Dunham v. Murdock

By the Court, Savage, Ch. J. This demurrer raises the precise question which was decided at the last October term of this court, in the case of Crane v. French & Wilkins, (1 Wendell, 311.) The sheriff could only sell the interest of Goulding in the partnership property; but neither the sheriff nor the purchaser would have any right to the possession of the property; the other partner, Smith, would have a right to retain possession till the partnership debts were paid, and Goulding’s interest, which was subject to be sold, was merely the surplus, after liquidating the partnership debts. But before any sale was had on the plaintiff’s execution, another execution came against this property, which was liable, in the first instance, to the partnership debts. On this execution, the whole partnership property levied on was sold. There remained, nothing, therefore, in the sheriff’s bailiwick from which he could make the plaintiff’s money. This is precisely what the sheriff has said by his return. The return is therefore true. All the plaintiff could ask would be to have had the interest of Goulding first sold under his execution. Had he done so, the purchaser would have purchased nothing but a right to the surplus; the sheriff could not deliver possession of any thing. But the second execution coming, the sheriff must have sold the same property on that execution, and having [555] exhausted the whole of it, the first purchaser would have had nothing from his purchase, except, perhaps, a suit in chaneery. The plaintiff’s situation would have been no better than it is now. We think the course pursued by the sheriff the proper one, first, to sell the property for satisfaction of the debt which is entitled to preference, and if any part had remained, then he should have sold Goulding’s interest therein; but, as the whole was exhausted,.he was justified in making the return which he did. In my opinion, the defendant is entitled to judgment on the demurrer to the third count of the plaintiff’s declaration.