99 Tenn. 614 | Tenn. | 1897
This is an action of replevin commenced before a 'Justice of the Peace. Upon appeal to the Circuit Court there was a trial before the Court and jury, and verdict and judgment for the plaintiff, and defendants have appealed.
The property involved is a greenhouse stock of flowers, bulbs, and furniture. This stock was levied upon by Hood, an officer, to satisfy an execution in favor of Jones Bros. & Martin, as the property of James G. Richardson and W. H. Henderson. They were replevied by Mary S. Richardson. It appears that the stock at one time belonged to the plaintiff, Mary S. She permitted it to remain in the hands of W. H. Richardson, her father, and James G. Richardson, her brother, and they carried on the business for several years, using the general stock and adding to it, and not keeping the original and added stock separate, and the stock was in this condition when levied, upon.
It is objected that the Court charged the jury that there was no proof of any partnership; and, again, that inasmuch as the articles added by James M. Richardson and W. H. Richardson could not be identified, there could be no levy upon them, and the only relief would be in equity for an accounting, which could not be had in an action of replevin.
We are of opinion there is error in this charge.
In either event, the interest of one partner or joint owner, in the common property, may be subjected to his individual debt. In orde'r to do this, the officer having the execution may seize the entire stock, or some considerable = portion of it, sufficient to warrant further proceeding. Rains v. McNairy, 4 Hum., 358; Logan v. Hartford Coal Co., 9 Heis., 690; Knight v. Ogden, 2 Tenn. Chy., 477; Sanders v. Bartlett, 12 Heis., 318; 17 Am. & Eng. Enc. L., 1337. After the levy is made the creditor may proceed in either of two ways — that is, may sell the interest of the partner or joint owner, and leave the purchaser to go into equity and wind up the partnership and ascertain the interest, or the judgment creditor may, before sale, in the same manner, ascertain the interest, and subject it by proper decree. Haskins v. Everett, 4 Sneed, 531; Knight v. Ogden, 2 Tenn. Chy., 477. In any event, only the interest of the partner or joint owner can be subjected. Sanders v. Bartlett, 12 Heis., 318, and cases cited above; 17 Am. & Eng. Enc. L., 1337.
The partner or joint owner whose interest is not seized, can, if he desire, replevy the partnership or
. Let the judgment be reversed, and the cause remanded for a new trial.