57 Pa. 9 | Pa. | 1868
The opinion of the court was delivered, by
The property sold under the executions of Cake against Snyder, and of the Campbells and Vandyke against Billman & Bergstresser, was the property of the firm of Snyder & Bergstresser. The executions being against the partners individually, the proceeds of the sale represent the several interests of each, and not that of the partnership, and must be appropriated accordingly. Doner v. Stauffer, 1 Penna. Rep. 198, and a long line of cases following it, establish this to be the law. A few are cited, from which a reference may be obtained to others: Deal v. Bogue, 8 Harris 228; Baker’s Appeal, 9 Id. 76; Cooper’s Appeal, 2 Casey 262; Backus & Co. v. Murphy & Co., 3 Wright 397. The effect will be to give one-half of the proceeds of the sales to the execution of Cake, and the other half to those of Campbells and Vandike in their order. Cake’s judgment against Snyder was taken as a further security^for a partnership debt, secured by a mortgage to Cake of $500(1, executed by Snyder & Bergstresser, and it is thought this ought to vest in Cake the whole proceeds of the sale of the partnership property. Had Snyder intended to bind the partnership by executing the instrument in the name of the firm, or by confessing the judgment against his partner as well as himself, though without actual authority, the effect attributed by the court below to the sale under Cake’s execution would have been to carry the partnership title in the goods over to the purchaser, and the proceeds would then have represented the partnership interest, according to Grier v. Hood, 1 Casey 430, and Kelly’s Appeal, 4 Harris 59. But the judgment was in Snyder’s name alone, without the trace of an intention in the paper signed • by him to bind the firm by it, while the proof is clear that it was expressly given as collateral to the mortgage of Snyder & Bergstresser, in order to secure Cake upon Snyder’s individual estate. The form of the security coincided with the actual intent. The execution and levy were therefore upon Snyder’s individual interest in the goods, and the fund in court follows the interest sold. Had the partnership title in the goods been sold under some of th.e executions, the fund being in court, subject to distribution
Vandike and Campbells dispute Cake’s right to any of tbe money on tbe ground that tbe mortgage of $5000 was satisfied by a prior sale of real estate, which in effect extinguished tbe judgment given by Snyder as collateral security. But when Cake took tbe mortgage of $4000 against Snyder prior to tbe $5000 mortgage against Snyder & Bergstresser be bad no notice, so far as it appears from tbe auditor’s report, that tbe real estate upon which tbe mortgage was given bad been taken into tbe partnership. Tbe deed, as we understand tbe case, to Snyder and Bergstresser was an ordinary conveyance vesting title in them as tenants in common, or, at most, as joint tenants, subject to tbe provisions of tbe Act of 1812 relating to joint tenancy. Snyder’s mortgage therefore bound tbe undivided half of tbe title and was entitled to one-balf of tbe proceeds of tbe sheriff’s sales under the mortgages. This left, therefore, a sum unpaid on tbe $5000 mortgage greater than tbe sum raised out of tbe sales of tbe personalty, and consequently so much of tbe Snyder judg-. ment continued unsatisfied. Upon tbe whole case tbe distribution ordered by the court must be reversed, and distribution decreed to be made as reported by tbe auditor giving one-balf of the net proceeds of tbe sales under tbe executions to the execution of Cake and tbe other half to tbe executions of Campbells and Vandike in their order, and tbe costs are ordered to be paid by tbe appellee.
