59 Ala. 488 | Ala. | 1877
It is settled by repeated decisions;of
The decisions of this court; declaring that’ the separate •creditor of any one partner, may take in execution that partner’s interest in all the tangible property of the partnership, have stood too long unquestioned, and been too frequently acted on, for us to indulge any inquiry into, or discussion of their correctness.— Winston v. Ewing, 1 Ala. 129; Moore & Co. v. Sample, 3 Ala. 319; Andrews v. Keith, 34 Ala. 722. The purchaser at the sheriff’s sale does not acquire an exclusive right to the possession of the partnership property—he becomes a tenant in common with the other partners, and it remains liable to the payment of the partnership debts, and liable to the adjustment of the accounts of the partners between themselves.—Andrews v. Keith, supra; Parsons on Part. 350-358; Colyer on Part. 822 et seq. All that can be sold, or acquired by the purchaser, is the interest of the co-partner, nothing more. That interest is dependent wholly on the state of the partnership affairs, and the sale eventuates in giving the purchaser nothing, if on a settlement of the partnership, the copartner is found without interest.
The statute under which the motion was made is section 3033 of the Revised Code, authorizing a summary remedy against a sheriff and his sureties, “ for failing to make the money on an execution, which by due diligence could have been made,” and authorizing a judgment “for the amount of the execution, interest, and ten per centum damages.” The issue found between the parties, was in effect on the truth of the averment that by due diligence, the money could have
Let the judgment be affirmed.