31 Miss. 111 | Miss. | 1856
delivered the opinion of the court.
This is a writ of error to a judgment of the Circuit Court of Carroll county.
The main facts as disclosed by the record are these; — M‘Rae and Coffman, sued out a writ of attachment against one Richard
It will at once be perceived, that the only question for decision is, whether the sheriff in levying the attachment in order to reach the interest of one partner for the payment of his individual debt, could legally take into his custody the entire stock of goods, thus interfering it may be supposed to some extent with the rights of the other partner.
It is now too firmly settled to be questioned, by both policy and authority, that the interest of a debtor in co-partnership property, may be the subject of levy and sale for the payment of his individual debts. If it were not so, all the debtor would have to do to screen his property would be, to keep it employed in co-partnership purposes. It may also be assumed, that whatever can be subjected to execution after judgment, may, under the provisions of our statutes, be taken by attachment, where such proceeding is authorized before judgment. These questions settled, we will proceed to inquire what were the rights of the creditor and the duty of the sheriff in executing the writ of attachment.
This question, like all others at the present day, upon either side of which a plausible argument can be made, is left in a state of great uncertainty by the authorities. This uncertainty, however, it is believed, has been produced by courts of law, adopting as a guide for their decisions, rules which more appropriately belong to courts of equity. The first point to be settled is, what interest of the debtor partner can be seized on an execution against
Again, the right to make the levy implies the further right, or rather duty in the sheriff, to take care of the property until it can be disposed of by due course of law. He is held accountable for the property as it was at the time of the levy; and were he to permit the other partner to continue his sales by retail, nothing might remain to satisfy the demand of the creditor, when the time arrived for converting the property into money. The partner can no more interfere with the rights of the creditor in the property, than the creditor could interfere with the partner’s rights. One stands upon his title to the property, and the other upon his right to subject it to the payment of his debt. So far as legal rights are concerned, they may be said to stand upon an equal footing. Admitting that the sheriff has no exclusive right to the possession of the property, his right in this respect is equal to that of the partner; and if he were let into possession, it would only be for the purpose of keeping the goods safely till a disposition should be made of them by law. If he could make a sale at all, it would have to be made in gross, and not in the usual way by retail, and in any event no de
This is the manner in which the law views the rights of both parties; and a different course of proceeding only takes place where some countervailing rule of equity is invoked by the solvent partner. It is the creditor’s right to subject the legal interest of the debtor partner to the payment of his debt; and it is, at the same time, the right of the other partner, upon a sufficient showing, to invoke the aid of a court of equity, at any time while the creditor is pursuing this legal right, to limit such creditor to the actual interest of the debtor, upon a final settlement of the co-partnership accounts, and to such course of proceeding as will protect the partner against loss, arising from the delay in the sale of the goods, or from any other cause. If, however, the partner permit the creditor to proceed by regular proceedings at law, without resorting to his equitable remedies, he cannot complain, or maintain his action for damages afterwards. The creditor was but pursuing his remedy in the proper way, by appealing to the law, and his rights were equal to those of the partner. The courts of equity were as open to him as the courts of law were to the creditor. It was neither the business of the creditor nor of the sheriff, to investigate the partner’s equity, and to institute the proper proceedings for him. He was bound to take notice of his own rights.
Thus viewing the question, we are of opinion, that the judgment of the court below is correct.
Judgment affirmed.