63 Ga. 586 | Ga. | 1879
Hunnicutt held a Judgment on Summey & Newton, on which execution was issued and levied on a house and lot claimed by Mrs. Summey, who took homestead therein. The jury found the property not subject, a motion for a new trial
As between the partners and debts due to each other from the partnership business, the indebtedness will take date from the time the partnership was formed, and not the time when any accounting was had between them ; and a homestead set apart for the wife must yield to such a liability to-the partner. VanDyke vs. Kilgo, 54 Ga., 551.
If, therefore, this were a contest between Newton and Summey, and the partnership was formed prior to 1868, the date of the adoption of that constitution, any claim which Newton had for balances due him would date before the adoption of that constitution, and the homestead would be subject to pay it.
Is this creditor subrogated to Newton’s rights l That must depend upon- the case he makes. He must show, by pleading and proof, that he cannot make his money out of other effects of the partnership or out of Newton, or he must show other circumstances entitling him in equity to be subrogated to- Newton’s rights. That has not been done in this case, and therefore the judgment is affirmed.
Judgment affirmed.