24 S.E. 420 | N.C. | 1896
The action was brought for the purpose of having a receiver appointed for the Boyd Manufacturing Company (a partnership composed, before its dissolution by the death of A. J. Boyd, of A. J. Boyd, G. D. Boyd and Mrs. T. A. Richardson) and to restrain the execution sale of partnership property by the defendant Bank of Reidsville on a judgment rendered in 1894. The defendant Redd is administrator of A. J. Boyd, deceased. A receiver was appointed, a reference made to ascertain the indebtedness, priorities, etc., and from a judgment confirming the report of the referee the defendants G. D. Boyd and S. H. Boyd appealed.
The facts essential to an understanding of the decision of the Court are stated in the opinion of Associate Justice Furches.
A. J. Boyd, S. H. Boyd, G. D. Boyd and Mrs. T. A. Richardson were the individual members composing the partnership of the Boyd Manufacturing Company. A. J. Boyd is dead and the partnership is insolvent. The Bank of Reidsville has recovered a judgment against the concern for a partnership debt, sued out execution and is trying to enforce its collection by a sale of the partnership property. S. H. Boyd and G. D. Boyd each claim their personal property exemptions out of the partnership effects, and have each assented to the other's doing so; but Mrs. Richardson and the administrator of *421
the deceased partner object, and the question is, can S. H. Boyd and G. D. Boyd take their personal property exemptions out of the partnership effects, against the consent of Mrs. Richardson and the administrator, Redd? It has been repeatedly held by this Court that one partner is not entitled to this exemption without the consent of his copartners. Stout v. McNeill,
It does not become necessary that we should determine the relation of Mrs. Richardson to this concern further than to say that it appears from the case that she put $5,000 into the partnership and must have some interest, and it hardly lies in the mouths of those who have dealt with her, as a partner, to set up her coverture for their benefit. We have discussed Mrs. Richardson's relation more than was necessary for the purpose of showing that the reasoning of defendants, as to why she need not object, that she needs no protection for her individual estate against the creditors of the firm, does not apply to the estate of A. J. Boyd. And when it comes to a consideration of his interest it is contended that his estate cannot be protected because he is dead and can neither object nor assent. This is a right ingenious way of working the thing out. But it would be "to stick in the bark" and to abandon the principle upon which the rule has been established to sustain the contention of these defendants, that although the partnership was dissolved by the death of A. J. Boyd, still his estate (his administrator) has the same interest in its effects and is under the same obligation to its creditors that A. J. Boyd was when living. And if the rule was founded upon the principle of equitable lien that a partner has in the partnership effects, as is stated in Stout v. McNeill,supra, the estate (the administrator of A. J. Boyd) is as much interested in having the partnership assets applied to the satisfaction of the partnership debts as A. J. Boyd would be if living. So it is plain to see that the reason of the thing is against the claim of these defendants. *422
But if we should not be governed by the reason and spirit of the law, as we think we should, but conclude to "stick in the (680) bark" and be governed by the letter of the law, we find these defendants in no better condition. The rule is that they are not entitled to this exemption "without the consent of the other partner or partners," and it is certain that A. J. Boyd has not given his consent to the allowance of these exemptions. The defendants S. H. Boyd and G. D. Boyd are not entitled to the exemptions claimed, and there is no error.
Affirmed.