Durborrow's Appeal, 84 Pa. 404

Durborrow's Appeal

84 Pa. 404 | Pa. | 1877

Mr. Justice Paxson

delivered the opinion of the court,

This case is saturated with error. The vice of it runs through all the proceedings in the court below back to the transactions of the parties based upon the sheriff’s sale of the appellant’s interest in the property in question. There appears to have been an entire misapprehension of the legal effect of that sale, resulting in protracted proceedings in equity when there was no jurisdiction, and culminating in a decree which the court below was powerless to enforce. Briefly stated, the sheriff’s sale passed nothing but the interest of the appellant, whatever it may be, in the property levied upon. The reason of this is manifest. The property levied upon and sold by the sheriff to Mr. Musser belonged to the firm of J. R. *406Durborrow & Co., which, firm rvas composed of J. R. Durborrow, the appellant, and John A. Nash. We need not cite authority to show that upon an execution against one partner for his private debt the sheriff cannot seize the property of the firm. He can only sell the interest of the partner against whom the execution issued. It follows that all the sheriff sold and all that Musser bought was the interest of Durborrow'. As the purchaser of such interest Musser had the right to an account from Nash, nothing more. He could not take the possession of any specific article of property. The possession and the right of possession were in Nash. Hence the various agreements by which Musser attempted to lease the property to Durborrow were no better than blank paper. They had no validity. Musser bought nothing which could be the subject of a lease. He is undoubtedly entitled to an account from Nash, but to what extent and for what property we are not now called upon to decide. Nash .is no party to this record and his rights cannot and ought not to be affected by any decree in this case. The attempt of the court below to put Musser in possession of his interest was a fruitless proceeding. The writ of assistance commanded the sheriff to do an impossible thing. The attempt of that officer to execute the writ sufficiently appears by the return. A writ of habere facias possessionem de bonis with fi. fa. for costs was first issued. Upon this writ the sheriff demanded the possession of the property from Durborrow' and was refused. Then came the writ of assistance referred to with fi. fa. for costs, under which writ the sheriff went .with the appellee to the printing office of J. R. Durborrow & Co., and then and there declared to the appellee that “ I delivered to him, the said plaintiff, all the interest of him, the said plaintiff, in the presses, types, imposing-stones, cases, racks, and all other printing materials purchased by said J. Hall Musser at a sheriff’s sale, on the 25th day of March 1873, and money made.” All this was harmless enough except the concluding words “ and money made.” Eor the money thus made the appellant must have restitution. We have not touched the merits of this controversy. They are not before us.

The decree is reversed and the bill dismissed. The costs, including those collected upon the writ of assistance, to be paid by the appellee.