12 Wend. 131 | N.Y. Sup. Ct. | 1834
By the Court,
The assignment and judgment were both found fraudulent against creditors, and the evidence sustains the verdict. The assignment is fraudulent upon its face, and is therefore void as against creditors; but it is valid against the assignors. I consider the plaintiffs standing in the place of Byrne and Fletcher, and having their right to the property, and no other ; and if the judgments in favor of Carter were judgments against both Byrne and Fletcher, there could be no question about the correctness of the decision of this cause at the circuit. According to the decisions of this court, 1 Wendell, 311, 2 Caines’ R. 254, and 9 Wendell, 439, the judgments entered against Fletcher, impleaded with Byrne, are valid judgments against Fletcher, but not against Byrne; they do not purport to be judgments against Byrne. Upon executions against one partner, the sheriff can sell the interest which such partner has in the partnership property, after the partnership debts are paid. In the matter of Smith, 16 Johns. R. 106. The officer certainly would have had a right to sell the mere interest of Fletcher, and the purchaser would have taken it subject to the claims of the partnership creditors and of the other partner. In the matter of Smith, above cited, it is said that the sheriff does not in such cases deliver possession. He must, however, have the right to levy. Each
This is a case in which a judgment of retorno habendo would be peculiarly proper, for it is by no means certain that any thing will be realized by the creditor; on the contrary, it is quite probable that the partnership effects are insufficient to pay the partnership debts. The statute provides that whenever the defendant shall be entitled to a return, except in cases of distress for rent, instead of taking judgment for such return, he may take judgment for the value of the property replevied. 2 R. S. 531, § 55. In this case a verdict was taken for the amount of the executions in favor of Carter. As no objection was made at the circuit to this mode of assessing the defendants’ damages, we may presume that the amount of the executions is less than the value of the property reple-vied. I can perceive no irregularity in this course. It is fair so to construe the statute as to give the full value of the property replevied, when the defendant’s demand equals or exceeds such value, and in such cases only. Had the value of the property replevied in this case been f500, a balance would remain in the hands of the defendant, which, unless claimed
New trial denied.