Tyler v. Their Creditors

| La. | Dec 15, 1844

Garland, J.

Price having obtained a judgment against Tyler & Jacks, issued his execution, and the sheriff levied it on all the goods and effects in their store. A few days after, Tyler alone presented his petition, accompanied by a hilan and schedule of all his creditors, and those of Tyler & Jacks, also of the property belonging to him individually, and to the firm of which he was a member; “ wherefore, he, individually, and as a member of said firm, and for said firm,” prayed that the cession be accepted “ of his property, and of the property of said firm,” and that a meeting of the creditors of both be called, according to law. This cession was accepted by the judge for the benefit of all the creditors, amongst whom Price is named, and a meeting ordered, which was subsequently held, and Tyler appointed sole syndic. The sheriff being in possession of the property, Tyler, after he was qualified as syndic, took a rule on him and Price, to show cause why the property should not be delivered to him, to be sold, and the proceeds distributed among the creditors, according to law. About the same time, Price took a rule on Tyler, individually, to show cause why the sheriff should not proceed to sell the property, and hold the proceeds of the sale subject to the future order of the court, and why such Sale should not convey all the legal rights of Tyler, as well as of Jacks. To this rule Tyler showed for cause, that all legal proceedings against his person and property had been arrested, by the order of the court accepting his cession of goods; that he was, himself, the syndic of all the creditors, duly appointed and qualified, and was entitled to the possession and administration of the property for their benefit. He further averred, that Jacks had permanently left the State, and had left no one to represent him. On the trial, these various allegations were sustained, and the court below ordered the sheriff to deliver the possession of the property to the syndic, to be administered for the benefit of all the creditors. From these judgments Price has appealed.

By the cession of property, and the acceptance of the same by the court and creditors, all proceedings against the person and property of Tyler were arrested. The sheriff has no right to proceed against him directly, much less can he be proceeded against indirectly, under the pretence of selling the interests and rights of Jacks, and thereby conveying a complete title to the purchaser. By the cession of property, and the admitted insolvency of Tyler, the partnership was dissolved, and the question now arises, who is entitled to the possession and administration of the property. If Jacks were before us, claiming a fight to administer, it is possible that, according to the principle adopted in the case of Warfield v. His Creditors (2 La. 188" court="La." date_filed="1831-01-15" href="https://app.midpage.ai/document/warfield-v-his-creditors-7157418?utm_source=webapp" opinion_id="7157418">2 La. 188), he would be entitled to the administration and possession, concurrently with Tyler, because he has a title in common Avith him — an undivided right; the mere seizure does divest him of that title, and vest it in the sheriff, or Price, the creditor. The only effect of the seizure is to give a privilege on the thing seized, and an ultimate right to sell it, if not arrested by some judicial order or legal cause. Tyler, in his petition, not only makes a surrender individually, but as a member of the firm, and for the firm, and prays that a meeting of the creditors of both be notified. The cession was accepted by the judge, as prayed for ; Price was made a party; and the order for a stay of proceedings, appears to apply as well to the creditors of the firm as to the individual creditors. One partner can sell all the moveable property of the firm, to pay debts, or to get money to use for the common business of the concern. This being true, we see no strong reason why he cannot make a cession of the goods belonging to it, for the purpose of discharging the same debts. The Civil Code treats of the cession of property in the chapter relating to the mode of extinguishing obligations, and art. 2166 says, that it is a relinquishment that a debtor makes of all his property to his creditors, when he finds himself unable to pay his debts; and a subsequent article provides, that the syndic shall sell the property surrendered. Tyler was bound for all the debts of Tyler & Jacks ; their property is the common pledge of the creditors ; he has, for the firm, surrendered it; Jacks makes no opposition; and the judgment, or order of the judge seems to us conclusive, as long as it stands as it does. If judgment should be given, as asked by Price, it would be a clear violation of the order staying all legal proceedings against the person and property of Tyler, and of the firm. The creditors of the firm have assembled, with the exception of Price, and accepted what Tyler has offered. The court has homologated their proceedings, without opposition, and we cannot permit one creditor to sell, through the sheriff, the common pledge of all, and indirectly avoid the effect of an existing decree of the court.

It is ordered and decreed, that the judgment of the District Court making the rule taken by Tyler, the syndic, absolute, and discharging that taken by Price, be affirmed, he paying the costs of each, and of these appeals.