12 Cal. 191 | Cal. | 1859
delivered the opinion of the Court—Terry, C. J., and Field, J., concurring.
Several errors are assigned by Burton and Blake, who are the appellants here. They are met, however, at the threshold, by the objection that they have no standing in Court, because the respondents’ counsel say they are not parties to the record. We think the objection is not good. The petition was certainly a very irregular way to get them into the cause, but it is an irregularity of which the respondents cannot complain. The petition, though not entitled of the cause, was filed among the papers as a part of the record related to the subject matter of the suit, and was acted on by the Judge as a portion of the pleadings, and the final decree refers expressly to the injunction granted on the petition and in pursuance of its prayer, and makes that injunction perpetual. Being affected directly by the judgment, it certainly does not lie in the mouth of the plaintiff below to say the
It is contended that the cattle, etc., of the partnership is not the subject of levy and sale by the Sheriff, on an execution against Thompson,one of the partners. We think the rule is otherwise. The interest of one partner in partnership property is such an estate under our statute as may be sold for his debts ; it is a legal estate in chattels. It is true that, as between the partners, the interest of each is only the residuum of the property left after the settlement of the firm debts; and that the rights of firm creditors and the several partners are paramount to the claims of separate creditors of the firm.
But this interest of the partner thus defined, is held by the weight of authority subject to levy for his debts. Story on Partnership, (sec. 263) thus states the rule : “ In cases of this sort, therefore, the real position of the parties, relatively to each other, seems to be this : The partnership property may be taken in execution upon a separate judgment and execution, against one partner ; but the Sheriff can only seize and sell the interest and right of the judgment partner therein, subject to the prior rights and liens of the other1 partners and the joint creditors therein. By such seizure the Sheriff acquires a special property in the goods seized; and the judgment creditor himself may, and the Sheriff, also, with the consent of the judgment creditor, may file a bill against the other partners for the ascertainment of the quantity of that interest, before any sale is actually made under the execution. The judgment creditor, however, is not bound, if he does not choose, to wait until such interest is so ascertained, but he may require the Sheriff immediately to proceed to a sale, which order the Sheriff is bound by law to obey. In the event of a sale, the purchaser at the sale is substituted to the rights of the execution partner, quoad the property sold, and becomes a tenant in common thereof; and he may file a bill, or a bill may be filed against him by the other partners, to ascertain the quantity of interest which he has acquired by the sale.”
Chancellor Kent held in Moody v. Payne, (2 Johns. Ch. 548) that an injunction should not be granted to restrain a sale by the Sheriff, upon the ground that no harm is thereby done to the other partners; and the sacrifice, if any, is the loss of tlie judgment debtors only. Mr.
But this doctrine has no application to this case. The petition makes no case fit for the rule here laid down. It may safely be conceded that if the judgment debtor be indebted to the firm, or the firm be so indebted that on a settlement the debtor partner would not be entitled to any share of the common property, that the other partner might intervene to prevent a sale of the partnership assets. But it would be a great hardship, and would lead to enormous frauds, if, merely because the account was unsettled and something due, however small the amount, the creditor should be postponed until an account was taken. No man with a small debt against such debtor, could afford to prosecute his claim; and the effect would be, in almost every case, to prevent or postpone a sale at the suit of the separate creditor.
The petition does not show any facts upon which the injunction was properly granted.
The decree shows a balance of some |7,000 due from the defendant to the plaintiff; but this balance the decree itself shows is wrong. The amount is given as the excess of receipts of firm money over expenditures ; but for this excess the defendant was only responsible to his partner for one-half, not for the whole. The bill shows a great num
The decree is also erroneous in ordering a private sale of the firm property. The selling property of this sort in this way, is dangerous as a precedent, and liable to great abuse in practice. Only so much of the property as is necessary to pay the firm debts should be ordered to be sold, and the balance divided.
These principles being decisive of this case on the merits, it is not necessary to notice minor points.
The decree of the Court below is reversed, the order for injunction dissolved, and the cause remanded for a decree in pursuance of this opinion.