Page:Federal Reporter, 1st Series, Volume 1.djvu/478

 470 FEDERAL REPORTER �Burnett & Turner were partners in the business of keep- ing a wharf-boat at Helena. The firm owned a wharf -boat, which was purehased and used for partnership purposes, and was partnership property. This wharf-boat was pur- ehased from Johnson, partially or wholly upon credit. Bur- nett, one of the partners, died before the wharf-boat was paid for, and after his death, and on the twenty-fifth day of April, 1879, Turner, as surviving memberof the firm of Bur- nett & Turner, transferred the wharf-boat, by deed of trust in the nature of a mortgage, to ïappan, to secure the pay- ment to Johnson of the balance of the purchase money. The deed of trust was duly acknowledged and recorded on the twenty-fifth of April, 1879. �On the twelfth of March, 1879, Bohler, Huse & Co. re- covered a judgment against Burnett & Turner, in the United States district court, at Helena, for |1,399.78, and costs. On the twenty-sixth day of April execution was issued on this judgment, and on the thirtieth day of the same month the writ came to the hands of the marshal, and was levied on this same wharf-boat. By agreement the boat was sold, and the proceeds paid into the registry until it should be deter- mined whether the plaintififs in the execution, or the bene- ficiary under the deed of trust, was entitled thereto. �Thwealt d Quartes, for plaintiffs, �Tappan e Horner, for defendant, �Caldwell, J. The precise question in this case, on th& agreed faets, is whether a sole surviving partner ean make a valid transfer by deed of trust in the nature of a mortgage of Personal property, belonging to the partnership, to secure the payment of a partnership debt. �During the continuance of a partnership one partner may transfer personal property by way of mortgage as security for a partnership debt. Milton v. Mosher, 7 Met. 244 ; Patch v. Wheatland, 8 Allen, 102 ; Anderson v. Tompkins, 1 Brock, (Mar- shall's Decs.) 456; Harrison v. Sterry, 5 Cranch, 289. �On the dissolution of partnership by the death of one copart- ner, the right to the possession and control of the partnership effects vests in the survivor, for the purpose of settling up the ��� �