Stout v. . McNeill

SMITH, C. J., (after stating the case). Before proceeding to the consideration of the imputed error in the ruling, we call attention to the fact that the sheriff is improperly made a party in the cause, when the remedy by an injunction is sought, for when it issues against the defendant, it requires him to countermand any authority given to agents in contravention of the order, and so refrain from using the public agencies through which he must proceed in doing the forbidden act. In Edney v. King, 4 Ired. Eq., 465, Ruffin, C. J., uses this language, speaking of the introduction of the. clerk and sheriff as parties defendant in the suit: “ Those persons were most improperly made defendants, as they are merely ministers of the law, and have no interest whatever in the controversy. Upon notice of the injunction it would, it is true, have been a contempt in the sheriff to proceed on the execution, but to that purpose notice would have been sufficient.” This matter of practice has since been affirmed in Lackay v. Curtis, 6 Ired. Eq., 199, and in McLane v. Manning, Winston, 608. The inquiry is, did what previously took place looking to an assignment to each of the debtors, with their consent, vest an irrevocable right in the plaintiff to have his exemption taken out of the partnership goods which had been levied on, and were in the sheriff’s hands? *4 Now, it is plain that partnership effects ought to be first applied to partnership debts, and each partner has a right to require this to be done in his own exoneration, the separate interest of each being in the surplus left after the partnership liabilities have been discharged. The whole subject is considered and discussed in Allen v. Grissom, 90 N. C., 90, rendering its further consideration needless. In consequence of the absence of any direct lien or equity to be asserted by the creditors themselves against the property of the partnership debtors, and that it must be worked out through the individual partners in self-exoneration, their interests being similar, it follows that if they so choose, they may divide the joint property, and each thereafter hold his share in severalty, leaving their joint debts unpaid. Upon this principle it was decided in Burns v. Harris, 67 N. C., 140, that while one of the several partners cannot, as of right, have his exemption out of the partnership effects to the prejudice of creditors, it may be done with the consent of all, and this ruling is followed in the late case of Scott v. Kenan, 94 N. C., 296. The assent thus required must be positive and voluntary, remaining, at least, if terminable even then, until the allotment has been made, liable in the meantime to be recalled at the pleasure of any one of the members of the firm, and ceasing when so recalled. Indeed, the common effects, properly are applicable to the common liabilities, and their diversion to the personal advantage of the members when the creditors are unpaid, though legally capable of being done, is little short of, and may, as involving an intent to defraud, be carried so far as to amount to a remedial wrong. But however this may be, it is certainly in the power of any partner upon whom the wrong is consummated, to withdraw his consent and demand that the creditors be first paid, and such is the present case. *5 It was suggested in the argument for the appellant, that the giving the consent of each to an appropriation of the effects to the other as a personal property exemption, amounts to a contract between them by which each is hound. We do not so understand the case, and the validity of such an agreement, if made, may well admit of question, as an attempt to withdraw property seized under execution and subject to the lien resulting from the levy, to the injury of the creditor. But here it is an assent given to the sheriff, and before he has acted upon it, recalled, and he required to proceed under the writ. It is true this is mutual, and the inducement to each may have been, and doubtless was, the advantage he was to receive to himself, but the assent is the several act of each given to the officer, and is a matter between them. Why should there not he a reserved right to arrest the doing an act of injustice to the creditor, and the consummation of a meditated wrong? The facts do not show a contract, nor a consideration for a contract, between the partners, and only an assent to the proposed allotment, and not less revocable than it would be if it was limited to the plaintiff, and he alone was to have his exemption. We have considered the case upon the findings of fact by the Court, because the case is thus presented to us by counsel, not intending to deny their right to have the evidence reviewed, and the facts ascertained de novo, had counsel so demanded; and further, we may add, that we do not see how, if we had passed upon the evidence, we could have arrived at conclusions different from those of the Judge. Jones v. Boyd, 80 N. C., 258, and other cases. There is no error, and the judgment must he affirmed. No error. Affirmed.