London, Paris, & Am. Bank, Ltd. v. Smith

Citations

• 101 Cal. 415
• 35 P. 1027
• 1894 Cal. LEXIS 1050

Syllabus

<p>Partnership—Mortgage by Deceased Partner—Suretyship—Surviving Partner.—An action will lie against the executrix and heirs of a deceased partner, to foreclose a mortgage made by the deceased partner upon his individual real estate, as surety for the firm, to secure all sums of money then or thereafter becoming due from the firm to the mortgagee, without first exhausting the liability of the surviving partner.</p> <p>Id.—Separate Suit Against Surety.—A surety may be sued separately, and the creditor is not required first to proceed against or exhaust his remedies against the principal debtor, unless some special circumstance requires a departure from the general rule as to necessary parties.</p> <p>Id.—Parties—Surviving Partner.—The surviving partner is a proper party to an action to foreclose a mortgage made by a deceased partner of his individual property to secure the firm indebtedness, but is not a necessary or indispensable party thereto, and need not be made a party where the pleadings admit the nonresidence of the surviving partner, and that there are no assets of the partnership within the state where the mortgage is foreclosed.</p>