93 Va. 479 | Va. | 1896
2. COMMISSIONER'S REPORT — Prima facie correct — Returning Evidencewith Report. — The report of a master commissioner is to be taken asprima facie correct, except for errors apparent on its face, and those who seek to impeach it must, in some appropriate manner, put into the record the evidence of its incorrectness. Unless directed or requested to return the evidence with his report it is not the duty of the commissioner to do so.
3. PARTNERSHIP ASSETS — Separate Interest of Parties. — How far Liablefor Debts of Each Partner. — Partners are joint tenants of the partnership property. The interest of each partner is his share of the surplus after the payment of partnership debts and the adjustment of accounts between the partners. This interest and no more is liable to the lien of an execution against such partner. If inequalities exist amongst the partners, these should be settled out of the partnership assets, and the share of each partner, after such settlement, is all that can be reached by his execution creditor.
The first assignment of error is the bare statement that it was error for the court to confirm the settlement of the partnership accounts, because the same was without sufficient evidence to sustain it. Neither in the petition for the appeal, nor in the oral argument, did counsel indicate in what respect the evidence was insufficient to sustain the settlement made by the commissioner. It is in accordance with the evidence, and this assignment of error need not be further considered.
The appellant excepted to the report of the commissioner because he allowed the claim of Gambill Co. as a subsisting judgment against Maddock Evans without any proof (it was alleged) that there was such a judgment against the firm, and because the evidence showed that if any debt was due, it was the personal debt of Evans, and not a debt of the firm. The court overruled the exception, confirmed the report, and decreed, as we have seen, the payment of the judgment out of the assets of the firm. This action of the court constitutes the only other assignment of error.
It is to be observed that the exception did not deny that there was such a judgment, but simply claimed that it was allowed without any proof. The report of the commissioner was made in obedience to the decree of the court, and except for error apparent on its face, it was to be taken as prima facie correct, unless steps were taken to place before the court the evidence on which it was based, or it was shown *483
by the deposition of the clerk of the court in which the judgment was alleged to have been recovered, or otherwise, that there was no such judgment. This was not done. The commissioner stated that his report was made up from certain depositions, and" from the records of the clerk's office of your Honor's court." It does not appear that he was directed by the court, or requested by the appellant, to return the evidence on which he reported the judgment. It was not his duty to do so, unless so directed or requested; and, the appellant not having taken steps to bring the evidence before the court, it could not review the finding of the commissioner, and the exception could not avail her.Shipman v. Fletcher,
It appears from the deposition of J. M. Gambill, that Evans, on account of his indebtedness to the firm of Maddock Evans for certain mules, carts and tools belonging to it, had assumed to pay the debt to Gambill Co., and that he and Maddock approached the latter with the view of having them release Maddock from the debt on condition that Evans would secure the debt by a deed of trust on the said property, which was worth about $2,000. Gambill Co. agreed to do so, upon the condition being complied with. Evans returned the next day and declined to give the deed of trust. The desired release was for the benefit of Maddock, and the duty was upon him, and not upon Gambill Co., to see that Evans complied with the condition on which they had consented to release him. As Evans refused to secure the debt by deed of trust, the firm of Maddock Evans continued liable for it.
The evidence establishes, however, that Evans was indebted to the partnership for the mules, carts, and tools, and that he had assumed, on account of such indebtedness, to pay the judgment of Gambill Co. The partners evidently considered that the interest of Maddock in the property was *484 at least equal to the amount of the judgment, and it clearly appears that the share of Evans in the undivided assets is sufficient to discharge it. If the judgment has now to be paid out of the assets belonging to the firm, as it must be, then Evans should be charged in a proper settlement of the partnership, with such an amount for the mules, carts, and tools as would make the interest of Maddock therein equal to the judgment, or which is the same thing, and prevents circuity, the estate of Maddock should receive out of the assets of the firm, after the payment of the judgment, a sum equal to the amount of the judgment, so as to adjust properly the accounts of the partners with the partnership and between themselves, before there is any division of the assets between the partners.
It was not questioned that ordinarily this would be the proper course, bat it was contended that inasmuch as individual creditors of Evans had obtained judgments against him and sued out executions, they thereby acquired a lien on the share of Evans in the assets of the partnership remaining after the payment of the debts of the firm superior to the right of Maddock to have such settlement of the accounts between the partners and a distribution of the assets in accordance therewith.
Partners are joint tenants of the property of the partnership. Neither partner has an exclusive right to any part of the property until all of the debts of the partnership are paid, including the debts which may be due from the partnership to either of the partners. The interest of each partner in the property of the partnership is his share of the surplus after all the firm debts are paid and a balance of accounts is struck between the partners. It is thus that his interest is ascertained. And it is only this interest, so ascertained, that is subject to the lien of the execution or attachment of an individual creditor. The law does not permit the separate creditor to obtain more than the partner, who *485
is his debtor, is entitled to. Christian v. Ellis, 1 Gratt. 396;Digg's Admr. v. Brown,
In Pierce v. Jackson, supra, Parsons, C. J., said: "At common law, a partnership stock belongs to the partnership, and one partner has no interest in it, but his share of what is remaining after all the partnership debts are paid, he also accounting for what he may owe the firm. Consequently all the debts due from the joint fund must first be discharged, before any partner can appropriate any part of it to his own use, or pay any of his private debts; and a creditor to one of the partners cannot claim any interest, but what belongs to his debtor, whether his claim be founded on any contract made with his debtor, or on a seizing of the goods on execution."
In Nicoll v. Mumford, supra, Chancellor Kent said: "The interest of each partner is his share of the surplus, subject to all partnership accounts; and that interest, or surplus only, is liable to the separate creditors of such partner, claiming either by assignment or under execution." In Menagh v. Whitwell, supra, Rapallo, J., said: "Partnership effects cannot be taken by attachment or sold on execution to satisfy a creditor of one of the partners, except to the extent of the interest of such separate partner in the effects, subject to the payment of the firm debts and settlement of all accounts." *486
In Atkins v. Saxton,
It was error, therefore, in the Hustings Court to distribute any part of the share of Geo. M. Evans in the undivided assets of the partnership remaining after satisfying the judgment of Gambill Co. to the separate creditors of Evans until the payment of a sum equal to the amount of the judgment had been decreed to the estate of Maddock, to which sum he was entitled, according to the evidence, out of the firm assets on account of the indebtedness of Evans to the partnership, and which the latter in the lifetime of Maddock had assumed to pay.
Its decree must, therefore, be reversed, and the cause remanded to the said court, with directions to distribute the moneys in the hands of the said attorneys upon the principles herein declared.
Reversed.
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