| Superior Court of New Hampshire | Jul 15, 1843
The owners of the stage property appear to be partners, not only as respects those dealing with them, but as respects each other. Chitty on Contracts. (5 Am. Ed.) 232, and cases cited ; Cota on Partnership 2, and note. They share the profit and' loss of the business' in proportion to their respective interests, and there is nothing to negative an intention on their part that their association should constitute a partnership and that their rights and liabilities should be regulated accordingly, not only as to third persons but as between themselves.
Such being the case, the interest of each partner in the partnership might be taken and sold on execution. 8 N. H. Rep. 238, Morrison vs. Blodgett. If no account of the interest could be taken before a sale, purchasers might have but limited means of ascertaining the value of the interest to be sold, but this cannot exempt the property from seizure and sale.
Neither will the fact that the interest of a partner is of a nature that is incapable of actual seizure and of a reduction into possession, exempt it from a seizure and sale upon execution. Equities of redemption and other interests are of that character, but are nevertheless subject to an execution at law.
It is true that there is difficulty in securing the interest of one partner by an attachment, so that he or his partners, through their right to hold the property, may not impair the security. This subject was adverted to in Morrison vs. Blodgett, before cited.
Perhaps it cannot bo done without some further legislation, unless it be through the aid of chancery by means of an injunction. But the difficulty of effectually securing the interest of one partner by an attachment, so that the other partners, or the debtor himself, cannot, through the right of the other partners to retain the possession of the property, impair the security, by no means proves that such interest is not attachable.
It may, notwithstanding, be attached, and the creditor will thereby gain a prior right to have it applied in satisfaction of his judgment. And should the debtor or his partners attempt to avoid the effect of the attachment, the creditor may perhaps on application to this court, obtain an injunction to restrain them from any acts inconsistent with his right to have the interest of his debtor sold upon the execution.
If it had appeared that all the partners lived in Maine, and that the place of business of the partnership was there, it might, be doubtful whether the interest of the defendant in the partnership could be said to exist in this state so as to form the subject of attachment here, notwithstanding the stage was run into this state, and that a part of the property was here a considerable portion of the time.
The case is not explicit upon this subject, and it has not been adverted to in the argument.
Nor does it appear, by any direct proof or admission, that .the interest, of the defendant was of sufficient value to sat
Assuming that the partnership is carried on in this state so that the interest of the defendant might well be attached and sold here, and that this interest was of sufficient value to satisfy the plaintiff’s demand, the defence must fail for another reason.
In order to bring the case within the statute, the defendant not having resided in this state, there must have been property of the defendant here which could have been attached for the full term of six years before the decease of the plaintiff’s intestate, the action having been brought within the period allowed after his decease. 6 N. H. Rep. 557, Sissons vs. Bicknell.
The defendant’s interest in the stage company had not existed six years before the decease of the intestate, so that unless the defendant had other attachable property here prior to that time, there is no sufficient defence.
In order to show that he had property here during the full term, the defendant relies upon the title to certain real estate of which a deed was executed to him in 1825, as appears in the case. But the case finds that he was never in fact the beneficial owner of this property, although he held the legal title. He held that title only in trust to sell it and account to the grantor. It is true that he gave his note, and that note was afterwards sued and the title to the property re-transferred to the grantor by means of the judgment. But this note was not in fact a consideration for a sale, but a means to enable the grantor to regain his property as he did,
After much consideration, Ave are of opinion that this is not to be considered the property of the defendant, within the meaning of the statute.
If the plaintiff’s intestate, having knowledge of the deed, and having no knowledge of the trust, might have sued this note and have obtained satisfaction of his debt, notwithstanding the deed to the defendant was not acknowledged, (which is very probable,) it does not appear that he had any actual knoAvledge of the existence of the deed to the defendant. He had, then, no actual knowledge of any means of securing his debt. If it should be held that he is chargeable with notice of the deed because he might have learned its existence by inquiry, he should be held chargeable with notice of the facts as they actually existed. He ought not to be held chargeable Avith constructive notice of the deed and not of the trust. If he had not actual notice, he can at most be charged with notice of the facts as they existed, and as he might have learned them on inquiry, and this would be notice that his debtor, although he had a deed, had no equitable interest in the land, and that he ought not in equity to attach and apply it to the payment of his debt.
If the creditor might have attached the land, and thereby secured his debt, it does not lie in the mouth of the debtor, who in fact held it in trust for another, to say that he ought to have done so. He cannot allege that this was property which should rightfully have been applied to the payment of his debt; and if the creditor might have applied this property in discharge of his debt, because his debtor had a legal title apparently absolute, he may well say, when the trust now appears, that he was not obliged to do so, and is not to be prejudiced because he did not do it. If the defendant, not having been Avithin the state, would bring his case Avithin the statute, he should show not merely that there was prop»
That this was not so is very clear, and there must, therefore, be
Judgment for the plaintiff.