implied from the course of business of the firm, would have been necessary. In the absence of such express or implied authority it would be incumbent on the payee to prove that the amount of the note had enured to the benefit of the partnership, thus enforcing a liability against the partnership rather by reason of the circumstances of the case than by force of the note itself. Ve have no evidence before us to satisfy any of those requisitions. On the contrary, the plaintiff assumes that the money was applied to pay a debt which was not the debt of the partnership, for it must bo remembered that the partnership formed for the cultivation of the land is not shown to have been such as would convert the' land into partnership property. It remained, as it originally was, the property of the favo purchasers, each holding an undivided moiety. The price was due by the proprietors individually.

It remains then to’ be considered whether any legal liability of James Roberts' to Benton, as surety on the note, has arisen from the fact .that A. C. Benton applied a portion of the proceeds of its discount to the payment of the Elliott debt, for which James Roberts was bound in solido. As A. C. Roberts had no authority to bind James Roberts by the note, A. C. Roberts was bound alone and individually to the bank; and the application which he made of the proceeds of the discount to the payment of the Elliott debt made A. C. Roberts a creditor' of James for one half of the amount so paid, but did not make the bank James’ creditor, and when Benton was afterwards sued by the bank and paid the note, he became as surety, subrogated to the bank’s rights, and to nothing, more.

It is proper to add that the defence of James Roberts is strengthened by what oecured after the dissolution of the planting partnership between him and A. C. Roberts. A paper is in evidence, signed by the plaintiff and A. C. Roberts, in which they agree that certain debts due by A. O. ¿j- J. Roberts shall be borne by the plainttff and A. C. Roberts equally. Among them is stated a debt to the Princeton Bank. It is proved that there was no bank at Princeton but the one-in whose favor the note in question was drawn, and a witness who appears to have been familiar with the affairs of the parties states that, he was not aware of any other debt to that bank than the one created by the note. This evidence-was excepted to, but was, we think, admissible under the pleadings.

Judgment affirmed.-  