35 Iowa 323 | Iowa | 1872
I. Our first inquiry relates to the obligation and rights of the principal and security. The law does not require the principal to institute a suit against the debtor or to pursue an action of indebtedness with diligence and to call to his aid all the remedies provided by the law. If he has brought suit, he may stop short in its prosecution before judgment, or if he has recovered judgment he may fail or refuse to sue out execution and, indeed, if execution has been issued, he may cause its return without a levy.
The case before us, if the goods seized upon the attachment were in fact the property of Murphy and not of the partnership, and the plaintiff hy his act assenting to the rendition of judgment lipón the referee’s report, caused them to be diverted from the payment of the judgment, comes within the rule just stated. By the act of the plaintiff property in its possession belonging to Murphy,
II. We are required now to determine the positions which, thus far in the consideration of the case, have been assumed.
This rule is not in conflict with that general and well-settled doctrine that partnership debts may be primarily enforced against partnership property, and is based on the 'rights of the partners, and not upon equities of the creditors. Partnership creditors have no lien upon the joint property for the payment of their claims. While the firm is in existence such property may be sold, and will be followed by no claim in law or equity of the creditors of the
The law does not provide that partnership debts may be primarily enforced against joint property of the firm in preference to individual debts of the partners on the ground of any equity held by the joint creditors. The relief is secured to the joint creditor on account of equities of the partners. They have the right to demand that the firm property shall be devoted to the payment of the partnership debts and shall be first exhausted before their individual estates be taken thereon. On account of this equity the relief just stated is granted to the creditors. Ladd v. Griswold, 4 Gilm. 25; 1 Am. Lead. Cas. (Hare & Wallace’s Notes), 469; Notes to McCulloch v. Dashiell, and Matter of Smith; Story on Part., § 358. We conclude, therefore, that the creditors of the firm of Murphy & Shat-tuck were not entitled to priority as to the goods seized in the attachment proceeding, and that the judgment of the court rendered upon the report of the referee was in conflict with the law.
III. The judgment was rendered upon the referee’s report without objection and upon the consent of the city; that is, of its attorney in the case, for whose act in this, matter the city must be held responsible. As we have seen, the judgment was unauthorized by law. It is then the case of a judgment by consent adverse to the rights and interest of the defendant. Under it certain property upon which the city had a legal hold for the satisfaction of its claim against Murphy, was discharged and thus lost to defendant. It was a voluntary relinquishment, for the judgment by consent, contrary to the rules of law and
Y. It is the rule of the authorities that when property of the principal has come under the control of the creditor either by the voluntary act of the debtor or by process sued out by the creditor, for the purpose of being applied upon the debt, a voluntary relinquishment thereof will discharge the security to cm extent corresponding with its value. Mayhew v. Cricket, 2 Swanst. 185; Commonwealth v. Vanderslice, 8 S. & B. 452; Lechtenthal v. Thompson, 13 id. 157; Commonwealth v. Hoos, 16 id. 252; Dixon et al. v. Ewing, 3 Ham. 280; The Bank of Missouri v. Matson, 24 Mo. 333; Rice v. Morton, 19 id. 263; Baker v. Briggs, 8 Peck. 122; Law v. East India Co., 4 Ves. 824; Payne
"Under the decree of the court rendered in the consolidated chancery and intervention proceedings instituted by Shattuek $723.29 was set apart for the payment of the partnership debts. This is the extent of the loss sustained by defendant. As we have just seen, he can have no claim for any loss resulting from the private sale of the goods, if any in fact did occur. The judgment in this case is for $860. That sum, less the amount set apart for the partnership creditors, is the true measure of plaintiff’s damages on the bond. The judgment of the district court will be modified accordingly and a judgment will be entered here if plaintiff so elect for the sum of $136.71 and costs of the court below. The costs of the appeal will be paid by plaintiff.
It is proper to remark that there are irreconcilable discrepancies in the abstract before us touching the amount paid to the partnership creditors. The sheriff’s return shows that $891.99 were set apart by him and paid over to the clerk for that purpose. But the decree of the court directed that the sum of $723.29 should be reserved for that purpose. It is impossible to explain this discrepancy. If we take either sum as the amount paid the firm creditors, a conflict will arise in the record. If the first named be the sum, the payment is in excess of the amount fixed by order of the court; if it be the second, a sum remains unaccounted for. But it is not our duty to attempt to harmonize evidence thát is irreconcilable. "We leave it for counsel to determine whether there be mistakes in the abstracts, and to explain these things which can only be done by reference to the original record. If the basis of
Modified and affirmed.