28 Fla. 680 | Fla. | 1891
In Griffin vs. Orman, 9 Fla., 22, and 10 Fla., 9, there had been a partnership between Sewell, Orman and
In West vs. Chasten, 12 Fla., 315, there was an agreement between the remaining and the retiring partner by which the former assumed the debts of the firm, and agreed to save the latter harmless from the same, the latter transferring and assigning all his interest in the goods to the remaining partner, and it was held that by virtue of this agreement the partnership property ceased to be joint property and the lien or equity of the retiring partner to have a sale of the property and an application of it to the joint debts was destroyed. See also Upson vs. Arnold, 19 Ga., 190.
It is true that these decisions wrere in ('.ases between former partners, but it must be remembered that the right or equity of a creditor of a partnership to have partnership assets applied to partnership debts as against the individual creditor of any one member of the firm is through that lien or equity of the other member or members, which constitutes the right of the latter to such application. Story’s Equity, secs. 675 and 1253; Story on Partnership, secs. 358, 360; Washburn vs. Bank, 19 Vt., 278; Bardwell vs. Perry, Ibid, 292; Rice vs. Barnard, 20 Vt., 479; Smith vs. Edwards, 7 Humph., 106; Ex parte Ruffin, 6 Vesey, 119; Ex parte Williams, 11 Vesey, 3; Ex parte Rowlandson, 2 V. & B.; 172; Baker’s Appeal, 21
One partner may upon a voluntary dissolution of a firm transfer to Ins copartner all his interest in the partnership concern, and if he do so bon,a fide and for a valuable consideration, before any lien has been acquired thereon by partnership creditors through an execution, an attachment or otherwise, the same will, if such be the intention of the partners, vest in the purchasing partner as his sole or individual jiroperty, divested of the right or equity mentioned above, in the selling partner. Not only do the authorities cited above affim this proposition, but the two decisions of ■this court are in conflict with the theory of the second instruction asked by the plaintiffs in error, that a stipulation upon the part of the purchasing partner to pay the firm debts would be fatal to the good faith of the transfer and to the divestiture of the joint ownership or partnership character of the property. There are numerous authorities in which the transfer has been sustained and the vesting of the property in the purchasing partner as his individual property has been upheld as against the claims of firm creditors, notwithstanding the presence of such a covenant; and such covenant may be the sole consideration of the. transfer. West vs. Chasten, 12 Fla., 315; Story on
It is also- settled that where one partner transfers his entire interest in the partnership concerns to his copartner so as to vest in him the partnership assets as his sole property, a dissolution of the partnership results' and the purchasing partner may as against any simple creditor of the partnership, assign the property thus vested in him as his sole property, for the pay ment of his individual indebtedness. He can exercise the same dominion over it that he might over any other individual property. A partnership creditor can of course sue him and his former partner, and can levy his execution on the separate property of either, just as he could have sued both before the transfer and have levied upon the joint property of the firm or the several property of either member; but if before a lien has been thus or otherwise acquired by the firm creditors, the purchasing partner shall have transferred or applied in good faith the effects which have thus become his sole property; to the payment of his individual indebtedness, such transfer or assignment will be sustained in fayor of such individual creditor.
At the time Clarence Aslimead sold to William H. Ashmead, the plaintiffs in error had no lien on the partnership assets. This is clearly affirmed by the authorities cited above. Clarence had the right to make, and William the right to receive the transfer, and if done in good faith the partnership creditors cannot complain. Its validity depends upon the bona fides of the transaction. Ex parte Williams, 11 Vesey, 3. Where, at the time of the transfer, the firm and each of the partners are insolvent, as in Ex parte Mayon, 4 De G., J. & S., 663. or the firm had become insolvent, as in Yale vs. Yale, 18 Conn., 185; Roop vs. Herron, 15 Neb., 73; and Wilson vs. Robertson, 21 N. Y., 587, the transfer it seems should be held fraudulent and
The authorities cited by plaintiffs in error do not conflict with the views we have announced. The lan
We will not be understood as expressing an opinion whether or not the assignment to John T. Walker is, one for the benefit of his individual creditors, and excluding creditors of the firm; nor as intimating that Clarence Aslnnead would be permitted to be paid out of the proceeds of the assignment as against the plaintiffs in error, even if the sale to him had not been rescinded ; Strattan vs. Tabb, 8 Ill., App., 225; nor as committing ourselves as to whether the use made of the “claim” proceeding in this case is proper.
The judgment is affirmed.