55 Ala. 305 | Ala. | 1876
In Howard v. Jones & Starke, 50 Ala. 67, it was decided, that money or property, belonging to a partnership, may be claimed by the partners individually, as exempt from levy and sale under process against them. The case was an action against partners, for the recovery of a partnership debt, and a garnishment against one having in his custody partnership funds, exemption of which the partners claimed. This decision controlled that of Dunklin v. Kimball, Ib. 251, in which it was held, that two members of an insolvent partnership, having, without the.consent or acquiescence of a third, made an assignment of the partnership effects, for the payment of partnership debts, and the assignee having by sale converted the effects into money, the third partner could claim and recover from him one thousand dollars of the proceeds of sale, as exempt from liability for debts, or, if the proceeds of sale would not make a sum sufficient for a similar exemption to each of the partners, then one-third of such proceeds. The subsequent case of Giovanni et al. v. First National Bank, 51 Ala. 177, holds, that if partnership property is levied on, and each partner asserts a claim of exemption to his interest therein, their joint interest in the property claimed is thereby severed, and they can not maintain a joint action for its seizure and sale. The present appellant is one of the partners suing jointly in the latter case, and now suing alone, for the seizure and sale of the share of the partnership property claimed by him as exempt.
The appellant and one Guily were partners, equally interested in carrying on business as confectioners in the city of Montgomery. They became indebted to the appellee, for
The constitutional provision is, “ The personal property of any resident of this State, to the value of one thousand dollars, to be selected by such resident, shall be exempted from sale on execution, or other final process of any court, issued •for the collection of any debt contracted after the adoption, of this constitution.” The statute, though enlarging the exemption, by the enumeration of specific articles of personal property as exempt, in addition to the constitutional exemption, does not vary or change the nature of the ownership requisite to authorize the assertion of the right. Ownership is an indispensable element of the right to exemption. It is property which may be taken, and rightfully taken, under process against the resident debtor, which the constitution and the statute confer on him the unqualified privilege and right to select and retain. The purpose is, to confer on the resident debtor a substantial benefit, the enjoyment of which shall rest only in his volition, and of which he can not be deprived by another. The right is positive, unqualified, of equal dignity with other rights of property protected by the constitution from legislative or judicial invasion or diminu
The language of the constitution is not ambiguous — it is clear and unequivocal; and the statute observes it, with not the least change, which could indicate a change of intent on the part of the law-maker. The property exempt is the personal property of any resident of this State, to be selected by such resident, of the value of one thousand dollars. Conceding that the constitution and the statute are humane and beneficial in purpose, and in operation, and that a liberal construction must be adopted to further the purpose; yet, the construction must be consistent with a true and just interpretation of the terms employed. These are the best and highest expositors of the intention of the law-maker, which it is the object of all construction to ascertain. Can any just interpretation or construction of the language of the constitution, and of the statute, apply it to partnership property, seized under process against the partnership, for the payment of a partnership debt ? It can not be doubted, the right of exemption is limited to individual debtors; and in them is a positive, unqualified, individual right. A corporation, or any other artificial, legal being, having legal capacity to contract debts, is not clothed with the right. Whatever of property they may own, is still subject to the payment of the debts they may contract. A partnership is an association of two or more persons, uniting “their money, effects, labor, and skill, or some or all of them, in lawful commerce or business,” the profits to be divided, or the losses borne, in the proportions which may be agreed on by the partners. — 3 Kent, 19. Two leading principles govern the association — a common-interest in the partnership property, and a joint and several responsibility for all its engagements. The individual ownership of the money, or effects of any kind, which each partner may contribute to the association, whether the contribution is in the first instance, in the formation of the partnership, or subsequently in the course of its existence, is lost, and merged in the joint and common ownership of the partnership. Either partner may, in the course of the partnership, dispose of such property absolutely; and those acquiring title from him, can retain it against the partnership, or
We are compelled to overrule Howard v. Jones & Starke, 50 Ala. 47; Dunklin v. Kimball, Ib. 251, and Giovanni et al. v. First National Bank, 51 Ala. 177, so far as they assert that individual exemptions can be claimed from partnership property, when taken under process against the partnership, while the partnership continues.
The charge of the City Court, to which an exception was taken, was correct; and the judgment must be affirmed.