70 Ala. 297 | Ala. | 1881
Certain principles affecting this case have been so often asserted, both in this and other States, that, in the absence of legislation, we do not feel at liberty to disturb them. Among the principles so settled are the following :
Finest: That under a fieri facias against the goods of one
Second,: The right acquired by such purchase, is the right of the partner whose interest was sold, and only his rights, subject to all the liens, incumbrances and disabilities, which rested upon it when owned by the execution debtor, as a member of the partnership. “ It is not a separate and exclusive right to any part or portion of it; or any right of any kind to any one part, rather than to any other part; or any other right or interest than that which all the other partners have. It must be remembered, not only that the ownership of each partner is subject to the ownership of all the others, but that all the partners together hold the property subject to the right of the partnership as a body,perse, to apply all its funds to the payment of all its debts. The real ownership of all the chattels is vested in the firm; the interest of each partner is merely a right to share in-the proceeds of those chattels, after all the partnership obligations have been satisfied. No one partner has a separate ownership of, or right to possess exclusively, any part oí- parcel of the partnership assets, and a successor to his interest by purchase at execution sale, can acquire no greater interest than he had.”—Winston v. Ewing, 1 Ala. 129; Moore v. Sample, 3 Ala. 314; Andrews v. Keith, 34 Ala. 722; Warren v. Taylor, 60 Ala. 218; Atwood v. Meredith, 37 Miss. 635; Parsons on Partship, 350 ; Story on Part. § 261; Fox’s Dig. Partnership, 122; Freeman on Executions, § 125; 1 Story Eq. Jur. § 677; Clagett v. Kilbourne, 1 Black, U. S. 346; Sutcliffe v. Dohrman, 18 Ohio, 181; Sitter v. Walker, Freem. Ch. 77; Clark v. Allee, 3 Harring. 80.
Another principle has legitimately grown out of those stated above. The execution creditor having a right to levy' on and sell the partner’s individual interest, and the execution purchaser stepping only into the shoes of him whose right was sold, without changing or affecting the rights of the other partner or partners, if there was nothing more in the transaction, the latter would have no right in equity to arrest such levy and sale. Moody v. Payne, 2 Johns. Ch. 548; High on Injunctions, § 814. In fact, we know not how to reconcile the two propositions,'that an execution at law may be rightfully levied on the individual interest of a partner, and yet chancery will arrest the sale until the partnership account is first taken.
¥e will not say cases may not arise, where the nature of the partnership transactions is such, that a levy, seizure and sale' of the interest of one partner, will so disturb and embarrass the business of the firm, as to inflict on the other member or members irreparable injury, and thus clothe the Court of Chancery with jurisdiction to arrest such interference, until, by account,
The bill in the present case utterly fails to show any interference, actual or threatened, with the possession of the partnership, or any member thereof, under the levy sought to be enjoined. It therefore fails to show any special ground for ■equitable interposition — fails to show irreparable injury will follow from a sale — and the chancellor rightly dismissed it for want of equity.
If the sheriff, under an execution against one member of a firm, should levy upon and sell the interest of the other member, this would be a conversion, for which the latter could maintain an action of trover.—Perminter v. Kelly, 18 Ala. 716; Walsh v. Adams, 3 Denio, 125 ; Freeman on Executions, ,§ 254. It may be such excessive levy would constitute the sheriff a trespasser ab initio, for which an action would lie in the name of the firm.—Sheppard v. Shelton, 34 Ala. 652.
Another question may become very important in the after consequences of this decision. According to the averments of the bill, the sheriff levied the execution on only a part of the partnership effects, which consisted of a larger quantity. Was this permissible ? Under the older rulings, which regarded the ownership of the several partners as partaking of the nature of co-tenancies, such levy on a part of the partnership effects might be upheld. Put the scope of partnership associations has become greatly enlarged in modern times, and their nature and principles have come to be better understood. ' Those principles are shown above, as extracted from the highest authorities, and they are very imlike those which obtain between tenants in common. Freeman, in his work on Executions, § 125, very justly says: “ The precedents made at an early day, when the íaw of partnerships was imperfectly understood, are losing their force as authorities. Their place is being supplied by a line of decisions, destined to grow in favor and number, declaring that the creditor of an individual partner can not sell any specific article, but only the partner’s interest in the whole of the partnership assets, and that the purchaser does not acquire the right to hold possession of the property purchased, as against the other members of the firm.” These, we think, are words wisely and fitly spoken, and they have our approval and
The decree of the chancellor is affirmed.
