White v. Parish

20 Tex. 688 | Tex. | 1858

Wheeler, J.

The petition alleges in effect, and the evidence establishes indisputably, that the plaintiff, after the dissolution of the partnership between himself and Southern, sold to the latter his interest in the partnership effects. Those effects thereby became the individual property of Southern; and upon his decease, they were assets in the hands of his administrator. Neither the plaintiff nor the creditors of the firm • retained any interest in, or lien upon, them as partnership effects. The interest of the plaintiff was extinguished by his transfer of that interest to his co-partner; and the effects becoming thereby the individual property of the latter, they were liable to the same disposition, subject to like charges as his other individual property. Upon the voluntary dissolution of a partnership, it is competent for the partners to agree that the joint property of the partnership shall belong to one of them; and if that agreement be bona fide, and for a valuable consideration, it will transfer the whole property to such partner free from the claims of the joint creditors. While the partnership is solvent and going on, it is well settled the creditors have no equity, strictly speaking, against the partnership effects. Neither have they any lien on the partnership effects for their debts. All that they can, or may do, is to proceed by an action at law for their debts, against the partners ; and having obtained judgment therein, they may cause the execution, issuing upon that judgment, to be levied upon the partnership effects, or upon the separate effects of each partn.er, or upon both. There being, then, no lien and no equity in favor of the creditors against the partnership effects, until such execution is levied upon them, it follows, that those effects are susceptible of being legally transferred bona fide, for a valuable consideration, to any person whatsoever; and as well to the other partners as to mere strangers. (Story on Partnership, Sec. 858; Ex parte Ruffin, 6 Vesey, 119; Ex parte Williams, 11 Id.3.) It is manifest, therefore, from the plaintiff’s own averments, that he had no right of action to subject the property to the payment of the partnership debts. It was rightly treated by the defendant as the individual property of the deceased partner, and subje'ct to administration as such. If the plaintiff was compelled to pay the debts of the firm, he had his recourse, under his agreement with his co-partner, against the estate of the latter. But he manifestly had no right of action against the defendant personally. There is therefore no error in the judgment, and it is affirmed.

Judgment affirmed.