Wiles v. Maddox

Napton, Judge, delivered the opinion of the court. This action can not, in our opinion, be maintained. It is an action of replevin against the sheriff for levying an execution against N. Childs, jr., upon the partnership property of D. J. & N. Childs, jr. In law the right to levy an execution against one of two partners upon the partnership effects is recognized with great uniformity both in England and in this country. In New Hampshire a different opinion has prevailed, and there may be cases elsewhere in which the principle has been modified or denied; but in England the common law *82 courts have constantly maintained the right to levy in such cases, and the current of authorities here is in the same direction. Whether a court of equity or a court of law would interfere, under the circumstances of this case, and stay the proceedings of the sheriff, is a question the decision of which can not vary his liability in action of trespass, trover or replevin, where no such interference has taken place or been solicited. It is agreed, on all sides, that it is only the interest of the debtor partner which is levied on and sold, and this is his share of the effects after payment of the partnership debts. But the sheriff levies on and seizes and takes into possession the partnership effects or so much of them as may be necessary to satisfy the execution. The proceeds go to the creditor, the plaintiff in the execution, and the purchaser acquires the interest of the debtor partner, the defendant in the execution, whatever that may be. If the partnership is insolvent this interest is, of course, of no value, since the partnership debts have a priority; but the sheriff, even in such cases, is protected in his obedience to the commands of the writ, and is not under the necessity of investigating the condition of the concern prior to his levy. It is for the solvent partner, or, in cases of bankruptcy or insolvency, for the assignees or creditors, to institute such proceedings for the protection of their interests as the law and the nature of their case may afford. It is intimated in some of the cases that where the firm is bankrupt or insolvent, or partnership rights have been transferred to assignees for creditors, the court of law from which the execution emanated may grant equitable relief by controlling its process; but this is 'denied by other authorities, and a court of equity is alone held competent to furnish relief. However this may be, it is unnecessary to determine here, since no such application has been made either in law or equity, and the sheriff is sought to be held liable as a mere trespasser. Principles of public policy, apart from the mere weight of authority, would in our judgment lead to the same result. *83 The right to an execution in such cases carries with it a moral effect highly important to the interest of the community. It will generally lead to an equitable adjustment of the debt-in cases where the partnership is solvent and an interruption in their business would not be desirable. In other cases the property had as well be in the hands of the sheriff, or the purchaser at the execution sale, as in the possession of the insolvent partners, so far as partnership creditors are concerned. Inconveniences may no doubt arise in isolated cases, and perhaps hardships upon solvent partners; but even then these inconveniences and hardships will scarcely counterbalance those which must ensue from a different doctrine. If the creditor of one partner, whatever the amount of the debt may be, has to initiate proceedings, either at law or equity, to ascertain the exact interest of his debtor in the concern after an adjustment of all the partnership accounts, before he can have his execution levied, it would look very much like giving property so situated a privilege which no other possesses, and exempting it for an indefinite period from the process of the law. The cases on this subject are very fully reviewed by Judge Cowen, in Phillips & others v. Cook, 24 Wend. 389, and may also be found in the notes to 1 Amer. Lead. Cases, 323. So far as the lien of the execution is concerned we see nothing to distinguish this from any other class of executions. As the writ was in the hands of the sheriff before the transfer to the plaintiff, it was a lien upon the interest of N. Childs in the property, and the title acquired from D. J. Childs was subject to that lien. It does not seem material to determine the validity of the deed of trust to Alton Long, which the defendant offered in evidence. Although this deed, if valid, might show that the defendant had no right to levy on the property, it would also show that the plaintiff had no right of action, since it was made before his purchase from D. J. Childs. Judge Scott concurring, the judgment is affirmed.