9 Mo. App. 9 | Mo. Ct. App. | 1881
delivered the opinion of the'court.
This is a proceeding in the nature of a creditor’s bill to subject the alleged interest of defendant Maurice in a judg-' ment obtained by him, together with Cavender and Rowse, against the city, to the payment of a judgment of plaintiff ¿gainst Maurice.
There is no controversy about the facts, which are as follows: —
In October, 1878, Dieckmann obtained judgment for $4,135 against the Union Steam Mill Company and Maurice, who are both insolvent. Three weeks afterwards, Maurice, Cavender, and Rowse obtained judgment against the city for $2,585. Dieckmann saw this in the daily papers next morning, and filed this bill at once.
In 1868 Maurice, Cavender, and Rowse went into a transaction in real estate together, buying certain property in the city in their joint names for the purpose of selling it out in residence lots at a profit. The land was purchased from Blair. They called it Benton Place, and in preparing it for market as choice residence property, they got the city to lay down water-pipe, for which they paid in June,
The court rendered judgment in favor of. defendants, and we think that this is the only decree warranted by the facts. We are unable to see ally superior equity that Dieckmann has to have his debt paid out of this judgment, which represents a claim belonging to Cavender, Rowse, and Maurice, as partners in the transaction out of which it arose, since the total amount of the judgment is needed to make
This being the case, it does not appear that Maurice had, at the time that plaintiff filed his bill, any beneficial interest in this property that could be reached by his creditors. Each member of the partnership is regarded as having an equitable lien on the surplus assets of the firm, for the purpose of having them applied in payment of what may be due the partners respectively; and this lien of partners on the partnership property extends to whatever is due to the firm by any of its members for debts to the firm incurred by them in their character as members of the firm. Lindley on Part., sects. 679, 682. The special tax-bills which Cavender, Eowse, and Maurice recovered against the city were undoubtedly a part of the partnership stock ; and Maurice having withdrawn from the funds of the partnership, by the use of the Crangle note, an amount in excess of his share to more than the amount of the judgment on these bills, it does not appear that he has any interest in these bills, or in the judgment obtained upon them, which could be asserted by him or reached by his execution creditor, for on sale on execution of the interest of a partner for his separate debts, the purchaser takes only what remains to the partner after settlement of the accounts of the partnership.
It is not a question of the validity of the oral assignment of his interest in these bills by Maurice to Cavender and Eowse, of the Statute of Frauds, or of fraudulent assignment,
There is no pretence of any fraud in the case, or of a simulated conveyance by Maurice of his interest in these bills to cover up his property. Having used the Crangle note with the consent of one of his copartners, he agreed with them, long before plaintiff had sued, that the proceeds of these tax-bills, when collected, should go towards makiug up his deficiency to the firm. As he will still owe his copartners on account of the affairs of the firm after the judgment has been collected by the two, Maurice can have no beneficial interest in the judgment to apply to the satisfaction of his indebtedness to others.
The judgment is affirmed.